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October 29, 2021
Governors object to OSHA actions on state plans

The governors of Arizona, South Carolina, and Utah all objected to plans by the federal Occupational Safety and Health Administration (OSHA) to revoke federal approval of their states’ safety and health programs. The agency alleges the three state programs are less effective than federal safety and health enforcement because the states have not adopted OSHA’s June 21 healthcare COVID-19 emergency temporary standard (ETS).

“The federal government’s threat to strip the [Industrial Commission of Arizona (ICA)] of its OSHA authority is nothing short of a political stunt and desperate power grab,” Arizona Governor Doug Ducey said in a statement. “The ICA is actively engaged in a public input process, encouraging Arizonans from every corner of the state to participate, and now the Biden administration is attempting to silence input from citizens and stakeholders alike. We won't allow it without a fight.”

The Arizona Division of Occupational Safety and Health (ADOSH), a division of the ICA, administers the state’s federally approved workplace safety and health program. In 2014, OSHA threatened to revoke ADOSH’s authority in a dispute over the state’s fall protection standards. The state updated its standards to conform to federal requirements.

South Carolina plans a “vigorous and lengthy legal fight” against federal revocation of the state’s OSHA program, Governor Henry McMaster said in a tweet.

Utah also objected to planned federal intervention. “We reject the assertion that Utah’s State Plan is less effective than the federal plan,” Utah’s governor, Spencer J. Cox, and Lieutenant Governor Deidre Henderson said in a public statement.

“While we have not refused to adopt standards set by the Occupational Safety and Health Administration (OSHA), we will ask once again for an opportunity to engage with the Biden administration about our legitimate concerns complying with the proposed Healthcare ETS.”

The governors of Utah, Wyoming, and Nebraska expressed concerns about the healthcare ETS in a July 21, 2021, letter to Secretary of Labor Marty Walsh, saying the emergency rule would place an unfair burden on the healthcare industry and noted that their states do not have regulatory authority to require employers to pay their employees sick leave. 

The healthcare ETS only applies to healthcare facilities and healthcare support services where employees may be exposed to COVID-19. Provisions of the emergency rule include developing a written workplace infection control plan, a “mini-respiratory protection program,” and paid leave for vaccination and recovery from vaccine side effects.

Businesses with fewer than 500 employees may receive reimbursement for paid leave expenses through tax credits under the American Rescue Plan, according to OSHA.

On September 9, the White House announced plans for a second OSHA ETS to require employers with 100 or more employees to vaccinate all their employees or test them weekly for COVID-19 infection.

States with OSHA-authorized state plans have 30 days after the federal agency adopts an ETS to adopt an emergency rule “as least as effective” as the federal rule.

There are 22 approved state plans covering both private sector and state and local government workers. Six states, including Connecticut, New Jersey, and New York, have programs covering only state and local government workers.

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