The Occupational Safety and Health Act (OSHA) established a dual enforcement structure for inspections and citations for workplace safety issues. Either federal OSHA enforces the law, or states have the option of electing to establish their own OSHA agency and receive federal approval to regulate safety issues in those states. About half of the states, including North Carolina, South Carolina, and Virginia, set up their own OSHA agencies. Under the OSH Act, those state agencies must apply at least equivalent safety rules and enforcement efforts within their programs.

In recent years, a number of states have clashed with federal OSHA over the sufficiency of their workplace safety efforts. Several states announced that they would not enforce federal workplace safety rules relating to COVID-19 exposure and made half-hearted, if any, attempts to issue their own protections. At one point, federal OSHA threatened South Carolina with the removal of its authority to enforce OSHA rules in that state. That threat led to a quick retreat by the state agency.

Other states have been more willing to challenge federal OSHA. Earlier this month, OSHA announced a proposal to reconsider and revoke Arizona’s state enforcement authority. Federal OSHA cited the state’s failure to adopt maximum penalty provisions, follow National Emphasis programs, and adopt the expired COVID-19 Healthcare Emergency Temporary Standard as the basis for this action. OSHA is accepting comments on the proposal for 35 days and could withdraw it if Arizona commits to measures intended to correct the noted deficiencies. Arizona employers will likely apply significant pressure on the state to avoid federal OSHA enforcement.

This move by federal OSHA is consistent with its announced intent to increase the rigor of workplace inspections and the severity of penalties assessed against companies found to have violated workplace safety standards. States unwilling to follow this lead may be subject to similar efforts to impose federal jurisdiction over their inspection programs.