Washington Update: Improving relations

How close is federal OSHA to pulling Arizona’s oversight of the state’s construction industry? Just a few feet, apparently.

The federal agency is considering revoking the Arizona Division of Occupational Safety and Health’s “final approval” status as a State Plan amid a dispute regarding the state’s fall protection requirements.

Arizona passed a law in 2012 requiring fall protection in residential construction for workers at heights of 15 feet or more, but federal OSHA requires such protection to begin at 6 feet. OSHA investigated the state’s standard and determined it was not “at least as effective as” the federal standard.

Half of the states in the country operate their own occupational safety and health program. By law, many aspects of those programs, including standards and enforcement, must meet this “at least as effective as” test.

In response to OSHA, the Arizona legislature passed another bill revising the previous law, but federal OSHA considers the changes to be minor – the state’s 15-foot trigger height for conventional fall protection remains unchanged. As a result, OSHA this past summer began considering overseeing Arizona’s entire construction industry.

Arizona wrote a letter to OSHA on Sept. 25 asserting that the state’s rule was indeed “at least as effective as” the federal agency’s standard, citing injury and fatality figures that are lower than both the national average and states covered by OSHA’s standard.

At press time, the dispute between Arizona and federal OSHA had not been resolved. If the federal agency takes over Arizona’s construction enforcement, it would be “largely unprecedented,” according to Michael Wood, chair of the Occupational Safety and Health State Plan Association and Oregon OSHA administrator.

Although Wood refrained from talking specifics on the Arizona dispute, he noted that at least four other states have a fall protection trigger threshold lower than federal OSHA, including Oregon. Since the controversy surrounding ADOSH’s standard began, federal OSHA has written to those four states asking them to formally explain why they believe their standards are effective.

Resolving disputes

The relationship between State Plan states and federal OSHA is complicated. State Plan states aren’t simply satellite offices of federal OSHA – they are their own entities that can receive direction from their state legislature. However, this can lead to problems, as seen in the Arizona case.

If a state legislature-directed standard falls short of the “at least as effective as” requirement, the state OSHA program is put in a hard spot. On one hand, the program has to follow direction from the state. On the other hand, a large portion of the agency’s funding comes from a federal government grant.

“What is true with all of us, we can’t operate without federal approval,” Wood said. “Our laws are null and void unless they are exercised as part of a state program.”

When federal OSHA believes a State Plan is not meeting the “at least as effective as” requirement, it will communicate its concerns and ask for the State Plan’s viewpoint. Federal OSHA attempts to resolve disputes through a “mutually acceptable solution,” an agency spokesperson said.

Ultimately, it’s an all-or-nothing deal: If federal OSHA insists on a change the state refuses to implement, the federal agency can either do nothing or pull the State Plan’s oversight, at least in part.

Wood said federal OSHA is responsive to arguments made by State Plan states, although it’s not always smooth sailing. He pointed out that after several high-profile construction deaths in Nevada in 2007, as well as subsequent scrutiny regarding federal OSHA’s oversight of State Plans, State Plan program monitoring became more aggressive. However, Wood – who has been involved with State Plan states for two decades – does not find this unusual; the federal agency has had other periods during which it closely analyzed the state agencies.

In more recent years, the monitoring has turned less aggressive and federal OSHA has engaged more with states, including on how annual reports on the programs should be conducted. The federal agency has also offered opportunities for State Plans to become involved in the creation or revision of policies, the OSHA spokesperson said. From an audit standpoint, federal OSHA is micromanaging the states less and not over-reacting as often to issues that arise, Wood claimed.

“By and large, what most states say – even the states who say it’s kind of bad – will tend to say it’s better,” he said.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.