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OSHA moves to strip state of ability to regulate worker safety

The federal Occupational Safety and Health Administration is moving to strip Arizona officials of their ability to regulate worker safety in Arizona because of the state’s failure to immediately adopt emergency Covid health care rules to protect workers. 

In a letter Tuesday, James Frederick, OSHA’s acting assistant secretary, said the agency is taking the first steps to rescind its 1985 decision to let the Industrial Commission of Arizona oversee ensuring that safety rules are being enforced. 

“OSHA will be initiating reconsideration proceedings with a proposal to revoke Arizona’s final approval,” he wrote to James Ashley, the commission’s director. 

“Arizona’s ongoing failure to adopt the Healthcare Emergency Temporary Standard is continuously placing healthcare workers at risk as they are deprived of ‘at least as effective’ protections against the grave danger from the hazards of workplace exposures to SARS-CoV-2,” he said, citing the standards that state regulations have to meet to enforce federal safety laws. 

The move to strip the Industrial Commission of its enforcement authority would put the federal agency in charge of enforcing not just the new rules that deal with everything from mask requirements to time off, but every other regulation in the state that governs worker safety, ranging from construction sites to office buildings. 

Trevor Laky, spokesman for the Industrial Commission, denied that the state was acting in ways contrary to the federal rules. He said it’s a fight over both interpretation and timing. 

And Gov. Doug Ducey said the OSHA action is “nothing short of a political stunt and desperate power grab.” 

“We won’t allow it without a fight,” he said in a prepared statement. 

The rules at issue cover a host of Covid-related issues for health care workers. 

For example, they require employers to provide reasonable time for workers to get vaccinated and to cover sick time for vaccine side effects. 

There also are rules for companies to notify employees of exposure to someone with Covid in the workplace within 24 hours of becoming aware. Other provisions include infection control measures that employers must take, like ventilation rates, air filtration levels and requiring everyone in a facility to wear face masks and observe physical distancing. 

And there are protections for workers against retaliation for exercising their rights under the rule. 

The Industrial Commission at first balked at adopting the federal rules, saying that some of what is in there already is covered by state laws and rules. For example, Jessie Atencio, the state’s OSHA director, said that in Arizona workers can use earned paid sick time for Covid testing, vaccination, business closure, quarantine or illness. 

But James Wulff, federal OSHA’s acting regional administrator, said his agency concluded that there were several areas where Arizona law were not “at least as effective” as federal rules, a requirement when states want to have primary enforcement privileges. 

Only thing is, it took OSHA two months to come up with that finding. 

Laky said the Industrial Commission disagrees with OSHA about the effectiveness of the state laws and rules. But Atencio responded last month by telling Wulff that the Industrial Commission will move to adopt the federal emergency rules — but only after public hearings that would further delay implementation. 

Not good enough, said Frederick, saying the state is guilty of failing to act on the emergency rules by July 6 or proposing an alternative by July 21 “without providing any reasonable basis for these failures.” 

Laky said the commission did respond on July 16 with its arguments that state laws and rules were 

sufficient. But OSHA didn’t respond until two months later, making any delay the fault of the federal agency. 

Still, Laky acknowledged, it will take at least another month for hearings and commission action before Arizona could have anything in place. 

Attorney David Selden said if OSHA follows through and takes over worker safety regulation in Arizona, that would be bad news for local businesses. He said employers here have good working relations with the Industrial Commission. 

“They know Arizona, they know Arizona employers,” he said. And Selden, whose law firm also represents employers in states where OSHA has primary enforcement, said putting Arizona into that category would be a setback. 

“It’s a way better arrangement than when you have a federal Department of Labor official who is beholden to people in Washington, D.C. that does not have the same tie to the Arizona community,” he said. 

But attorney Jim Barton who represents labor interests in worker safety cases, said state regulation is a mixed bag. 

On one hand, he said, having safety regulators that are familiar with Arizona employers “is really not going to work for workers.” 

Conversely, he said the Industrial Commission has a lot more inspectors on the ground in Arizona than a federal agency ever could. And that, said Barton, is probably better to ensure worker safety. 

The move by OSHA, though, is being praised by the National Nurses Union. 

In a statement Tuesday, Deborah Burger, the organization’s president, criticized the failure of Arizona and two other states to adopt the OSHA emergency rules and praised the federal agency of moving to strip enforcement authority. 

“It’s unconscionable that some states think they can just ignore their responsibility to protect health care workers,” she said, naming not just Arizona but also South Carolina and Utah. “We could not be more proud that OSHA is standing up to hold them accountable today. 

 

4 comments

  1. A federal OSHA takeover of jurisdiction in Arizona would be one of the worst things to happen to occupational safety and health in Arizona in a long, long time. This is nothing more than OSHA trying to once again flex a little muscle and expand its tentacles into other areas. In OSHA’s view, this isn’t so much about making sure Arizona is “at least as effective” as federal OSHA; it’s more about the opportunity to have yet another reason for them to go to Congress and ask for more budget money. It’s always about the money.

  2. Michael J. Vanard

    It appears that the Federal Govt. actions are another jab at the State of Arizona.
    The Federal Govt selectively chooses which laws they wish to enforce and who they choose to enforce them against. [The out of control border is an example of selective enforcement.]
    Now they are not getting their way on Covid issue in Arizona so they choose to come at us from another direction through the use of OSHA.
    Our business community will be impacted the greatest as OSHA will not have the man power to conduct on- site evaluations of business and of consequence business may be disallowed from operating until the inspection takes place.
    Just simply another matter for the Courts…. once again, a complete waste of taxpayer dollars.

  3. OSHA is not elected officials. They should have not power to strip the state of power to monitor health here as we are free citizens!!!

  4. ARIZONA MUST NOT COMPLY WITH OR ADOPT THE VACCINATION EMERGENCY TEMPORARY STANDARD

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