Nevada lawmaker introduced boost protections under OSHA state plans

Federal legislation introduced in the House of Representatives would strengthen protections offered under state Occupational Safety and Health Administration plans.

The Ensuring Worker Safety Act, sponsored by Rep. Dina Titus, D-Nev., would require that state OSHA plans are at least as effective as federal standards and enforcement. The bill would protect states' rights by giving OSHA additional options when a state plan is found to be underperforming.

The Occupational Safety and Health Act of 1970 sets out a federal-state framework for workplace safety and health. Under existing law, states may either apply to the federal Department of Labor to operate their own state health and safety program or remain under federal OSHA authority. To be approved, states must demonstrate that their program standards and enforcement are "at least as effective" as federal OSHA. Currently, there are 22 states and territories, including Nevada, where health and safety enforcement is conducted by state health and safety programs.

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Once federal OSHA issues final approval for a state plan, Titus said the agency is extremely limited in its authority to hold state plans accountable. If OSHA determines that an approved state plan is not "at least as effective as" federal standards and enforcement, its only recourse to compel changes to an underperforming program is to terminate the state plan. Titus said this drastic step that would remove state control, leave state and local government employees unprotected, and add costs to the DOL for funding and running a health and safety program in the state.

Specifically, the Ensuring Worker Safety Act would establish a formal mechanism for OSHA to identify a problem with a state plan and compel a remedy without beginning the process for withdrawing approval. It also would ensure the continued application of health and safety regulations by providing OSHA with concurrent enforcement authority while a state plan is remedying deficiencies. In addition, the bill would hold federal OSHA accountable for providing strong oversight and guidance to state plans by establishing a regular study by the Government Accountability Office -- one every five years -- to look at the effectiveness of state plans and the Secretary of Labor's oversight of such plans.

Study raises concerns. Due to a number of work-related fatalities, Nevada became the first state to have an in-depth review that highlighted the problems facing the state's OSHA program. Between July and August 2009, federal OSHA officials evaluated Nevada's workplace fatality investigations, as well as information from all of the state's OSHA inspections conducted from January 2008 through June 2009. The agency identified a number of systemic issues that caused great concern, including hazards that were not cited, families of deceased workers who were not notified of fatality investigations nor provided opportunities to speak to investigators, and a limited knowledge of construction safety hazards demonstrated by Nevada OSHA investigators. Titus said this review made it clear that federal OSHA needs an additional option to work with states that are not meeting federal standards.

"The tragic deaths of numerous workers in Southern Nevada highlighted the need to ensure that state OSHA plans are doing their job of protecting workers," Titus said. "Unfortunately under current law, federal OSHA is left with only two options, both at the extreme end of the spectrum, when it finds state plans that are ineffective. This legislation provides OSHA with an important middle ground so it is not left with the choice of doing nothing or the drastic step of terminating a state plan."

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May 10, 2010

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