Under the federal Occupational Safety and Health Act, states may elect to enforce their own health and safety programs in lieu of federal OSHA exercising enforcement authority. A number of states such as North Carolina and South Carolina received state authorization decades ago and have developed their own alternative enforcement programs. The OSH Act requires states that seek their own enforcement authority to implement safety standards that are at least as rigorous as those adopted by federal OSHA.

In June, federal OSHA issued an emergency temporary standard dealing with COVID-19 exposure and preventative measures for employers in the health care industry. South Carolina, Arizona, and Utah announced that the standard would not be enforced in their states. South Carolina said it would instead adopt a general state infectious disease standard that would serve as an equivalent standard. To date, this new standard has not been proposed by SCOSHA.

On Tuesday, federal OSHA announced that it will initiate a proposal to evaluate and potentially revoke those states’ authorization plans based on their failure to enforce the health care emergency standard. This process will involve a 35-day evaluation period once the notice is published in the Federal Register. If the states’ authorization is revoked, federal OSHA would assume inspection and enforcement authority over all employer safety and health standards. Based on the timing of federal OSHA’s announcement, this may be a warning to states about declining to have their OSHA programs enforce the upcoming COVID-19 vaccine-or-test standard applicable to employers with 100 or more employees.