By James L. CurtisAdam R. YoungA. Scott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: On April 20, 2022, the U.S. Department of Labor (DOL) announced a proposal to reconsider or revoke Arizona’s State OSHA plan, which may lead to federal OSHA takeover regulation of private employers in the state. 87 FR 23783 (4/21/22).

23 states operate OSHA state plan agencies that regulate private employers. Under the OSH Act, those state plans must adopt and enforce standards that are at least as strict as the federal standards. The federal government maintains oversight over those states.

Where OSHA determines that a state plan is failing to issue regulations and pursue enforcement at a level that is at least as effective as federal OSHA’s, the agency may initiate proceedings to revoke final approval, and reinstate federal concurrent authority over occupational safety and health issues covered by the state plan. With regard to the Arizona state plan, DOL’s new press release explains:

OSHA has grown increasingly concerned that actions by the Arizona State OSHA Plan suggest the state is either unable or unwilling to maintain its commitment to provide a program for worker safety and health protection as the OSH Act requires. OSHA indicate that Arizona has failed to adopt adequate maximum penalty levels, occupational safety and health standards, National Emphasis Programs and – most recently – the COVID-19 Healthcare Emergency Temporary Standard.

The agency asserts that Arizona has engaged in a “nearly a decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as” federal OSHA’s.  The last straw may have been Arizona’s lack of response to OSHA’s October 19, 2021 “courtesy letter” concerning the State’s failure to adopt OSHA’s COVID-19 healthcare emergency temporary standard (ETS) within 30 days of its June 21, 2021 publication in the Federal Register. South Carolina and Utah also received such letters, but those States subsequently issued ETSs  Arizona did not.

OSHA’s proposal on Arizona decertification is available for public inspection in the Federal Register and will be published on April 21, 2022; publication starts the revocation process. The public can comment on the proposal until May 26, 2022, and an online hearing may be held on August 16, 2022. After considering comments, testimony, and other evidence, OSHA will announce its reconsideration and revocation decision on the final approval of Arizona’s State plan through another Federal Register notice.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.