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February 15, 2023
OSHA withdraws Arizona state plan revocation

On February 15, the Occupational Safety and Health Administration (OSHA) withdrew its proposed revocation of Arizona’s state workplace safety and health program (88 Fed. Reg. 9796). The federal agency had proposed withdrawing final approval of the state’s plan after Arizona failed to adopt OSHA’s healthcare COVID-19 emergency temporary standard (ETS).

The Industrial Commission of Arizona (ICA) had determined that the state could not adopt the ETS that OSHA issued on June 21, 2021, solely based on the agency’s findings of “grave danger” and “necessity” but would need to make independent findings of “grave danger” and “necessity.” On April 21, 2022, OSHA proposed revoking final approval of Arizona’s state plan because of the state’s failure to adopt the healthcare COVID-19 ETS and other program shortcomings.

The federal agency also concluded that the state failed to adopt:

  • A National Emphasis Program (NEP) on Amputations in Manufacturing Industries (CPL 03-00-022) and an NEP on Respirable Crystalline Silica (CPL 03-00-023);
  • Final occupational safety and health standards—the Beryllium Standard for Construction and Shipyards, Cranes and Derricks in Construction, and the Standards Improvement Project (Phase IV); and
  • Penalty levels that are at least as effective as federal OSHA’s.

Most provisions of the healthcare COVID-19 ETS have expired, but OSHA retained the emergency rule’s recordkeeping requirements. OSHA has also developed a permanent, but not yet final, healthcare COVID-19 standard the agency submitted December 7 to the White House Office of Information and Regulatory Affairs for regulatory review.

Steps taken by the state to address federal OSHA’s concerns included:

  • Adopting the recordkeeping and COVID-19 log requirements in OSHA’s COVID-19 healthcare ETS;
  • Adopting outstanding final rules—Beryllium in Construction and Shipyards, Cranes and Derricks in Construction (Railroad Roadway Work), and Standards Improvement Project Phase-IV (SIP-IV);
  • Adopting an increase to its minimum penalties for serious and nonserious violations to match OSHA minimum penalty levels and passing a law to ensure the state’s future maximum and minimum penalty levels will match OSHA’s annual penalty level adjustments; and
  • Passing a state law to authorize the adoption of an ETS when either the ICA or OSHA deems the grave danger criteria are met.

The Arizona Division of Occupational Safety and Health (ADOSH) also clarified that the state had adopted the two NEPs and provided OSHA with documentation of the state’s adoption of the trenching and excavation NEP.

Had OSHA revoked its final approval of Arizona’s state plan, federal inspectors would have resumed enforcement in the state. OSHA previously considered revoking approval for Arizona’s state plan in a yearslong dispute over Arizona’s fall protection standard, which federal OSHA considered less effective than the federal standard.

OSHA granted visa certification authority

On February 13, Secretary of Labor Marty Walsh signed a memorandum granting OSHA the authority to issue certifications in support of applications for U Nonimmigrant Status and T Nonimmigrant Status visas.

“U Visas” and “T Visas” allow victims of specific crimes to help law enforcement officials investigate and prosecute crimes without fear of retaliation based on their immigration status. The visas provide immigration status to noncitizens who may be victims of human trafficking and other crimes, allowing them to remain in the United States to assist federal officials. OSHA’s new authority enables the agency to issue visa certifications during its workplace safety investigations when it identifies qualifying criminal activities, such as extortion, felonious assault, forced labor, manslaughter, trafficking, and obstruction of justice.

“By enabling OSHA to issue U and T visa certifications, we will be empowering some of our economy’s most vulnerable workers to tell us if their jobs are jeopardizing their safety and health, and that of their co-workers, and to support our enforcement efforts,” Assistant Secretary for Occupational Safety and Health Doug Parker said in an agency statement.

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