OSHA to States: Protect Workers from Covid-19 or Forfeit Authority

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts.

In a rare move, federal labor officials have threatened to take over three states’ workplace safety programs because they failed to adopt emergency Covid-19 rules to protect health care workers.

That admonition, labor advocates say, also serves as a thinly veiled warning that resisting the forthcoming federal vaccine mandate for most health care workers and employees at large companies likewise could cost states their regulatory power over workplace safety.

“This is definitely an effort to send a message that [the Occupational Safety and Health Administration] is going to take any defiance of the next standard very seriously,” said Jordan Barab, who served as OSHA’s deputy assistant secretary of labor during the Obama administration and now writes a blog about workplace safety issues.

Earlier this month, OSHA sent the White House a proposed rule that would require companies with 100 or more employees to mandate vaccination or regular testing. President Joe Biden has called for an expedited rulemaking process, and some labor experts think the agency could publish the new rule any day. The mandate would take effect immediately.

OSHA’s crackdown on Arizona, South Carolina and Utah is based on the agency’s June emergency standard for health care workers that included requirements for physical distancing, cleaning, physical barriers, personal protective equipment, ventilation and other protections. Most states fell under that emergency rule automatically, but 21 states maintain their own workplace safety agencies for private sector employers. Those states must meet or exceed OSHA standards.

The feds say Arizona, South Carolina and Utah have failed the “at least as effective” test by refusing to match their standards to the new federal rule. 

“OSHA has worked in good faith to help these three state plans come into compliance,” said Jim Frederick, the agency’s acting director, on a conference call with reporters. “But their continued refusal is a failure to maintain their state plan commitment to thousands of workers in their state.”

The agency had required states to comply with the June standard within 30 days. While some have taken longer, OSHA ultimately singled out the trio based on their active resistance rather than bureaucratic hang-ups.

Trevor Laky, legislative affairs chief with the Industrial Commission of Arizona, the state agency that oversees health and safety laws, said Arizona has made efforts to comply, but that officials are committed to putting the new standards through a full rulemaking process with public comment. That procedure takes much longer than the emergency rule action taken by OSHA.

“Our opinion that good public policy requires good public input is pretty steadfast,” Laky said. He did not say whether the agency will change course in response to the threat from OSHA to revoke its power. 

But labor advocates say the public input argument is simply a delay tactic. 

“They’re dragging it out to not comply,” said Rebecca Reindel, director of occupational safety and health for the AFL-CIO, a national federation of unions. “Arizona is pretending to be clueless here, but they’ve known what their obligations are. The whole point is to get these protections in place for people immediately.”

Worker advocates in Arizona say state officials have been unresponsive to safety concerns throughout the pandemic, simply ignoring some complaints. Workers would like to see the state agency take on a stronger role, said Shefali Milczarek-Desai, an assistant law professor at the University of Arizona who directs the school’s Workers’ Rights Clinic, which provides free legal aid to low-wage workers. Failing that, labor advocates say an OSHA takeover might be the best option for workers.

“Without seeing what the federal agency is capable of doing, it's hard to predict, but at this point anything would be better than what the Industrial Commission is doing, which is virtually nothing,” said Milczarek-Desai.

Earlier this month, National Nurses United, a union and professional organization, filed a complaint with federal OSHA that accused Arizona of neglecting its responsibility to meet the national standard.

“There are really egregious health and safety issues in Arizona that wouldn’t be happening if the [OSHA] standard was being enforced,” said Jane Thomason, the group’s lead industrial hygienist. “The Industrial Commission has made it very clear they don’t think this is an emergency situation anymore, and they have very little interest in acting promptly.”

OSHA has never taken away a state’s power to regulate its workplaces, according to Barab, the former OSHA official. 

“This is pretty rare,” Barab said. “States really have to openly defy a clear mandate for OSHA to take action.”

In 2014, OSHA threatened to take oversight of Arizona’s construction industry after the state failed to comply with fall protection rules for workers on ladders, roofs and scaffolds. The state ultimately moved to match the federal standard.

“They resisted until the last moment and then conceded,” Barab said.

In 2012, Hawaii voluntarily gave up its regulatory authority due to budget and staffing issues, but regained oversight in 2017 as part of a new agreement with OSHA.

Earlier this month, Utah Labor Commissioner Jaceson Maughan told state lawmakers that his agency was planning to stall on the coronavirus rules until the federal health care rule expired in December. He said the risk of OSHA reprisal was low, given the lengthy process preceding threats issued in the past. 

“It’s doubtful OSHA would start the process to invalidate a state plan,” he said at a legislative committee meeting. “I think there would be multiple letters, multiple requests, a demand that it’s adopted and then some more discussions.”

The safety standard fight could preview a similar battle over a federal vaccine requirement.

Twenty-four state attorneys general, all Republicans, have pledged to wage a legal battle against the vaccine mandate that Biden has directed OSHA to draft. Eight of them hail from states that retain workplace safety authority—Alaska, Arizona, Indiana, Kentucky, South Carolina, Tennessee, Utah and Wyoming.

Barab said he would not be surprised to see half a dozen states openly resist the vaccine rule by delaying or refusing adoption of the federal standard. 

Such pushback would set up a major clash between those states and federal regulators. OSHA offered Stateline background information about its announcement but did not respond to a question about the vaccine mandate.

In South Carolina, Republican Gov. Henry McMaster called OSHA’s threat a “preemptive strike” to assert federal power ahead of the vaccine mandate. He vowed a legal battle to challenge the takeover.

But regulators in other Republican states are not as eager to pick a fight with the feds. In Tennessee, state lawmakers this week directed the Tennessee Occupational Safety and Health Administration to defy OSHA’s emergency mandate for health care workers. But state regulators rejected that demand, Nashville public radio station WPLN reported.

“It is increasingly important that TN-OSHA remain in full standing as a state plan without inviting additional federal oversight, federal interpretation and federal enforcement of safety and health standards in Tennessee,” Labor Commissioner Jeff McCord said in a letter to state lawmakers.

Labor experts say they have little idea whether some states are willing to sacrifice their regulatory autonomy to take an ideological stand on vaccines. But it’s likely the business community would have qualms about such a move.  

In many states that hold workplace safety authority, business leaders prefer that status over federal enforcement. 

“The business community thinks they have a much better opportunity to influence enforcement decisions by lobbying at the state level than they would if they were lobbying at the federal level,” Barab said. “In the instances where we’ve threatened that status, the state was defiant until the business community swooped in and said, ‘No way, we don’t want the feds enforcing the law.’”

Garrick Taylor, executive vice president for the Arizona Chamber of Commerce and Industry, said business leaders in the state do not want to see a federal takeover.

“It's been a long-standing principle that state primacy and oversight is preferable to federal management of these issues,” he said. “The Industrial Commission of Arizona and its Arizona Division of Occupational Safety and Health have been receptive to the needs of job creators while effectively carrying out their mission.”

While Taylor expressed concern about federal intervention, he did not call on state officials to comply with the new standard. Instead, he called the dispute a case of the feds trying to “exert muscle” over states, and pointed to Republican Gov. Doug Ducey’s pledge that “we won’t allow it without a fight.”

Milczarek-Desai, the worker safety advocate, said the chamber’s position is misguided.

“The reason they want the state in charge is because they want little to no enforcement, but that's bad for business,” she said. “But when people come to work sick, it costs businesses, it creates more sick workers. Reasonable employers understand this.”

Labor advocates applauded the agency for its crackdown on states that have resisted Covid-19 safety rules. But they warned that OSHA also needs to ensure states that have accepted those rules are enforcing them. 

“If you have states adopting a paper tiger and not enforcing the standard, that’s problematic too,” said Reindel, the AFL-CIO advocate. “If they’re not following through, why should workers in one state have fewer protections than workers in a neighboring state?”