Understanding OSHA: State Plans

The Occupational Safety and Health Administration (OSHA) encourages individual states to take responsibility for OSHA administration and enforcement within their respective boundaries. Each state possesses the capability to request and be granted the right to implement state-specific safety and health standards and regulations. Along with these regulations also comes the right to enforce them as well. In section 18(b) of the OSH Act, any state “which at any time, desires to assume responsibility for development and the enforcement therein of occupational safety and health standards relating to any…issue with respect to which a federal standard has been promulgated…shall submit a state plan for the development of such standards and their enforcement.”

Prior to a state plan being put into action, the state must develop and submit its proposed program to the secretary of labor for review and approval. The secretary must certify that the state plan’s standards are “at least as effective” as the federal standards and that the state will devote adequate resources and funding to administer and enforce the proposed standards (Id. § 667[c]).

Most state plans contain more-stringent safety standards than the federal OSHA standards. Enforcement activity and penalties are usually considered to be more stringent as well. The secretary of labor has no statutory authority to reject a state plan if the proposed standards or enforcement schemes are more strict than the OSHA standards, but can reject the state plan if the standards are below the minimum limits set under OSHA standards (29 U.S.C § 667). These states are known as ‘state plan’ states and territories. Currently, there are currently 22 state plans covering both the private sector and state and local government workers, and there are six state plans covering only state and local government workers (OSHA, n.d.). Federal OSHA plays virtually no role in direct enforcement.

However, OSHA does possess an approval and oversight role regarding state plan programs. OSHA must approve all state plans prior to enactment. OSHA also maintains oversight authority to revoke the state plan at any time if the program is not achieving the identified and required prerequisites. A popular example of OSHA’s revoking power happened in 1991 after a fire at the Imperial Foods facility in Hamlet, North Carolina. Federal OSHA assumed jurisdiction and control over the state plan program in North Carolina and made significant modifications before returning it to the state’s control.

It is important for safety and risk professionals and their organization to identify and distinguish between a state plan jurisdiction and federal OSH Act jurisdiction. If its facilities or operations are located within a state plan state, the employer must comply with the state plan regulations. Safety and risk professionals should contact each state’s Department of Labor to acquire pertinent regulations and standards. If facilities can be acquired from any area OSHA office or the Code of Federal Regulations.

A common mistake that employers make is when operations are conducted in multiple different locations. Each facility needs to be assessed for which jurisdiction is must fall within and which standards, federal or state, are applicable. For example, consider a company with a corporate headquarters in Delaware and operations in Kentuck, Utah, California, and West Virginia. Facilities in Delaware and West Virginia are under federal OSHA jurisdiction, while operations in Kentucky, Utah, and California are under state plan jurisdiction.