OSHA Likely to Reaffirm Significance of Federal Safety Minimums

OSHA appears ready to assert its right to take over safety standards from state OSHA plans when those state plans do not meet minimum federal requirements.

Earlier this year, OSHA made public its intention to “reconsider” the State Plan status of the Arizona Division of Occupational Safety and Health (ADOSH) to oversee the construction industry, citing discrepancies in fall protection requirements. Specifically at odds is the requirement of conventional fall protection for workers in residential construction at heights of between 6 and 15 feet. Four years ago, federal OSHA passed rules mandating the use of certain protections at heights of six feet or more. In 2012, ADOSH changed the Arizona requirement for those protections to fifteen feet and above.

OSHA insists that the ADOSH standard is not as effective as the federal requirement, and may endanger workers. In a letter, OSHA cited Bureau of Labor Statistics data showing that 25 percent of fatal on-the-job falls occur at heights of between 6 and 15 feet. The letter also insisted that under ADOSH, “Arizona’s fall protection standard under the revised Statute requires very limited, if any, fall protection for employees working between 6 and 15 feet.”  Further, OSHA stated it believes that the new ADOSH standard “would still allow Arizona workers to be exposed to falls up to fifteen feet, and therefore [. . .] would not make Arizona’s standard at least as effective as federal OSHA’s standard.”

The crucial point here is that OSHA is reaffirming that state OSHA plans must at least meet federal OSHA minimum safety requirements. Indeed, most states choose to create a state OSHA plan in the first place due to a feeling that federal requirements do not go far enough. It is unusual for a state OSHA plan to seek a safety requirement that is less stringent than the federal minimum.

For its part, ADOSH has publicly disagreed with the characterization of its requirements as “less than” the federal standard. ADOSH acknowledges that its proposed protections are different from the federal requirements, but says it does not believe that they fail to protect workers to the same degree.

Andy Biggs, president of the Arizona State Senate, called the proposed ADOSH standards “among the most stringent fall protection programs in the nation.” And citing the fact that ADOSH does mandate fall protections at 6 feet—just not the personal fall arrest systems required by federal OSHA—Mr. Biggs went on to suggest that Arizona’s state standards might even be more effective than OSHA’s.

If OSHA moves to adjust the State Plan status of ADOSH in 2015—as some now expect it will—it will reaffirm federal OSHA’s intention to mandate that states adhere to its minimum safety requirements.

Safety managers sometimes feel the workings of federal OSHA don’t concern them because they operate under a state plan. Whatever the eventual outcome, this case should serve as a powerful reminder that it behooves everyone to take federal OSHA’s guidelines and requirements seriously.

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