Pursuant to Section 18 of the Occupational Safety and Health Act of 1970 (Federal OSHA), States may administer their own job safety and health programs, or State Plans, if they meet minimum federal requirements. There are 22 states and jurisdictions that administer State Plans covering both public and private sector employees. Five states administer State Plans covering only public sector employees. These State Plans may operate because Federal OSHA approved of them as being “at least as effective” as the Federal OSHA program.
Most State Plans have adopted Federal OSHA regulations and standards verbatim. States such as California, Michigan, Oregon and Washington have State Plans that differ significantly from Federal OSHA. These states have standards that are more stringent than Federal OSHA standards or address hazards not covered by Federal OSHA.
If Federal OSHA establishes a new standard, the state must adopt that standard within six months after it was established. Employers must comply with the regulations and standards of only the State Plan if there is one that applies to them. Otherwise, employers must comply with Federal OSHA.
Why Some States Adopted State Plans
It is hard to know why any one of the 22 states chose to adopt a State Plan instead of opting into the Federal OSHA program, but here are the most conceivable explanations:
- Some states adopted a State Plan to collect the federal government’s contribution of funds of up to 50 percent of a State Plan’s operating costs.
- Because almost all of the states with State Plans had been administering their own job safety programs for years before OSHA took effect, they simply chose to keep doing so by adopting a State Plan.
- Some states adopted a State Plan because they decided that their workplaces required state-specific, additional or more stringent regulations, clarification or enforcement to ensure employee safety.
- While Federal OSHA is constitutional under the Commerce Clause, some states believe that the power to regulate job safety and health rightly belongs to the states pursuant to the Tenth Amendment.
General Differences Between State Plans and Federal OSHA
Aside from differences in the scope and specifity of the regulations, State Plans and Federal OSHA differ in a few other ways:
- State Plans tend to be more responsive to local needs than Federal OSHA.
- Federal OSHA does not cover public sector employees, while all 27 State Plans do. This is an important benefit to public employees because some of the most dangerous occupations – firefighting, law enforcement and emergency response – are in the public sector.
- Unlike Federal OSHA, many State Plans have innovative programs that promote worker safety and health.
The Two Ends of the Spectrum
Employers can face different results based on which agency has jurisdiction: the State Plan or Federal OSHA.
- California Occupational Safety and Health Administration (Cal/OSHA)
Cal/OSHA requires employers to implement a written, effective Injury and Illness Prevention Program (IIPP); Federal OSHA does not. This is a key difference between Cal/OSHA and Federal OSHA because California employers are most often cited for violations of IIPP requirements.
For example, an employee developed symptoms of heat exhaustion while working in 90-degree temperatures inside a warehouse. Cal/OSHA cited the employer for not recognizing the symptoms as heat-related and addressing the conditions that caused the worker’s illness. Cal/OSHA requires these issues to be addressed in an IIPP. In contrast, Federal OSHA would not have cited the employer because Federal OSHA does not have an IIPP or similar requirement or specifically cover indoor temperatures, except in high-heat environments, such as steel foundries and ceramic plants.
- Kentucky Occupational Safety and Health Program (Kentucky OSH)
In 2007, a factory employee was in the mixing room where flammable chemicals were stored in open containers. As she was transferring toluene from a 55-gallon drum to a plastic bin, a spark ignited the toluene vapors, causing a flash fire that burned 90 percent of her body.
Kentucky OSH cited the factory for 16 “serious” violations totaling over $100,000 in fines. After the factory’s attorney promised he would contest each violation in court, Kentucky OSH dismissed all of the violations in 2008, finding that “the case would not have withstood legal challenge.” Instead, Kentucky OSH and the factory entered into a settlement agreement in which the factory agreed to make safety improvements and the agency would conduct follow-up inspections.
After learning about the dismissal of the case, a concerned citizen filed a formal complaint against Kentucky with Federal OSHA. It concluded in 2011 that Kentucky OSH erred in dismissing the case. In July, 2012, Kentucky OSH reinstated the citations, alleging that the factory failed to live up to the terms of the settlement agreement.
Undoubtedly, if Federal OSHA had jurisdiction, it would not have dismissed this case before at least collecting the fines. Federal OSHA’s Atlanta regional administrator stated that completely deleting citations shows employers that “they need only contest to alleviate the burden of history.”
Information for Employers in State-Plan States
Employers doing business in a State-Plan state can find a trove of information about that state’s job safety and health laws at http://www.osha.gov/dcsp/osp/index.html.