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Utah faces repercussions for failing to adopt federal emergency standard for COVID-19

A University of Utah Health worker gets ready to treat patients in the medical intensive care unit at University of Utah Hospital on July 30.

A University of Utah Health worker gets ready to treat patients in the medical intensive care unit at University of Utah Hospital on July 30. (Charlie Ehlert, University of Utah)

Estimated read time: 4-5 minutes

SALT LAKE CITY — Because Utah has not accepted a federal emergency temporary standard to protect health care workers from COVID-19 or provided a sufficient alternative, the federal Occupational Safety and Health Administration said Tuesday it is reconsidering and proposing to revoke the state's current approval to run its own workplace safety and health program.

The move would put the program back under the federal administration's authority.

On June 21, the U.S. Department of Labor issued an emergency temporary standard to help protect health care workers from COVID-19. Utah is one of 22 states that has an approved state plan, a state-run workplace safety and health program for private sector and state and local government workers. This standard included preventative safety measures like masks and social distancing as well as leave for workers who contracted COVID-19. It applies to health care workers in occupations that are at high risk for exposure to the coronavirus.

Because of the declaration of the emergency standard through OSHA, these states were required to either adopt the standard or create an alternative that's at least as effective.

Of the other 28 states and territories that have state plans in place, only three have failed to adopt any part of the emergency temporary standard or provide an alternative — Utah, South Carolina and Arizona. The federal Occupational Safety and Health Administration sent these states courtesy letters to notify them of these failures.

"OSHA has worked in good faith to help the three state plans come into compliance with their requirement to adopt an equivalent emergency temporary standard, but their continued refusal is a failure to maintain their state plan commitments to both provide a program for employee safety and health protection that meets the requirements of the OSH Act and is at least as effective as the federal program," said Jim Frederick, deputy assistant Secretary of Labor for OSHA.

The states were given until July 6 to notify the administration concerning what they were going to do about this failure to meet the standard. Even after Utah was notified, it failed to meet that deadline as well as the 30-day deadline to provide an "at least as effective" alternative, the administration said. The state also failed to notify the administration about why it failed to meet these deadlines and has still refused to indicate whether it intends to adopt the federal standard or an alternative, effective standard.

Because of these failures, the administration said it is starting reconsideration procedures and proposing to revoke the state's final approval.

"The longer they refuse, the longer they are needlessly putting thousands of workers at risk," Frederick said.

Utah Gov. Spencer Cox and Lt. Gov. Deidre Henderson disputed the Department of Labor's assessment in a statement issued Tuesday evening.

"We're very disappointed in the U.S. Department of Labor's assertion that Utah's state plan is less effective than the federal program. In a July 21, 2021, letter to Labor Secretary (Marty) Walsh, the governors of Utah, Wyoming and Nebraska expressed concerns that the health care (emergency temporary standard) would place an unfair burden on the health care industry and noted that our states do not have regulatory authority to require employers to pay their employees sick leave," Cox and Henderson wrote.

"We reject the assertion that Utah's state plan is less effective than the federal plan. While we have not refused to adopt standards set by the Occupational Safety and Health Administration, we will ask once again for an opportunity to engage with the Biden administration about our legitimate concerns complying with the proposed health care ETS. Despite today's communication, we still welcome an opportunity to further explain our position and recommendations."

There are several stages of federal approval of a state plan, and the first is called "initial approval." During this stage, the state and the Occupational Safety and Health Administration maintain shared authority that "can be exercised as the OSHA deems necessary and appropriate." Utah must also prove that its state-run program is at least as effective in protecting workers and preventing workplace injuries, illnesses and deaths as the federal administration's plans.

Once a state plan reaches final approval status, the federal government does not enforce the program and leaves it to the state. Utah's state plan reached final approval status in 1985, which meant that the state was entirely in charge of the enforcement rather than the federal government, as long as it is monitored and approved by the administration. Utah receives $1.6 million in grant funding from the Federal Occupational Safety and Health Administration.

The next step in the reconsideration process is to give the states federal register notice and then offer a 35-day comment period for interested individuals to discuss the proposed revocation. Commenters with substantial objections could raise a hearing. At the end of the process, the administration will make a determination regarding revocation at that time.

"We need to thoroughly understand the comments we received and understand the viewpoints expressed. We'll analyze the comments and make certain we move forward properly at that time," Frederick said.

The decision is driven by the administration's desire to maintain safety, because "OSHA's job is to protect workers," he added.


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