Safe Solutions

Federal vs. state plans

As you know, the Occupational Safety and Health Administration (OSHA) primarily is responsible for enforcing occupational safety and health laws. However, a state is entitled to develop and enforce its own laws regarding worker safety and health if its rules are at least as effective as the federal requirements. OSHA must approve state plans, which currently are in effect in 27 states and territories.

A state's failure to maintain compliance with federal requirements for its occupational safety and health plan can cause the state to lose authority to administer its own plan. A 2010 review by OSHA of all state plans has revealed some issues that may cause further agency intervention with some state plans.

State plan reviews

Problems associated with the Nevada OSHA state plan were the subject of a special review by OSHA in 2009 that reported failures to cite willful violations because of a lack of management and legal support; instances of clear repeat violations that were not cited; hazards that were not cited or even mentioned to employers; lack of construction hazard training for Nevada OSHA inspectors; and failures by the Nevada agency to ensure employers abated hazards identified during inspections.

Nevada OSHA has commited to rectifying these deficiencies as evidenced by new management heading the agency (including a new chief administrative officer) that has pledged to restore public confidence in the office.

In its 2010 review of all state plans, OSHA inventoried deficiencies in each state plan ranging from minor administrative issues to errors or omissions with substantial implications.

For example, OSHA reported staffing and funding cutbacks led to "significant performance problems" in the Hawaii program. OSHA noted misclassified violations, missing documentation from case files, long lapses between inspections and issuance of citations, and inadequate state responses to imminent danger cases.

California OSHA's (CalOSHA's) state plan was admonished for, among other reasons, a lack of timely adoption of federal program changes, a low rate of serious citations compared with total citations and a new bakery oven standard that OSHA criticized as not "at least as effective as" the federal rules.

CalOSHA's response to the federal review acknowledged areas of deficiency in its services common to all state plans and to federal OSHA's administration, as well. But CalOSHA also pointed out unique program components it has instituted that federal OSHA requirements do not address.

CalOSHA complained its accomplishments exceeding OSHA's standards were not incorporated into the evaluation process. In light of current economic conditions, CalOSHA stated it had hoped OSHA would provide greater insight into improving CalOSHA's effectiveness or prioritizing its activities.

CalOSHA also raised a defense to OSHA's charge that its standards are not "at least as effective as" the federal standards—a defense universally applicable to other state plan programs. The Occupational Safety and Health (OSH) Act, according to CalOSHA, requires state plans to be "at least as effective as"—not "the same as"—federal standards.

In fact, state plan standards under the precise language of the OSH Act must be at least as effective in providing safe and healthful employment and places of employment as the federal standards—clearly a performance-based requirement.

Existing conflicts

OSHA's 2010 state plan review process indicates that even among state agencies charged with developing and enforcing workplace health and safety rules, divergent approaches and conflicts may exist for how best to achieve those goals. If the review is any indication, OSHA is not taking a hands-off approach to managing state plans.

Harry Dietz is NRCA's director of risk management.



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