OSHA Challenges Several States on COVID-19 Rules

The Occupational Safety and Health Administration (OSHA) might take over workplace safety enforcement in three states the agency said failed to adopt adequate COVID-19 standards for health care workers.

The federal Occupational Safety and Health Act covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, so long as those plans are “at least as effective” as the federal program.

OSHA officials recently cited concerns that state agencies in Arizona, Utah and South Carolina did not adopt COVID-19 standards that are at least as effective as a federal emergency temporary standard (ETS) that the agency issued in June for health care settings.

The news comes as OSHA officials prepare to issue another ETS, which will require private employers with at least 100 employees to mandate that employees get vaccinated against the coronavirus or submit weekly proof of a negative COVID-19 test.

State plans typically have six months to adopt a new OSHA standard or alternative measures that are “at least as effective.” However, state plans have only 30 days to adopt an ETS.

To revoke the state plans, OSHA (which is part of the U.S. Department of Labor), will need to follow a formal process by first publishing a notice in The Federal Register announcing its intent to revoke the state plans. Then, members of the public will have 35 days to comment on the proposal before it can be finalized. Labor Department Solicitor Seema Nanda said the states’ authority to regulate their own workplace safety plans could be revoked entirely or partially for certain industries.

When the White House announced COVID-19 vaccination requirements for federal employees and contractors — and the pending vaccine-or-testing rule for certain private employers — several states responded by initiating their own rules that allow for more exemptions than the federal requirements. This has caused confusion for many business leaders and HR professionals.