OSHA State Plans: In Brief, with Examples from California and Arizona
Congressional research reportApr 18, 2017
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OSHA State Plans: In Brief, with Examples
from California and Arizona
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Analyst in Disability Policy
April 18, 2017
Congressional Research Service
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www.crs.gov
R43969
OSHA State Plans: In Brief, with Examples from California and Arizona
Summary
The Occupational Safety and Health Act of 1970 (OSH Act) authorizes states to establish their
own occupational safety and health plans and preempt standards established and enforced by the
Occupational Safety and Health Administration (OSHA). OSHA must approve state plans if they
are “at least as effective” as OSHA’s standards and enforcement. Currently, 21 states and Puerto
Rico have state plans that cover all employers and 5 states and the U.S. Virgin Islands have state
plans that cover only state and local government employers, who are not covered by the OSH Act.
OSHA estimates that 40% of all American workers are covered by state occupational safety and
health plans.
California’s state plan includes specific standards designed to protect workers against heat illness
despite OSHA not having a federal heat illness standard, exemplifying a state plan that goes
beyond OSHA’s standards. In contrast, legislation enacted in Arizona created a residential
construction fall protection standard that OSHA determined is not as effective as the federal
standard and that has been formally rejected by OSHA.
Congressional Research Service
OSHA State Plans: In Brief, with Examples from California and Arizona
Contents
State Occupational Safety and Health Plans ................................................................................... 1
State Plan Requirements ........................................................................................................... 2
State Plan Approval Process...................................................................................................... 3
Monitoring of State Plans.......................................................................................................... 4
State Plan Funding .................................................................................................................... 4
Examples of State Occupational Safety and Health Plans .............................................................. 5
California .................................................................................................................................. 5
OSHA and Heat Illness ....................................................................................................... 5
Cal/OSHA’s Heat Illness Prevention Standard ................................................................... 6
Arizona ...................................................................................................................................... 7
OSHA’s Residential Construction Fall Protection Standard ............................................... 7
Arizona’s Residential Construction Fall Protection Legislation ......................................... 7
OSHA’s Response to Arizona’s Legislation ........................................................................ 8
Arizona’s Amended Standard ............................................................................................. 8
OSHA’s Rejection of the Arizona Standard ........................................................................ 8
Figures
Figure 1. OSHA-Approved State Plans ........................................................................................... 1
Figure 2. OSHA Heat Illness Poster Developed by Cal/OSHA ...................................................... 6
Tables
Table 1. OSHA-Approved State Occupational Safety and Health Plans......................................... 2
Contacts
Author Contact Information ............................................................................................................ 8
Congressional Research Service
OSHA State Plans: In Brief, with Examples from California and Arizona
State Occupational Safety and Health Plans
Under the provisions of the Occupational Safety and Health Act of 1970 (OSH Act),1 the federal
government, through the Occupational Safety and Health Administration (OSHA), has the
primary responsibility for establishing and enforcing workplace safety standards.2 However,
Section 18 of the OSH Act permits any state or territory to preempt federal jurisdiction over
occupational safety and health by establishing an approved state occupational safety and health
plan.3
Figure 1. OSHA-Approved State Plans
Source: Congressional Research Service (CRS) map created with data from the Occupational Safety and Health
Administration (OSHA) website at https://www.osha.gov/dcsp/osp/index.html.
1
29 U.S.C. §§651 et seq. For additional information on the Occupational Safety and Health Act of 1970 (OSH Act),
see CRS Report R43768, The OSH Act: A Legal Overview.
2
Under Section 4(b)(1) of the OSH Act, the Occupational Safety and Health Administration (OSHA) does not have
jurisdiction over areas in which another federal agency has exercised its authority to establish and enforce workplace
health and safety standards.
3
29 U.S.C. §667.
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OSHA State Plans: In Brief, with Examples from California and Arizona
Figure 1 and Table 1 highlight that 21 states and Puerto Rico currently have state plans that
cover private- and public-sector employers and 5 states and the U.S. Virgin Islands have plans
that cover only state and local government employers, who are not covered by OSHA. In
addition, Maine is currently in the process of establishing a state plan for state and local
government employers, and New Jersey, which has a state plan for public-sector workers only, is
in the process of extending its state plan to cover all employers. OSHA estimates that 40% of all
American workers are covered by a state occupational safety and health plan.4
Table 1. OSHA-Approved State Occupational Safety and Health Plans
Covers Private- and Public-Sector Workers
Covers Only Public-Sector Workers
Alaska
New Mexico
Connecticut
Arizona
North Carolina
Illinois
California
Oregon
Maine
Hawaii
Puerto Rico
New Jersey
Indiana
South Carolina
New York
Iowa
Tennessee
U.S. Virgin Islands
Kentucky
Utah
Maryland
Vermont
Michigan
Virginia
Minnesota
Washington
Nevada
Wyoming
Source: Occupational Safety and Health Administration (OSHA) website at https://www.osha.gov/dcsp/osp/
index.html.
State Plan Requirements
In general, for a state occupational safety and health plan to be approved, it must be “at least as
effective” as the standards established and enforced by OSHA at providing for workplace safety.
Specifically, Section 18(c) of the OSH Act requires OSHA to approve a state plan if the plan
designates a state agency or agencies that are responsible for administering the
plan throughout the state;
provides for the development and enforcement of safety and health standards
relating to one or more safety or health issues, which standards (and the
enforcement of such standards) are or will be at least as effective in providing
safe and healthful employment and places of employment as the standards
promulgated under Section 6 [of the OSH Act] relating to the same issues, and
which standards, when applicable to products that are distributed or used in
interstate commerce, are required by compelling local conditions and do not
unduly burden interstate commerce;
4
U.S. Department of Labor (DOL), FY 2016 Congressional Budget Justification: Occupational Safety and Health
Administration, February 2015, p. 59, http://www.dol.gov/dol/budget/2016/PDF/CBJ-2016-V2-12.pdf.
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OSHA State Plans: In Brief, with Examples from California and Arizona
provides for a right of entry and inspection of all workplaces subject to the act
that is at least as effective as that provided in Section 8 [of the OSH Act], and
includes a prohibition on advance notice of inspections;
contains satisfactory assurances that such agency or agencies have or will have
the legal authority and qualified personnel necessary for the enforcement of such
standards;
gives satisfactory assurances that such state will devote adequate funds to the
administration and enforcement of such standards;
contains satisfactory assurances that such state will, to the extent permitted by its
law, establish and maintain an effective and comprehensive occupational safety
and health program applicable to all employees of public agencies of the state
and its political subdivisions, which program is as effective as the standards
contained in an approved plan;
requires employers in the state to make reports to the Secretary [of Labor] in the
same manner and to the same extent as if the plan were not in effect; and
provides that the state agency will make such reports to the Secretary in such
form and containing such information, as the Secretary shall from time to time
require.5
State Plan Approval Process
Any state or territory may submit a state plan to OSHA for approval. The first step in the approval
process is for a state to submit a Developmental Plan to OSHA. Required elements of a
developmental plan include
state legislation,
regulations and procedures for establishing occupational safety and health
standards,
enforcement systems,
appeals processes, and
sufficient staffing to implement the state plan.
In addition, a developmental plan must demonstrate that within three years the state will have the
necessary infrastructure to be effective.
5
The state plan is eligible for Certification once a state has submitted a
developmental plan. OSHA provides certification once a state demonstrates that
it has the necessary infrastructure in place as outlined in its developmental plan.
The OSHA Certification process does not render any judgment on the
effectiveness of the state plan and does not result in the preemption of federal
jurisdiction.
When OSHA determines that a state is capable of meeting the statutory state plan
requirements, including the requirement that the plan is “at least as effective” as
the federal system, OSHA and the state may enter into an Operational Status
29 U.S.C. §667(c).
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OSHA State Plans: In Brief, with Examples from California and Arizona
Agreement that outlines which employers will be under state jurisdiction and
which will remain under federal jurisdiction.
A state plan may receive Final Approval at least one year after certification. Final
approval is the formal decision of OSHA that the plan is meeting its statutory
requirements and that the plan is as least as effective as the federal system. After
final approval is granted, all employers, except those under federal jurisdiction as
a matter of law, are under state, rather than federal, jurisdiction.6
A state dissatisfied with OSHA’s decision not to grant approval to its state plan
may request a hearing before an administrative law judge of the Occupational
Safety and Health Review Commission (OSHRC).
A plan may operate indefinitely under an operational status agreement without
ever receiving final approval from OSHA, which may be modified upon
agreement between the state and OSHA. For example, the largest state plan,
administered by the California Division of Occupational Safety and Health
(Cal/OSHA), received certification in 1977 and has been operating under an
operational status agreement since that time without having received final
approval from OSHA. Currently, seven states and territories are operating state
plans under operational status agreements rather than final approvals.7
Monitoring of State Plans
OSHA monitors approved state plans to ensure that they remain at least as effective as the federal
system in providing for occupational safety and health through the Federal Annual Monitoring
Evaluation (FAME) process. Monitoring state plans includes (1) reviewing state laws and
standards to ensure effectiveness; (2) reviewing the operation and administration of state plans;
and (3) assessing state progress toward meeting performance goals. Each year, OSHA issues a
FAME report for each state plan.8 If OSHA finds deficiencies in a state’s plan, it can require
changes to the plan and ultimately reconsider its decision to approve the state plan such that
OSHA reasserts partial or full jurisdiction over occupational safety and health in the state.
State Plan Funding
Section 23(g) of the OSH Act authorizes the Department of Labor (DOL) to make matching
grants to states to cover up to 50% of the cost of the administration of approved state
occupational safety and health plans.9 A state may overmatch the federal grant amount with state
funds. The total amount available for state plan grants comes from the discretionary appropriation
to the DOL for OSHA. The FY2016 appropriation for OSHA state plan grants was $100.850
million and DOL requested $104.377 million for state plan grants for FY2017.10
6
For example, under Section 19 of the OSH Act [29 U.S.C. §668], the occupational safety and health programs
required to be maintained by federal agencies remain under the jurisdiction of OSHA.
7
State plans in California, Hawaii, Michigan, New Mexico, Puerto Rico, Vermont, and Washington are currently
operating under Operational Status Agreements rather than Final Approvals.
8
Federal Annual Monitoring Evaluation (FAME) reports are available on the OSHA website at https://www.osha.gov/
dcsp/osp/efame/index.html.
9
29 U.S.C. §672(g).
10
DOL, FY 2017 Congressional Budget Justification: Occupational Safety and Health Administration, February 2017,
p. 63, https://www.dol.gov/sites/default/files/documents/general/budget/CBJ-2017-V2-12.pdf.
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OSHA State Plans: In Brief, with Examples from California and Arizona
Examples of State Occupational Safety and
Health Plans
Detailed information on each of the approved state occupational safety and health plans is
available on the OSHA website.11 This section will focus on two state plans that are involved with
current controversial occupational safety and health issues. The California state plan exceeds
OSHA’s standards and includes specific requirements that employers must fulfill when their
employees are working outdoors during periods of high temperatures. The Arizona state plan
includes a residential construction fall protection standard that has recently been deemed
insufficient by OSHA and may result in OSHA reconsidering its approval of the state plan.
California
The California state occupational safety and health plan is administered by Cal/OSHA. The
California plan is unique in that it includes a specific occupational safety and health standard that
applies in cases of employees working outdoors during periods of high temperatures with the goal
of reducing heat-related illnesses. Unlike the California state plan, OSHA does not have a specific
standard addressing the hazards of working outdoors in high temperatures. Thus, the California
state plan exemplifies going beyond the statutory requirement of providing a state plan that is at
least as effective as the federal system and implementing standards to address hazards not
specifically covered by OSHA.
OSHA and Heat Illness
There is no federal occupational safety and health standard that specifically addresses the hazards
of working outdoors in high temperatures. Rather, OSHA relies on the following existing section
of the OSH Act and federal standards to attempt to reduce heat-related illnesses and injuries:
Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty
Clause, requires that each employer “shall furnish to each of his employees
employment and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical harm to his
employees”;12
the personal protective equipment (PPE) standards require each employer to
assess potential hazards to employees and provide employees with appropriate
PPE to protect against these hazards;13
the sanitation standards require employers to provide employees with access to
potable water;14 and
the safety training and education standard for construction requires construction
employers to “instruct each employee in the recognition and avoidance of unsafe
conditions” in the workplace.15
11
For detailed information on approved state plans, see https://www.osha.gov/dcsp/osp/approved_state_plans.html.
29 U.S.C. §654(a)(1).
13
29 C.F.R. §§1910.132, 1915.152, 1917.95, and 1926.28.
14
29 C.F.R. §§1910.141, 1915.88, 1917.127, 1918.95, 1926.51, and 1928.110.
15
29 C.F.R. §1926.21.
12
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OSHA State Plans: In Brief, with Examples from California and Arizona
In addition, OSHA has developed a
smartphone application that allows employers
and workers to determine the current heat
index and risk level for heat illness and
provides recommended protection measures
based on the current risk level. OSHA has
also launched a heat illness prevention safety
campaign that includes the use of materials,
such as the poster shown in Figure 2,
developed by Cal/OSHA as part of
California’s state occupational safety and
health plan.
Figure 2. OSHA Heat Illness Poster
Developed by Cal/OSHA
Cal/OSHA’s Heat Illness Prevention
Standard
In 2005, Cal/OSHA established a heat illness
prevention standard as part of California’s
state occupational safety and health plan and
updated this standard in 2015.16 The
Cal/OSHA standard requires all employers
with outdoor places of employment to
provide training in the risks and
prevention of heat illness to all
Source: OSHA website at https://www.osha.gov/
employees and supervisors before
SLTC/heatillness/edresources.html.
engaging in work that may expose
employees to high temperatures; and
in temperatures of at least 80 degrees Fahrenheit, provide access to shade or other
cooling systems, such as misters, and permit employees to take breaks of at least
five minutes whenever they feel it necessary to protect against heat illness.
The Cal/OSHA standard has additional rules regarding periods of high heat (at least 95 degrees
Fahrenheit) that apply to the following industries:
agriculture,
construction,
landscaping,
oil and gas extraction, and
transportation of agricultural production, construction materials, or other heavy
items unless the employee is in an air-conditioned vehicle and is not involved in
the loading or unloading of the vehicle.
At temperatures of at least 95 degrees Fahrenheit, covered employers must maintain
communication with all employees; observe employees for signs of heat illness, especially new
employees not yet acclimated to high heat conditions; and remind employees to drink water. In
16
The Cal/OSHA heath illness prevention standard is codified at Cal. Code Regs., Tit. 8, §3395 and is available at
https://www.dir.ca.gov/Title8/3395.html.
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OSHA State Plans: In Brief, with Examples from California and Arizona
addition, agricultural employers must provide workers with at least a 10-minute rest period every
two hours when temperatures reach 95 degrees.
Arizona
The Arizona state occupational safety and health plan received final approval from OSHA in 1985
and is administered by the Arizona Occupational Safety and Health Division (ADOSH) of the
Industrial Commission of Arizona (ICA). In February 2015, OSHA announced that it was
rejecting the residential construction fall protection standard in the Arizona state plan, which
prompted Arizona, in accordance with state law, to adopt the OSHA standard.
OSHA’s Residential Construction Fall Protection Standard
OSHA’s residential construction fall protection standard requires that each employee who works
in residential construction activities at a height of at least 6 feet above the ground or the next
lower level be protected from falls by a guardrail, safety net, or personal fall arrest system
(known as conventional fall protection).17 This standard was initially issued on August 1994, but
concerns over its feasibility led OSHA to issue interim compliance procedures in December 1995
that permitted employers to use nonconventional fall protection systems, such as slide guards,
rather than the safety systems required by the standard.18 On December 16, 2010, OSHA
cancelled its interim guidance and announced that the residential construction fall protection
standard would go into effect in June 2011.19 This effective date was later postponed by OSHA to
September 22, 2011.20
Arizona’s Residential Construction Fall Protection Legislation
On June 16, 2011, ADOSH adopted the federal residential fall protection standard. However, the
next day the ICA stayed enforcement of the standard. The stay was lifted on November 20, 2011,
effective January 1, 2012. On March 27, 2012, SB 1441 was enacted into law in Arizona.21 The
legislation requires conventional fall protection only when an employee is working at a height of
at least 15 feet or when the slope of the roof is steeper than 7:12 (measured as the ratio of rise to
run). The legislation also created an exception in cases in which conventional fall protection is
not feasible or creates a greater hazard.22 ADOSH adopted the provisions of SB 1441 as a
standard as part of its state occupational safety and health plan.23
17
29 C.F.R. §1926.501(b)(13).
OSHA Instruction STD 3.1. On June 18, 1999, OSHA issued Directive # STD 3-00-001, a plain language revision of
Instruction STD 3.1.
19
OSHA Directive # STD 03-11-002.
20
This postponement was announced in OSHA’s letter of June 8, 2011, to the National Association of Home Builders.
This letter is available at https://www.osha.gov/doc/letter_nahb.html.
21
This legislation was codified at A.R.S. 23-492.
22
One argument against the use of conventional fall protection systems in residential construction is that the wood
commonly used in residential construction does not provide a safe anchor point for personal fall arrest systems. See, for
example, the comments of Spencer Kamps of the Home Builders Association of Central Arizona in Carina Dominguez,
“Feds Reject Ariz. Construction Worker Safety Plan,” azcentral, March 5, 2015, at http://www.azcentral.com/story/
money/real-estate/2015/03/05/feds-reject-ariz-construction-worker-safety-plan/24404521/.
23
The Arizona residential construction fall protection standard is codified at Ariz. Admin. Code R20-5-601.01.
18
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OSHA State Plans: In Brief, with Examples from California and Arizona
OSHA’s Response to Arizona’s Legislation
On March 19, 2014, OSHA sent the Arizona ICA a show-cause letter asking the ICA to
demonstrate why OSHA should not begin proceedings to reject the state’s residential construction
fall protection statute and reconsider final approval of the Arizona state plan on the grounds that
the standard is not at least as effective as the federal standard. Arizona’s response to this letter
focused on the changes to the initial legislation made by the enactment of SB 1307 as discussed
below.
Arizona’s Amended Standard
On April 22, 2014, Arizona enacted SB 1307, which made minor changes to the residential
construction fall protection standard while maintaining the minimum height of 15 feet for the use
of conventional fall protection. In addition, Section 7 of SB 1307 includes a provision that repeals
the provisions in the Arizona Revised Statutes created by SB 1441 that contain the residential
construction fall protection standard if OSHA publishes a notice rejecting the state statute.
OSHA’s Rejection of the Arizona Standard
On February 6, 2015, OSHA published a notice in the Federal Register that it was formally
rejecting the Arizona residential construction fall protection standard and excluding this standard
from Arizona’s state plan.24 Because of the provision in SB 1307 repealing the Arizona residential
construction fall protection legislation upon notice of its rejection by OSHA, OSHA stated that it
expected Arizona to now incorporate the federal standard into its state plan and would defer any
decision on reconsidering final approval of the Arizona state plan pending the state’s action.
The same day that OSHA rejected the Arizona fall protection standard, the Arizona ICA
announced that due to OSHA’s decision and in accordance with SB 1307, the Arizona fall
protection standard was automatically repealed and that, effective February 7, 2015, all Arizona
employers would be required to comply with the OSHA fall protection standard.25
Author Contact Information
(name redacted)
Analyst in Disability Policy
[redacted]@crs.loc.gov , 7-....
24
DOL, “Arizona State Plan for Occupational Safety and Health,” 80 Federal Register 6652, February 6, 2015. This
final notice followed a proposed notice and solicitation of public comments published on August 21, 2014 (79 Federal
Register 49465).
25
This notice was posted on the Arizona Industrial Commission of Arizona (ICA) website at https://www.azica.gov/
osha-rejects-az-fall-protection-standards%20 and is discussed in detail at Bruce Rolfsen, “OSHA Rejects Arizona Fall
Protection Rule; State Starts Enforcing Federal Standard,” Occupational Safety and Health Reporter, February 12,
2015, p. 45 OSHR 153.
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