The Occupational Safety and Health Administration (OSHA) has threatened to revoke the authority of the Industrial Commission of Arizona to regulate Arizona worker safety.

OSHA’s threat, stated in a letter to Commission director James Ashley, stems from “Arizona’s continued failure” to adopt the Biden Administration’s COVID-19 Healthcare Emergency Temporary Standard (Healthcare ETS) in place of Arizona’s allegedly “less effective” State Plan.

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OSHA issued the Healthcare ETS in June 2021. It includes measures for the healthcare industry such as:

• Having a written plan to mitigate the spread of COVID-19;

• Providing personal protective equipment to workers;

• Ensuring social distancing where possible; and

• Providing paid time off for workers to become vaccinated or recover from side effects.

Because Arizona had laws and regulations in place that would potentially address the contents of the ETS, in July 2021 the Industrial Commission requested certain deviations that would exempt the state.

Specifically, Arizona law already permitted employees to use earned paid sick time to be vaccinated and tested for COVID-19 and to deal with business or school closure or quarantine. Those provisions are in addition to allowing employees to use paid sick time for actual illness. Additionally, Arizona law prohibits retaliation against employees and provides whistleblower protection.

Arizona Gov. Doug Ducey called the OSHA threat “nothing short of a political stunt and desperate power grab.”

“The ICA is actively engaged in a public input process, encouraging Arizonans from every corner of the state to participate,” Ducey stated, “and now the Biden administration is attempting to silence input from citizens and stakeholders alike. We won’t allow it without a fight.” (See “Governor Ducey Statement on OSHA Overreach.”)

State Safety Plans. In part to localize workplace safety enforcement, OSHA allows states to implement a State Plan under which a state oversees worker safety within its boundaries. Under federal regulations, a State Plan must be “at least as effective” as federal programs.

OSHA approved Arizona’s State Plan in 1985, and the state’s regulation of worker safety has continued without interruption for more than 36 years.

Federal Intervention. If OSHA makes good on its threat, regulation will revert to Washington, D.C., and Arizona employers would be forced to deal with a distant federal bureaucracy and comply with more arbitrary, one-size-fits-all safety regulations and enforcement.

 

Andrew Wenker (480-534-4879 or awenker@lang-klain.com) is a construction and OSHA regulation attorney at Lang & Klain, P.C., in Scottsdale.