OSHA takeover update: Comment period extended by 60 days, public hearing postponed

On April 20, citing what it termed the State of Arizona's "decade-long pattern of failures" in enforcing private workplace safety, the federal Occupational Safety and Health Administration (OSHA) announced its intention to revoke the Arizona State Plan, under which the Arizona Division of Occupational Safety and Health (ADOSH) – in place of OSHA – conducts workplace safety inspections and enforcement.

Arizona is one of 28 states and territories that operate their own OSHA-approved state plans.

The threatened takeover announcement is the latest development in an ongoing OSHA-ADOSH dispute that became public last fall, when OSHA threatened to revoke ADOSH’s authority (which dates back to 1985) to regulate worker safety in Arizona. (See Andrew Wenker’s November 8, 2021, Construction Advisor® article, “OSHA ‘Power Grab’ Poses a New Regulatory Threat to Arizona Employers.”)

In announcing its proposed plan, OSHA stated that, if it revokes Arizona’s authority to regulate worker safety in the state, “Federal authority for discretionary concurrent enforcement would resume, allowing Federal OSHA to ensure that private sector employees in Arizona are receiving protections that are at least as effective as those afforded to employees covered by Federal OSHA.”

There is no deadline for OSHA to announce its decision.

UPDATE: After receiving nearly 200 public comments on its plan to revoke the State of Arizona's workplace safety enforcement authority, OSHA announced on August 10 that it was reopening the comment period for an additional 60 days. The agency also postponed the public hearing that had been tentatively set for August 16.

OSHA Preparation. Because no state that operates under a State Plan has involuntarily had its plan revoked, we cannot say for sure what life under OSHA would look like for contractors. However, it may be safe to assume that, because Arizona apparently has not lived up to federal safety standards, contractors might experience more frequent inspections, higher compliance standards, and/or tougher financial penalties (for the federal government, far more than most states, OSHA penalties are a revenue stream).

For employers in any high-risk industry, preparation will be crucial, as OSHA inspections occur unannounced. When the inspector arrives, it will be far too late to figure out what to do next.

You should have a written procedure for responding to an OSHA inspection, and you should provide periodic training for all managers and supervisors. To use a football analogy:

• Prepare a written playbook.
• Practice your plays.
• Know what play to call.
• Be ready to call an audible.

Resources. A 2008 (but still useful) EHS Today article, “When OSHA Knocks,” provides a detailed analysis of the inspection and complaint-and-response process, and you will find that article to be a valuable resource.

It goes in-depth on recommended preparations and strategies on:

• an inspector’s arrival on your jobsite
• the opening conference
• accompanying the inspector on the walk-around
• the closing conference
• how to respond to a complaint and citations
• understanding the options and courses of action available to you.

Also, a number of OSHA compliance firms offer online assessment tools, such as Insure Compliance's Safety Gap Self-Assessment.

Start the Process. While OSHA’s revocation of the Arizona State Plan is not a done deal, contractors and other employers would be wise to assume that it is.

Just as you should fully prepare for life with OSHA, we are doing the same. We are reviewing our lists of safety consultants, expert witnesses, and other professionals who have done battle with OSHA, administratively and in the courts, and can help you prepare for and protect your company against an OSHA inspection and challenge the citations that will invariably result.

We are ready to help your business tackle any OSHA issues it might encounter. In the meantime, please visit our Government Regulation web page.