By James L. CurtisAdam R. YoungScott Hecker, and Craig B. Simonsen

Seyfarth Synopsis: Federal OSHA is warning Arizona, South Carolina, and Utah that they risk a federal takeover of their worker safety programs unless they adopt a federal emergency temporary standard (ETS) protecting health-care workers from COVID -19.

OSHA published its first COVID-19 ETS on June 21, 2021, which requires health care industry employers to provide masks, physical barriers, social distancing and proper ventilation to ensure their employees were protected from COVID -19. The ETS affected an estimated 10.3 million workers.

States that operate their own “OSHA State Plan,” with U.S. DOL approval, were then required to adopt their own COVID-19 ETS for health care that was at least as protective by July 21. 22 state plans that cover private-sector workers: most states adopted the federal ETS verbatim. Arizona, Utah and South Carolina have not adopted any part of OSHA’s ETS or an equivalent despite the agency’s “good-faith” efforts to bring them into compliance, according to DOL.

OSHA sent courtesy letters to the states October 19, 2021 informing them that they face wholesale decertification of their OSHA state plans, for failure to protect employees with a health care ETS. The agency will publish a notice for each state in the Federal Register announcing its proposal to revoke approval of the State Plan. This will trigger a 35-day comment period by the state plans and other interested parties. OSHA then will determine how to move forward after publishing the notice and reviewing the comments. The decertification process is a lengthy one. In the recent past, OSHA considered withdrawing its approval of Arizona’s state plan when OSHA determined that Arizona’s residential construction fall protection standard was not at least as effective as federal OSHA’s. After a number of years, Arizona avoided decertification by adopting OSHA’s residential construction standard.

Of course, the three state plans could do the same and adopt the federal COVID-19 ETS in the interim, which likely would resolve the dispute. Each of the states have Republican governors and have expressed opposition to elements of the COVID-19 health care ETS and/or proposed vaccination regulations.

Meanwhile, OSHA is currently preparing to release a second COVID-19 ETS, which would apply to all employers with 100 or more workers, and would require vaccination or regular surveillance testing. The agency sent a draft of the rule to OMB earlier this month, indicating that its release is imminent. OSHA’s proposed COVID-19 vaccination and testing ETS is the focus of ongoing meetings between the White House, business groups, and worker advocacy organizations. The White House’s Office of Information and Regulatory Affairs met with the HR Policy Association Thursday and is set to hold meetings Friday and next week, suggesting a delayed roll-out of the draft regulations.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.