All states in the United States have the option to participate in the federal Occupational Safety & Health Administration (OSHA) program, implement a separate state program that addresses workplace safety (“State Plan”), or run a hybrid program of the two (“Hybrid Federal-State Plan”). Employers need to identify whether their worksites fall under the jurisdiction of OSHA, a State Plan, or a Hybrid Federal-State Plan. The implications of certain workplace safety regulations and potential financial consequences for non-compliance can depend on the program responsible for enforcing health and safety standards in the employer’s location.
For example, in October 2022, a popular retail chain that has thousands of stores across the United States faced millions of dollars in proposed penalties imposed by OSHA after several of its locations—those that were within OSHA’s jurisdiction—were cited with multiple willful and repeat workplace violations. This citation triggered the “severe violator” designation. This subjected all of the chain’s work sites that were within OSHA’s jurisdiction to an OSHA inspection and exposure to additional liability for violations. Less than a month later and after ongoing inspections, OSHA imposed several more millions of dollars in penalties for additional violations discovered in other retail locations within its jurisdiction.
As the case involving this retail chain demonstrates, employers are subject to violations occurring at all of their multistate locations under the same or similar standard. How the standard might be applied depends on which entity – OSHA or an applicable state agency – has jurisdiction over each facility. Whether OSHA or the applicable state’s agency has jurisdiction over an employer’s operations can determine how certain standards are interpreted and enforced. It can also determine the way violations are characterized and the amount of penalty assessed. For example, the California Division of Occupational Safety and Health’s Authority’s (CAL/OSHA) recently expanded its enforcement authority beyond what would typically be exercised by OSHA. CAL/OSHA can now issue an “enterprise-wide violation” against employers with multiple worksites. An enterprise-wide violation presumes that certain violations exist at all of the employer’s worksites within CAL/OSHA’s jurisdiction.
Thus, it is important for all employers to know whether their facility is covered by OSHA, a state plan, or a combination of both.
I. OSHA:
The Occupational Safety and Health Administration is a federal regulatory agency authorized to inspect and examine the safety of certain workplaces in the private sector such as construction, maritime, and general industry works (“OSHA”). However, OSHA does not have jurisdiction over federal agencies, state, and local governments, those that are self-employed, farmers that only employ immediate family members, and employers of non-employees.
Generally, OSHA sets forth specific standards that addresses identified hazardous activities or conditions in the workplace. A statutory provision known as “the General Duty Clause” is a catch-all provision that covers all other recognized workplace hazards. The General Duty Clause requires that all employers keep their place of employment free from recognized hazards that are causing or likely to cause serious injury or death. Employers can be cited for a violation of the General Duty Clause if a recognized serious hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazardous condition. The General Duty Clause is applied only when there is no other OSHA standard applicable to the particular hazard in question.
II. State Plans:
Many states have enacted their own individual state laws regarding occupational safety – covering both private sector and some state and local government workers. In the event that State Plans do not cover certain workers, OSHA provides coverage for those workers. State plans must adopt standards that are at least as protective as the OSHA standards. This does not prevent state laws from establishing more stringent safety requirements than those required by federal standards.
As listed in the chart below, currently twenty-two (22) State Plans cover both private sector and state and local government workers.
III. Hybrid Federal-State Plans:
U.S. states and territories are permitted to develop plans that supplement – rather than replace – OSHA by creating laws that specifically cover state and local government workers only. In these cases, private sector workers and employers remain subject to the jurisdiction of OSHA, but employers of the state and local government are subject to the jurisdiction of the Hybrid Federal-State Plan of its respective state.
Currently seven (7) Federal State Plans cover only state and local government workers. See Reference Chart below.
IV. Conclusion:
OSHA and State Plans often have nuanced differences in how they interpret the applicable standard. This can and does result in interpretations by a State Plan that is more strict than OSHA. Therefore, when developing a safety policy, it is important to analyze and determine which legal authority and standards apply to all of the employer’s locations and how interpretations of applicable standards might differ.
Reference Chart:
