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.”
No rule on post-incident drug testing or incentive programs in the near future
OSHA has withdrawn its attempt to clarify its stance on post-incident drug testing and safety incentive programs “in order to focus resources on other agency rulemaking priorities.”
In October 2018, OSHA issued a memo that allowed for post-incident drug testing in certain situations. That superseded an Obama administration memo in October 2016 that prohibited those tests for employees who report injuries or illnesses, unless an employer had an “objectively reasonable basis.”
OSHA’s stance on safety incentive programs has evolved in three memos issued over the past decade. The first memo, issued in March 2012, deemed those types of incentive programs “problematic” under section 11(c) of the OSH Act. Taking away an incentive for reporting an injury “could be considered unlawful discrimination” against an employee.
The agency attempted to clarify its stance in October 2016 after publishing its Improve Tracking of Workplace Injuries and Illnesses final rule in May of that same year. OSHA stated that 1904.35(b)(1)(iv) in the final rule didn’t prohibit safety incentive programs. However, withholding a benefit such as a cash prize or “other substantial award” because an employee reported an injury would violate that regulation.
In the 2018 memo, OSHA stated that employers could have rate-based programs as long as those programs “are not implemented in a manner that discourages reporting.”
Withholding a prize or bonus because of a reported injury is allowed “as long as the employer has implemented adequate precautions to ensure employees feel free to report an injury or illness.”
The memo states: “An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates.”
Standards update
Andrew Levinson, acting director of OSHA’s Directorate of Standards and Guidance, provided some other updates during the NSC webinar on the agency’s current activities.
OSHA is expected to issue a notice of proposed rulemaking regarding an update to its standard on lockout/tagout (1910.147), perhaps as early as January. Levinson said the NPRM will address computer-controlled lockout/tagout equipment, which aren’t configured for physical locks to be attached.
Also forthcoming is an update to the standard on walking-working surfaces (1910.22). Levinson said the update will involve “cleaning up a couple of little things in the prior standard to look at handrail heights and some tread issues.”
Later this month or early next year, OSHA will convene a Small Business Advocacy Review panel, also known as a Small Business Regulatory Enforcement Fairness Act panel, to discuss its standard on the prevention of workplace violence in health care and social assistance.
A report from an SBAR panel on emergency response and preparedness also will be coming soon.
OSHA is expected to conduct a stakeholder meeting regarding its standard on process safety management and prevention of major chemical incidents. The agency also will likely issue an advance notice of proposed rulemaking on blood lead level for medical removal.
“We’re not changing the PEL,” Levinson said. “This is just the trigger for medical removal, essentially an action level.”
