OSHA Says: Protect Workers From COVID Or Dismissal

On rare occasions, federal labor officials have threatened to take over workplace safety programs in three states because they did not enact COVID-19 emergency regulations to protect healthcare workers.

The caveat, according to labor advocates, also serves as a thinly veiled warning that resistance to a forthcoming federal vaccine requirement for most healthcare workers and large company employees could also cost states their regulatory powers over workplace safety.

“This is definitely an attempt to send a message that [the Occupational Safety and Health Administration] is going to take any violation of the next standard very seriously, ”said Jordan Barab, who served as OSHA’s Deputy Assistant Secretary of Labor under the Obama administration and now blogs about workplace safety.

Earlier this month, OSHA sent a proposed rule to the White House that companies with 100 or more employees must require vaccinations or regular testing. President Joe Biden has called for speeding up the rule-making process, and some labor experts believe the agency could issue a new rule any day. The mandate will take effect immediately.

OSHA’s crackdowns in Arizona, South Carolina and Utah are based on the agency’s June standard for healthcare professionals, which includes requirements for physical distancing, cleaning, physical barriers, personal protective equipment, ventilation, and other protective measures. Most states automatically fall under this emergency rule, but 21 states have their own OSH agencies for private sector employers. These states must meet or exceed OSHA standards.

Federal authorities say Arizona, South Carolina and Utah have failed “at least as effective” the test, refusing to bring their standards in line with the new federal rule.

“OSHA has worked in good faith to help these three state plans align,” said Jim Frederick, acting director of the agency, during a conference call with reporters. “But their constant refusal is a failure to fulfill their obligations under the state plan to the thousands of workers in their state.”

The agency required states to comply with the June standard for 30 days. Although it took some more time, OSHA ultimately singled out the trio based on their active opposition, not bureaucratic delays.

Trevor Luckey, head of legislative affairs for the Arizona Industry Commission, the state agency that oversees health and safety laws, said Arizona has made efforts to comply, but that officials are committed to implementing the new standards through a complete rulemaking process with public comment. This procedure takes much longer than the OSHA emergency regulations.

“Our view that good public policy requires good public opinion is fairly unwavering,” Lucky said. He did not say if the agency would change course in response to OSHA’s threat to withdraw its mandate.

But union defenders say the public opinion argument is simply a delaying tactic.

“They are delaying to avoid compliance,” said Rebecca Reindel, director of occupational safety and health at AFL-CIO, the national federation of trade unions. “Arizona here pretends not to understand anything, but they know what their obligations are. The whole point is to immediately establish this protection for people. “

Workers’ advocates in Arizona say state officials have not responded to safety concerns throughout the pandemic, simply ignoring some of the complaints. Workers would like the government agency to take on a stronger role, said Shefali Milcharek-Desai, an assistant professor of law at the University of Arizona who runs the school’s workers’ rights clinic, which provides free legal aid to low-paid workers. Otherwise, labor advocates say a takeover by OSHA may be the best option for workers.

“It’s hard to predict without seeing what the federal agency is capable of, but for now, everything will be better than what the Industrial Commission is doing, which is practically nothing,” Milcharek-Desai said.

Earlier this month, the union and professional organization National Nurses United filed a complaint with federal OSHA, which accused Arizona of neglecting its responsibility to comply with national standards.

“There are really serious health and safety issues in Arizona that would not exist if [OSHA] standards are being followed, ”said Jane Thomason, Group Lead Industrial Hygiene Specialist. “The Industry Commission has made it very clear that they no longer think this is an emergency and they have very little interest in acting quickly.”

According to former OSHA employee Barab, OSHA has never taken away the government’s right to regulate its workplaces.

“It’s pretty rare,” Barab said. “States should really openly ignore OSHA’s clear requirements for action.”

In 2014, OSHA threatened to take control of Arizona’s construction industry after the state failed to comply with fall protection regulations for workers on stairs, rooftops and scaffolding. Ultimately, the state moved to the federal standard.

“They resisted until the last moment and then gave way,” Barab said.

Hawaii voluntarily relinquished its regulatory powers in 2012 due to budgetary and staffing concerns, but regained control in 2017 as part of a new agreement with OSHA.

Earlier this month, Utah State Commissioner for Labor, Jason Mogan, told state lawmakers that his agency plans to suspend coronavirus rules until the federal health rule expires in December. He said the risk of reprisals from OSHA is low given the lengthy process leading up to threats issued in the past.

“It is doubtful that OSHA has begun the process of invalidating the government plan,” he said at a meeting of the legislative committee. “I think there will be a few letters, a few requests, a demand for this to be accepted, and then a few more discussions.”

The battle for safety standards could anticipate a similar battle for federal vaccine requirements.

Twenty-four state attorneys general, all Republicans, have pledged to wage legal action against the vaccine that Biden instructed OSHA to develop. Eight of these are from states that retain OSH powers: Alaska, Arizona, Indiana, Kentucky, South Carolina, Tennessee, Utah, and Wyoming.

Barab said he wouldn’t be surprised if half a dozen states openly oppose the vaccine rule, delaying or refusing to adopt the federal standard.

Such a rebuff will lead to a serious clash between these states and federal regulators. OSHA provided Stateline with background information about its announcement, but did not respond to a question about the vaccine mandate.

In South Carolina, Republican Gov. Henry McMaster called the OSHA threat a “preemptive strike” designed to reaffirm federal government ahead of schedule for vaccinations. He promised to start legal action to challenge the takeover.

But regulators in other Republican states are less eager to fight the feds. In Tennessee, state legislators this week ordered the Tennessee Occupational Safety and Health Administration to violate OSHA guidelines for healthcare workers. But state regulators have rejected the demand, according to Nashville-based public radio station WPLN.

“It is becoming increasingly important that TN-OSHA remains in full force as a state plan without additional federal oversight, federal interpretation, and federal enforcement of occupational safety and health standards in Tennessee,” Labor Commissioner Jeff McCord said in a letter to state legislators.

Labor experts say they know little if some states are willing to sacrifice their regulatory autonomy to take an ideological stance on vaccines. But it is likely that the business community will have doubts about such a move.

In many states with workplace safety powers, business leaders prefer this status to federal law.

“Businesses think they have much more power to influence enforcement decisions by lobbying at the state level than if they were lobbying at the federal level,” Barab said. “In cases where we threatened this status, the state showed disobedience until the business community swooped in and said: ‘In no case, we do not want the federals to enforce the law.’

Garrick Taylor, executive vice president of the Arizona Chamber of Commerce and Industry, said business leaders in the state do not want the federal government to have power.

“The principle has long been established that the priority and oversight of the state is preferable to federal management of these issues,” he said. “The Arizona Industry Commission and its Occupational Safety and Health Division in Arizona have been responsive to the needs of job creators, effectively fulfilling their mission.”

While Taylor expressed concern about federal interference, he did not call on government officials to abide by the new standard. Instead, he called the dispute a matter of the feds trying to “muscle” the states, and pointed to the promise of Republican Gov. Doug Ducy that “we won’t let this happen without a fight.”

Milcharek-Desai, a worker safety advocate, said the chamber’s position was wrong.

“The reason they want the state to be responsible for this is because they practically don’t want enforcement, but that’s bad for business,” she said. “But when people come to work sick, it costs business more and it leads to an increase in the number of sick people. Reasonable employers understand this. ”

Labor advocates have applauded the agency for its tough action against states that have resisted COVID-19 safety regulations. But they cautioned that OSHA must also ensure that states that have adopted these rules are enforcing them.

“If you have states that accept a paper tiger and don’t enforce the standard, that’s also problematic,” said Reindel, an advocate for the AFL-CIO. “If they don’t follow the rules, why should workers in one state have less protection than workers in a neighboring state?”