OSHA Clash with State Safety Regulators a Concern to Employers

Date: 2013

In a disagreement between federal and state agencies that affects Arizona employers, the federal Occupational Safety and Health Administration (OSHA) and the Arizona Department of Safety and Health (ADOSH) have clashed over enforcement of workplace safety laws.

Under the work-sharing agreement between OSHA and ADOSH, Arizona may enforce its statutes at the expense of federal enforcement only if the standards in those statutes are at least as protective of worker safety as the federal standards. The recent controversy is an indicator that OSHA is closely monitoring enforcement by the State, which is consistent with the federal agency’s increased efforts nationwide. OSHA has been increasingly active over the past few years, not only citing a larger number of employers annually than ever before, but also increasing the fines it assesses.

The OSHA-ADOSH dispute concerns enforcement of “fall protection” safety standards aimed at preventing workers from falling at residential construction jobsites. In 2012, the Arizona legislature adopted a statute requiring contractors to take safety precautions against falls at 15 feet, but federal law requires fall protection at six feet.

The American Society of Safety Engineers complained to OSHA, and in December 2012 OSHA warned ADOSH that, if the state agency did not begin enforcing the more protective federal standard, OSHA could take over enforcement. In February, ADOSH responded, noting that the federal directive was based on a standard that had not been effectively enforced for 15 years. ADOSH further noted that the state’s enforcement efforts have been effective in achieving a low fall and fatality injury rate.

As of the writing of this article, OSHA had not yet responded to ADOSH. It therefore remains to be seen whether the federal agency will pursue taking over enforcement in Arizona. Regardless of whether the agency does so, OSHA’s threatened actions signal its continuing pursuit of increased enforcement of safety standards.

OSHA’s efforts are likely not limited to the residential construction industry. In this regulatory environment, employers in all industries should take proactive steps to ensure compliance with workplace safety laws, including:

• making safety a priority;
• implementing training programs on safety issues;
• conducting safety audits;
• developing policies that prohibit known unsafe conduct (including a “no texting while driving” policy for employees who drive for work); and
• ensuring appropriate documentation and recordkeeping, including logs, training records, maintenance records, etc.