Fall 2021 regulatory agenda: OSHA considers revoking Arizona’s State Plan status

Washington — The Department of Labor’s regulatory agenda for Fall 2021, released Dec. 10, includes a proposed rule that – should OSHA decide to move forward on it – would revoke Arizona’s State Plan status.

The agenda – issued by the Office of Information and Regulatory Affairs twice a year – provides the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. Listings marked “long term” aren’t expected to be worked on for at least six months.

Arizona is the lone state that hasn’t issued an emergency temporary standard on COVID-19 for health care workers. OSHA published its ETS in June, and State Plan states had 30 days to adopt their own standard.

Arizona, South Carolina and Utah didn’t meet that deadline. The latter two states, however, have since issued an ETS after federal OSHA reportedly sent “courtesy letters” to notify them of the agency’s intent to begin the revocation process.

The Occupational Safety and Health Act of 1970 permits OSHA to grant approval to states that want to manage their own workplace safety and health program. One stipulation for approval, however, is that the states’ safety standards are “at least as effective” as federal standards. State standards can be stricter than federal OSHA’s standards but not weaker.

Should Arizona’s State Plan status be revoked, the state would go back to an “initial approval” status, and federal OSHA would share enforcement duties with the state, or “concurrent enforcement.”

Former OSHA Deputy Assistant Secretary Jordan Barab noted on his website, Confined Space, that Arizona’s public employees would lose OSHA coverage if federal OSHA takes over the State Plan.

This may not come to fruition, however, because the Industrial Commission of Arizona has moved forward with an ETS for health care workers, an ICA official told Safety+Health. The state has filed a “rulemaking packet” with its attorney general’s office. That’s one of the final steps in the state’s emergency rulemaking, according to the Arizona Rulemaking Manual.

OSHA still might issue the proposed rule before the end of the month, according to the regulatory agenda’s posted timeline, but the agency would likely need at least another 30 days after that for a comment period, giving Arizona even more time to publish its ETS.

During a webinar on OSHA current activities hosted by the National Safety Council on Dec. 9, Doug Kalinowski, director of the agency’s Directorate of Cooperative and State Programs, said OSHA remains in “routine and constant contact” with Arizona through its national and regional offices.

“We’ll continue to work with them and do what we need to do to ensure that they do meet the requirements of the State Plan,” Kalinowski said. “It’s not fair for those employees in Arizona to have different protections than, say, Montana or Illinois or Texas.”

In other State Plan news, the regulatory agenda shows that the Massachusetts Department of Labor is working on developing its own plan to cover state and local government employees. OSHA is expected to issue a notice of proposed rulemaking sometime around May and will solicit public comment on “whether or not initial State Plan approval should be granted.”