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.