Federal OSHA Proposes to Take Over Enforcement of Construction Standards in Arizona

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On August 21, 2014, the federal Occupational Safety and Health Administration (OSHA) proposed to revoke its approval of Arizona’s state occupational health and safety plan with respect to construction. If OSHA follows through on this proposal, Arizona employers that are engaged in construction work and now are subject only to regulation by the Arizona Department of Occupational Safety and Health (ADOSH) will become subject to federal OSHA enforcement and regulation.

While state and federal safety and health standards generally do not differ, federal OSHA enforcement procedures and regulations are much different than those under ADOSH. In particular, the federal agency’s penalties for violations and enforcement programs are more aggressive. If federal OSHA actually asserts jurisdiction, Arizona construction employers will need to quickly become familiar with the federal inspection and citation process and with federal regulations.

Federal OSHA’s Dispute With ADOSH

Federal OSHA requires that ADOSH—and all other state-run OSHA plans—adopt and enforce safety and health standards that are “at least as effective as” federal OSHA standards. Federal OSHA is seeking to rescind its approval of Arizona’s state plan because it contends that the residential construction fall protection regulations adopted by ADOSH are not at least as effective as the federal standards.

Federal OSHA’s residential construction standards generally require “conventional” fall protection (i.e., fall arrest systems, safety nets, or guardrails) to be used when employees are working at heights of six feet or above. (29 C.F.R. § 1926.501(b)(13); STD 03-11-002) Alternative fall protection measures are permissible under the federal standards, but only if an employer can demonstrate that conventional methods are infeasible and the employer adopts a site-specific fall protection plan where conventional methods cannot be used. In 2012 and 2014, the Arizona legislature passed a residential construction standard that only requires use of conventional fall protection when employees work at heights of 15 feet or above. (A.R.S. § 23-492 et seq.) The Arizona law also allows employers to adopt alternative fall protection plans that are not site-specific. Over ADOSH’s objection, federal OSHA has determined that Arizona’s standard is ineffective because it only requires protection against falls beginning at heights of 15 feet, rather than the six-foot level set by the federal standards.

In response to this perceived deficiency, federal OSHA has initiated procedures to (1) reject Arizona’s fall protection standard and (2) rescind its approval of the ADOSH state plan with respect to all construction work. Although the disputed standard pertains only to residential construction, federal OSHA states in its proposal that it will not be possible or practical to limit federal coverage to the residential construction arena. Therefore, OSHA intends to revoke approval of and assume jurisdiction over all construction work in Arizona. ADOSH would retain jurisdiction and enforcement authority with respect to all other types of work.

Consequences Of OSHA’s Proposed Action

Because OSHA defines “construction” in terms of the work being performed, not in terms of the industry in which an employer is involved, a single employer in Arizona could potentially be subject to both federal OSHA and ADOSH jurisdiction, depending on the type of working being performed. Furthermore, employers that perform genuine construction work exclusively will be subject to federal OSHA jurisdiction, instead of ADOSH jurisdiction.

While most federal OSHA and ADOSH safety standards are similar, federal OSHA and ADOSH utilize two vastly different enforcement schemes with different inspection procedures, penalty assessments, and appeals processes. The partial revocation of ADOSH jurisdiction will likely create uncertainty for Arizona employers and their employees, and could potentially require employers to revise their safety rules and practices to comply with federal law, where they were previously only subject to Arizona law.

Although federal OSHA’s proposal did not specifically address the significant effects its actions could have on employers outside the residential construction industry, Arizona employers and other interested parties can submit comments to OSHA regarding their concerns about OSHA’s proposed action before the federal agency makes a final decision. Comments are due by September 25, 2014, and OSHA may conduct public hearings thereafter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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