OSHA requires State Plan programs to be “at least as effective” as federal OSHA. Recently, one state allegedly failed to meet that criterion, and it raises an important question that – shockingly – still has no good answer: What is OSHA’s definition of “effectiveness”?
To make a long story short, Arizona’s Industrial Commission sought to change its regulations concerning fall protection for residential construction. In March, OSHA determined that the state’s revision fell short of OSHA’s standard, and the state program would subsequently not be as effective as federal OSHA. The federal agency then threatened to take over the state’s oversight of the construction industry.
In response, Arizona claims federal OSHA has never defined what constitutes “at least as effective.”
“OSHA is holding Arizona’s State Plan to a standard that is unattainable – simply because it is undefined. This is improper,” Jackson Lewis attorney Bradford Hammock, who is representing the state, said.
This is not an entirely new issue for the federal agency. A 2011 Department of Labor Office of Inspector General report recommended that OSHA define effectiveness and how to measure it, noting that state officials have expressed concern over the lack of clear expectations for effective programs.
That report itself was spurred by complaints about Nevada’s State Plan program, which had been widely criticized following a serious of construction fatalities. Federal OSHA was likewise criticized for poor oversight of state programs.
Two years ago, OSHA convened a meeting with stakeholders to discuss definitions and measures to determine whether State Plans are at least as effective as federal OSHA. Since then, according to Arizona’s letter, the agency has done nothing further to clarify what “at least as effective” means.
When contacted to discuss the letter, an OSHA spokesperson said the agency was in the process of determining its response and was unable to provide additional information.
So in the meantime, the 26 other State Plan programs may want to stay on their toes.
“The Industrial Commission is concerned that it is being judged against a standard that has yet to be established,” Bradford said in the letter. “Arizona is faced with this issue now, but other OSHA State Plans will likely be in the same position in the future.”
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