Right now, enforcement of federal worker safety laws is the responsibility of the Arizona Industrial Commission via the Arizona Department of Occupational Safety and Health (ADOSH).
However, the US Department of Labor’s Occupational Safety & Health Administration (OSHA) has recognized a pattern of lax or even nonexistent enforcement of federal worker safety requirements in Arizona during the Ducey Administration & is in the process of revoking Arizona’s state plan- meaning the fed’s would take back the responsibility for worker safety compliance in Arizona.
Per the U.S. Labor Department: “In April, the Department of Labor issued the proposal in response to the Arizona State Plan’s nearly decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as those used by the department’s Occupational Safety and Health Administration.”
In a last-ditch effort to keep the enforcement of labor laws in Arizona, ADOSH conceded that they have been doing a bad job and committed to several measures to address concerns (e.g., increasing maximum penalty amounts and adoption of standards and enforcement directives that were past due). The Federal Register notice will include a list of Arizona’s completed measures.
Up until this point, Governor Ducey appeared to be willing to cede ADOSH authority to OSHA given his only public statement on this matter is that this action is a “political stunt and power grab”.
Rather than proceeding with revocation of the Department of Labor’s delegation agreement with Arizona, OSHA reopened the comment period for an additional 60 days on their proposal to revoke Arizona’s State Plan for Occupational Safety and Health.
The additional 60-day comment period will allow stakeholders the opportunity to comment on ADOSH’s actions and the impact those actions should have on OSHA’s proposed revocation of the State Plan’s final approval. After the Federal Register notice is published, stakeholders will be able to submit comments online using Docket No. OSHA-2021-0012 on the Federal eRulemaking Portal.
Editorial Note: The Ducey Administration has a long history of having been captured by industry when it comes to enforcement of worker safety laws. OSHA doesn’t revoke delegation agreements unless there is a long-standing pattern of non-compliance.
I’m sure OSHA knows full-well that nothing is going to really change during the last 140 days of the Ducey Administration. They might withhold their judgment about whether to revoke the state plan to see if they believe the next governor will actually be committed to worker safety.
Example of the Comments in the Public Record About the Ducey Administration’s Worker Safety Regulation Track Record
(It’s Not Pretty)
There are a number of important public comments in the record documenting the Ducey Administration’s slipshod implementation of worker safety regulations in Arizona. Below is among the most informative of the comments:
Establishing and adopting occupational safety and health standards is fundamental to OSHA enforcement. Enforcement of such standards is the keystone to protecting employees from exposure to hazards shown by research and experience to be harmful to employees.
As established by Congress in the 1970 OSH Act, states are allowed to form an OSHA-approved state plan provided they develop and enforce standards that are “at least as effective” as those established by OSHA. Adopting OSHA safety and health standards, when they apply, is not optional and must be completed in 6 months.
Additionally, adopting OSHA directives such as operation manual updates, inspection emphasis programs, and enforcement procedures is also important to maintaining an effective state plan.
As indicated by OSHA, the Industrial Commission of Arizona (ICA) failed to adopt in a timely manner, or even at all, several major OSHA standards and compliance directives.
When the ICA fails, or delays, to adopt new safety standards and directives as required, workers under its jurisdiction are denied protections afforded by Congress. In the case of OSHA’s silica standard, the ICA adopted it some 27 months after OSHA was already enforcing it in states under Federal OSHA.
Simply, ADOSH cannot enforce standards before and until the ICA adopts them. To claim that ADOSH is at least as effective as OSHA when it has not adopted or created equal or better occupational safety and health standards to enforce is preposterous.
Other workplace safety & health responsibilities the State leadership failed to meet:
- The ICA failed to promulgate OSHA-required occupational safety & health standards and to cooperate with Federal OSHA to maintain the state plan as effective as the OSHA program as required by Arizona Revised State (A.R.S.) 23-405.
- The ICA frequently deleted citations before issuance after the initial burden of proof was established and, in some cases, severely reduced monetary penalties.
- The ICA Commission was composed of four members instead of five as required by A.R.S. 23-401 for the better part of six of the last seven years. (Stacking the Commission to ensure diminished enforcement?)
- Workplace safety & health enforcement inspections conducted by ADOSH fell from 1,218 in 2017 to 540 in 2020. The agency completed 530 inspections in 2019. ADOSH’s inspection goal in 2020 was 1,295.**
- Serious, willful, and repeat workplace safety violations issued by ADOSH fell from 1,003 in 2017 to 444 in 2020.*
- The number of safety and health compliance inspectors at ADOSH fell from 24 in 2017 to only 17 in 2020.**
The obvious conclusion: Arizona State leadership has failed to fully protect Arizona workers as required. Revocation of final approval and reinstatement of Federal concurrent authority in Arizona is warranted. Concurrent enforcement should remain in place until such time as State leadership clearly demonstrates the will to correct its deficiencies and maintain performance of at least the most fundamental requirements.
The fact that such action is warranted at all is a travesty. Retaining exclusive local jurisdiction over occupational safety & health enforcement provides several advantages to Arizona in terms of service and responsiveness. The privilege should have been better safeguarded by State leadership.
The State leadership’s performance in the issues discussed demonstrates a low regard for the rights of Arizona workers as guaranteed by Congress. It also reflects disdain for Arizona lawmakers who previously worked to establish the State Plan and maintain the privilege. Regardless, Arizona’s performance in enforcing occupational safety and health is unacceptable and must be immediately corrected if the Act is to mean anything at all.