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OSHA to states: Protect workers from COVID or forfeit authority

Alex Brown, on

Published in News & Features

In a rare move, federal labor officials have threatened to take over three states’ workplace safety programs because they failed to adopt emergency COVID-19 rules to protect health care workers.

That admonition, labor advocates say, also serves as a thinly veiled warning that resisting the forthcoming federal vaccine mandate for most health care workers and employees at large companies likewise could cost states their regulatory power over workplace safety.

“This is definitely an effort to send a message that [the Occupational Safety and Health Administration] is going to take any defiance of the next standard very seriously,” said Jordan Barab, who served as OSHA’s deputy assistant secretary of labor during the Obama administration and now writes a blog about workplace safety issues.

Earlier this month, OSHA sent the White House a proposed rule that would require companies with 100 or more employees to mandate vaccination or regular testing. President Joe Biden has called for an expedited rule-making process, and some labor experts think the agency could publish the new rule any day. The mandate would take effect immediately.

OSHA’s crackdown on Arizona, South Carolina and Utah is based on the agency’s June emergency standard for health care workers that included requirements for physical distancing, cleaning, physical barriers, personal protective equipment, ventilation and other protections. Most states fell under that emergency rule automatically, but 21 states maintain their own workplace safety agencies for private sector employers. Those states must meet or exceed OSHA standards.

The feds say Arizona, South Carolina and Utah have failed the “at least as effective” test by refusing to match their standards to the new federal rule.


“OSHA has worked in good faith to help these three state plans come into compliance,” said Jim Frederick, the agency’s acting director, on a conference call with reporters. “But their continued refusal is a failure to maintain their state plan commitment to thousands of workers in their state.”

The agency had required states to comply with the June standard within 30 days. While some have taken longer, OSHA ultimately singled out the trio based on their active resistance rather than bureaucratic hang-ups.

Trevor Laky, legislative affairs chief with the Industrial Commission of Arizona, the state agency that oversees health and safety laws, said Arizona has made efforts to comply, but that officials are committed to putting the new standards through a full rulemaking process with public comment. That procedure takes much longer than the emergency rule action taken by OSHA.

“Our opinion that good public policy requires good public input is pretty steadfast,” Laky said. He did not say whether the agency will change course in response to the threat from OSHA to revoke its power.


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