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Volume XII, Number 272

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Workplace Safety in Arizona: OSHA Delays Decision on Proposal to Revoke State Plan

The federal Occupational Safety and Health Administration (OSHA) is holding off on deciding whether to revoke final approval of Arizona’s occupational safety and health (OSH) plan. On August 10, 2022, OSHA said it is extending the comment period on a proposed rule to revoke the state’s approval for another 60 days and postponed a public hearing tentatively scheduled for August 16, 2022.

On April 21, 2022, OSHA issued a proposed rule to revoke Arizona’s OSH plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. The move would result in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH).

OSHA said the additional 60-day comment period will give stakeholders the opportunity to comment on ADOSH’s more recent actions and what “impact those actions should have on OSHA’s proposed revocation” of the state plan’s final approval.

OSHA sought to revoke the Arizona state plan’s approval on the basis that the state’s failure to adopt OSHA’s COVID-19 emergency temporary standards (ETS) for healthcare workers as an “emergency” rule. OSHA further based its proposed rule on its claim that, in 2012, Arizona failed to implement residential construction fall protection requirements and that it allegedly failed to “timely” adopt other various programs of national emphasis.

ADOSH and the Industrial Commission of Arizona (ICA) submitted a comment letter on July 5, 2022, defending the state’s decision not to adopt OSHA’s COVID-19 healthcare ETS as an emergency rule. The agencies said ICA had determined that COVID-19 did not present a sufficiently grave danger to justify enacting the standards on an emergency basis. Arizona’s legislature later approved and adopted OSHA’s COVID-19 ETS through its normal rulemaking process.

The ICA and ADOSH also defended the state’s OSH plan, arguing that “Arizona consistently outranks most OSHA states in injury and fatality rates” in large part due to Arizona’s ability to understand and focus on “the hazards associated with the industries and companies located within its state.”

OSHA said further notices will be published in the next few days and that it will review any comments before scheduling a new hearing or making any decisions. The deadline for comments was previously extended from May 26, 2022, to July 5, 2022.

Arizona is one of 28 states and U.S. territories, including Puerto Rico and the U.S. Virgin Islands, to have its own state-operated workplace safety and health program approved by OSHA.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 224
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About this Author

Nonnie Shivers, Ogletree Deakins Law Firm, Employment Litigation Attorney
Shareholder

Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive counseling and training; investigations and resolutions when pre-litigation concerns arise; and litigating legally complex and factually challenging cases to defend employer’s actions.  

Nonnie advises and counsels private and public employers in all aspects of employment law. Nonnie regularly partners with clients to plan and implement reductions in force, severance plans and agreements, and pre-litigation disciplinary matters. Nonnie...

602-778-3706
Shareholder

John D. Surma is a shareholder in the Houston, Texas office of Ogletree Deakins. His practice focuses on representing employers in workplace safety and health matters, including preventive advice and counseling, regulatory actions, and investigation.

John counsels and represent clients throughout the United States before a variety of regulatory agencies including OSHA, MSHA, the U.S. Chemical Safety Board, the Nuclear Regulatory Commission, the U.S. Environmental Protection Agency, the Federal Railroad Administration/American Association of...

713-655-5772
Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Andrew Levin Employment Litigation Attorney Ogletree Deakins Phoenix
Associate

Andy represents businesses in a wide range of employment litigation and provides day-to-day advice to management on employment issues. Andy has experience with matters in federal and state court, including California class action lawsuits and high-stakes restrictive covenant disputes, including non-compete, non-disclosure, and non-solicitation agreements. He regularly defends litigation and administrative charges alleging discrimination, harassment, and retaliation violations. Andy also has experience assisting companies with internal investigations and those conducted...

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Ryan Swink Houston Employment Attorney Ogletree Deakins Nash Smoak & Stewart PC
Associate

Ryan Swink is an associate in the firm’s Houston office, where he advises and represents employers on all matters impacting their employees under federal and state labor and employment laws, including compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). Ryan conducts investigations, handles charges of discrimination, harassment and retaliation, and defends any ensuing litigation in state and federal court.

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