Arizona Workplace Safety: Update on OSHA’s Proposal to Revoke State Plan – Health and Safety

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On April 21, 2022, the federal Occupational Safety and Health Administration (OSHA) released a proposed rule to revoke final approval of Arizona’s Occupational Safety and Health (OSH) Plan under section 18(e) of the Occupational Safety and Health Act 1970. its opinion, OSHA proposed to revoke its affirmative decision granting final approval to Arizona’s state OHS plan, which, if implemented, would return Arizona’s plan to status “initial approval”, which would result in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH). Written comments were originally due to be filed by May 26, 2022, but the agency extended that deadline to July 5, 2022.

OSHA is basing the proposed revocation on claims that Arizona’s state plan is not “at least as effective as” federal standards. In particular, OSHA points to Arizona’s alleged failure in 2012 to implement fall protection requirements in residential construction, the alleged failure to “timely” adopt various priority national programs and the failure to adopt OSHA’s COVID-19 Temporary Emergency Standards (ETS) for healthcare workers as an “emergency”. ” to reign.

State plans are OSHA-approved occupational safety and health programs operated by individual states. The Arizona State Plan is one of twenty-eight state plans authorized by OSHA.

OSHA received 197 comments on its proposed rule. Here are some notable comments:

The Industrial Commission of Arizona (ICA) and ADOSH strongly reprimanded the proposed rule, questioning “OSHA’s selective presentation of ‘the facts’ in the Federal Register notice and [omission of] quite embarrassing for [OSHA’s] ” deprive[ing]Arizona citizens of notice and comment regulatory protections. Instead, the Arizona Legislature approved and adopted OSHA’s healthcare ETS through its process. normal regulation.

The ICA and ADOSH also stated that OSHA has not defined or provided adequate guidance on defining the “at least as effective as” standard. The state pointed out that the U.S. Department of Labor (DOL) Office of Inspector General concluded in 2011 that OSHA “[h]as [n]oh [w]yes to [m]measure the effectiveness of its [o]wn [p]program, [l]and [a]the effectiveness of state plans. The state also pointed out that if effectiveness is measured by injury rates, state standards are as effective, if not more effective, than national standards. said ICA and ADOSH. The CIA and ADOSH argued that “one of the drivers of its low rates” is Arizona’s ability to understand and focus on “the dangers associated with the industries and businesses located in its state.” .

The Arizona Hospital and Healthcare Association (AzHHA) urged OSHA not to revoke Arizona’s plan, specifically addressing issues related to the temporary COVID-19 emergency standard for healthcare workers. AzHHA commended ADOSH’s response to COVID-19, noting that the agency “acted in good faith to seek clarification on the intersection of the health ETS with other laws and guidelines.” . The AzHHA concluded by noting, “In our experience, ADOSH and its staff have demonstrated a strong commitment to protecting the health and safety of employees while working collaboratively with employers to create a culture of workplace safety. It’s a balance that builds trust, cooperation, and most importantly advances OSHA’s mission to promote health and safety in the workplace.”

The National Association of Home Builders of the United States (NAHB) noted that OSHA’s actions “will have a chilling effect on other states of state plans” that may otherwise be considering changes to their home plans. ‘State. OSHA’s actions could put states in an “untenable position” to assume that “[a]Any slight deviation” from federal standards puts them at risk of having their state plan status revoked. rule-making process.”

On the other side, the National Nurses Organizing Committee/National Nurses United (NNOC/NNU) submitted a comment in support of the proposed action. The NNOC/NNU argued that “ADOSH’s failure to adopt the Covid-19 healthcare ETS not only violated the legal obligations of the state plan, … but it [also] puts nurses and other healthcare workers at significant risk of infection and exposure to Covid-19. in other states.

The proposed rule is currently set for a public hearing on August 16, 2022.

The Ogletree Deakins Occupational Safety and Health Practice Group will continue to monitor and report on developments regarding OSHA’s proposed rule regarding the State of Arizona’s OHS Plan and will post updates. updates to the Arizona and company occupational safety and health blogs as additional information becomes available.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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