United States: OSHA Withdraws Proposal To Revoke Arizona's State Plan

On February 14, 2023, the federal Occupational Safety and Health Administration (OSHA)announcedthat it would be withdrawing its proposal to reconsider and revoke Arizona's State Plan. This announcement was expected by many in the industry after OSHA reopened the comment period for its proposal in August 2022 and postponed a public hearing that had been scheduled for that month. The withdrawal becameeffectiveon February 15, 2023.

Arizona is one of 22 states and territories with its own State Plan covering both private and state and local government workers.¹ State Plans are OSHA-approved job safety and health programs operated by individual states rather than federal OSHA. Although these State Plans are run by individual states, OSHA will monitor these State Plans to ensure that they are at least as effective as the federal OSHA program.

In April 2022, OSHA issued aproposed ruleto revoke its final approval of Arizona's State Plan pursuant to Section 18(e) of the Occupational Safety and Health Act of 1970. In support of this proposal, the agency detailed its past efforts to ensure that certain standards contained in the Arizona State Plan were at least as effective as federal OSHA standards. OSHA further alleged that the then-current penalty levels set forth in Arizona's State Plan were not as effective as federal OSHA's and that Arizona's State Plan had not adopted the requirements set forth in federal OSHA's June 21, 2021 COVID-19 Emergency Temporary Standard (ETS) applicable to the healthcare industry.

In response, the Arizona Division of Occupational Safety and Health (ADOSH) and the Industrial Commission of Arizona (ICA) submitted a comment outlining the measures they had taken to address OSHA's concerns with their safety and health program. These measures included, among other things, adopting rules on beryllium in construction and shipyards, cranes and derricks in construction as well as railroad roadway work; passing recent legislation tying ADOSH penalties to corresponding federal OSHA penalties; passing additional legislation authorizing adoption of an ETS when either the ICA or OSHA deems the grave danger criteria met; and adopting the recordkeeping and COVID-19 log requirements in OSHA's COVID-19 Healthcare ETS as a permanent standard.

Based on these representations, OSHA withdrew its proposal to reconsider the final approval status of Arizona'sState Plan. This means that the ArizonaState Plan will remain in place and ADOSH will continue to oversee the State's safety and health program.