On April 20, 2022, the U.S. Department of Labor (DOL) announced a proposal to reconsider or revoke Arizona’s state OSHA plan. If implemented, it would lead to federal OSHA taking over regulation of private employers in the state.

Arizona, California and New Mexico are among the 22 states that have their own OSHA State Plan agencies that regulate private employers. Under the OSH Act, State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.

OSHA monitors and evaluates State Plans annually to determine whether the State Plan is continuing to operate at least as effectively as OSHA, track a State Plan’s progress in achieving its strategic and annual performance goals, and ensure that the State Plan is meeting its mandated responsibilities under the Act and other relevant regulations. Where OSHA determines that a state plan is failing to regulate and or adequately enforce occupational health and safety regulations, the agency may initiate proceedings to revoke approval of the State Plan and reinstate federal OSHA authority.

According to DOL’s press release “OSHA has grown increasingly concerned that actions by the Arizona State OSHA Plan suggest the state is either unable or unwilling to maintain its commitment to provide a program for worker safety and health protection as the OSH Act requires. OSHA indicate that Arizona has failed to adopt adequate maximum penalty levels, occupational safety and health standards, National Emphasis Programs and – most recently – the COVID-19 Healthcare Emergency Temporary Standard.”

The agency contends that Arizona has engaged in a “nearly a decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as [federal OSHA’s]”.  DOL’s action may have been due to Arizona’s failure to respond to OSHA’s October 19, 2021 “courtesy letter” concerning the State’s failure to adopt OSHA’s COVID-19 healthcare emergency temporary standard (ETS) within 30 days of its June 21, 2021 publication in the Federal Register. South Carolina and Utah also received such letters, however those States responded by issuing ETSs.

OSHA’s proposal on Arizona decertification is available for public inspection in the Federal Register and will be published on April 21, 2022; publication starts the revocation process. The public can comment on the proposal until May 26, 2022, and an online hearing may be held on August 16, 2022. After reviewing comments and other evidence, OSHA will announce its reconsideration and revocation decision on the final approval of Arizona’s State plan through another Federal Register notice.