Biden Gets Tough With States That Haven’t Adopted COVID-19 Safety Rules

Officials with the Occupational Safety and Health Administration are threatening to assert jurisdiction over workplace safety in three states that haven’t adopted President Joe Biden’s emergency regulation for health care facilities.

South Carolina, Arizona and Utah all have what are known as OSHA state plans. Federal OSHA oversees workplace safety around the country, but states are allowed to handle it on their own as long as they meet minimum federal requirements.

OSHA officials said Tuesday that those three states had missed the deadline to implement the Biden administration’s new rule meant to protect health care workers from COVID-19. If they don’t implement such a rule, the administration will move to revoke approval of their state OSHA plans — which would subject employers in South Carolina, Arizona and Utah to federally run inspections.

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

Trevor Laky, a spokesperson for the Industrial Commission of Arizona, which includes the state’s OSHA office, said state officials were “surprised” to receive the letter threatening to revoke approval of the state plan. He said Arizona was developing a rule and opening it up to public comment.

“We’ve been working in good faith with them,” Laky said.

Messages left at the OSHA offices in South Carolina and Utah were not immediately returned.

The friction between OSHA and these three states could serve as a preview of battles over the Biden administration’s upcoming vaccine rule. Under that regulation, large employers will be required to see that their workers are vaccinated against COVID-19 or be subjected to regular testing.

Some Republican politicians have vowed to ignore the regulation, but they could wind up in the same boat as South Carolina, Arizona and Utah: facing the possibility of losing their state plan’s approval. State plans are often laxer on enforcement than federal OSHA, and many employers prefer it that way.

“Their continued refusal is a failure to maintain their state plan commitment to thousands of workers in their states.”
- Jim Frederick, acting head of OSHA

Debbie Berkowitz, a safety expert and former OSHA official under President Barack Obama, praised the Biden administration for issuing the warning.

“This is a very important message,” she said. “I think states need to think long and hard about what they’re doing here.”

She predicted that employers in the three states would not like the thought of a federal OSHA takeover.

“The bottom line is private-sector employers in state plans do not want federal OSHA coming in,” she said. “In almost every state where they have a state plan, although they have the same regulations, enforcement is so much weaker.”

OSHA officials said they would be putting notices in the federal register of their intention to reconsider approval of the three state plans. If OSHA and the states can’t find a resolution, federal officials and inspectors could end up taking over part or all of the enforcement in those states, or carrying out enforcement alongside the states.

Under federal law, state OSHA plans must be at least as effective in protecting workers as federal OSHA. Twenty-two states have their own OSHA plans covering both private- and public-sector workers. The effectiveness of each agency varies from state to state.

The OSHA health care rule for COVID-19, which the Biden administration issued in June, applies to hospitals, nursing homes and other health care settings. It requires employers to assess hazards, provide personal protective equipment and enforce social distancing, among other provisions. The deadline OSHA set for state plans to adopt the rule was July 21.

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