Fed-OSHA . . . Coming To A State Near You?

The OSHAct provides that a State may operate its own OSHA program so long as the program is “at least as effective as Fed-OSHA’s program.” As a result, there are 27 State-OSHA Plans. Some of the Plans are quite good.

Traditionally, Fed-OSHA has largely left State-OSHA programs alone. In 1988, the California Governor briefly turned over the administration of Cal-OSHA to Fed-OSHA “to save money.” Fed-OSHA briefly took over NC-OSHA after a terrible poultry plant fire in 1992.  NC-OSHA is now a fine organization.

However, the current Administration appears to prefer a more centralized approach in which State OSHA Plans dutifully follow all Federal direction. In response, the State OSHA  Plan Association has regularly aired its disagreements with Fed-OSHA’s more enforcement-driven and/or centralized approach. State Plans may feel that their approach is more effective than the tone or strategy pursued by Fed-OSHA.

One of Fed-OSHA’s early efforts in 2008 was to establish a monitoring office and to “assist” Nevada-OSHA after the City center experience and the Las Vegas Sun attacks on Nevada OSHA (which is actually a good organization). Fed-OSHA then began a more in-depth approach to Federal Annual Monitoring and Evaluation (FAME) review of all State Plans, often culminating in critical annual reports. As an example, see the March 31, 2011 Inspector General Reports and OSHA Response to the OIG. OSHA held a Stakeholder Meeting in June 2012 to discuss State Plan effectiveness.

And in September 2012, Hawaii and Fed-OSHA signed a voluntary agreement for Fed-OSHA to take over inspection of general industry and manufacturing businesses after state leaders said that budget cuts and personnel turnover had felt the State Plan was unable to meet its obligations. This agreement runs through 2015.

Arizona OSHA and Residential Fall Protection

Now we witness the standoff between Fed-OSHA and Arizona OSHA (ADOSH) regarding Residential Fall Protection. Fed-OSHA first challenged ADOSH’s approach to residential fall protection during the FAME Review.  ADOSH follows a State Law and not OSHA’s revised Residential Fall Protection Directive.

On December 7, 2012, Fed-OSHA served on ADOSH, a three allegation Complaint About State Program Administration (CASPA). Fed-OSHA concluded that one item had merit; ADOSH’s alleged failure to implement OSHA Directive STD 03-11-002, Compliance Guideline for Residential Construction. Fed-OSHA asserted that ADOSH’s enforcement of  Arizona SB 1441  does not protect workers in residential construction between 6 and 15 feet.

ADOSH defended itself with a December 11 response that its application is equally effective. ADOSH asserted further that Fed-OSHA has not identified objective criteria to measure the effectiveness of a State Enforcement Program. ADOSH concluded its detailed response by stating that “ADOSH does not anticipate taking further action at this point.”

The proverbial ball is in OSHA’s court. As threatened, will Fed-OSHA now take over ADOSH’s inspection of residential construction?

IS the ADOSH Dispute an Isolated Instance or Part of a trend?

The conventional wisdom has been that the current Fed-OSHA Leadership wants State OSHA Plans to march in lock step with Fed-OSHA, but does not want to take over programs because of practical and legal challenges.

The interesting question, though, is, how far will Fed-OSHA go to impose more control over State Plans?

The ADOSH dispute is arguably a straightforward challenge to Fed-OSHA, and a number of groups, such as the Arizona ASSE, and various employers also disagree with Arizona’s position.   The important question is whether Fed-OSHA will increasingly roll up its sleeves in confronting State Plans on less clear challenges?

We would suggest that employers monitor this situation and any possible trend.  This is not an arcane safety nerd subject, as those of you with operations in many states may realize.

Employers should also learn the differences in how  State Plans operate. Even within the Federal system, Regions and Area Offices take different approaches.  moreover, some State Plans have different reporting requirements or Contest procedures.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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