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Utah failed to adopt a federal standard to protect health care workers from COVID. Now the feds may step in.

Utah is one of 22 states allowed to enforce workplace safety independent of the feds. That status is now in jeopardy.

(Andrew Harnik | AP) Labor Secretary Marty Walsh speaks at a press briefing at the White House, Friday, April 2, 2021, in Washington.

The U.S. Department of Labor announced Tuesday they were moving to revoke Utah’s state-run program for enforcing workplace safety standards. The decision is the result of a strategic blunder by the Cox administration, which could derail a plan by lawmakers to push back on a federal mandate for private businesses.

Utah is one of 22 states the federal government has authorized to run their own workplace safety enforcement program, with the requirement that any deviation from federal regulations must be “at least as effective” as the federal rules. Utah gets $1.6 million in grant funding from the Occupational Safety and Health Administration for the state plan.

In June, the federal government issued an emergency workplace safety rule requiring hospitals, nursing homes and other health care facilities to have a written plan to slow the spread of the virus. Employers are also required to provide N95 masks to employees and enforce 6 feet of distance between employees or install barriers where that is not possible. There was also a provision allowing time away for workers who got sick.

The feds say Utah, along with Arizona and South Carolina, have not implemented those standards or provided any implication that they would enact an alternative that’s at least as effective as the federal standards. The three states had until July 21 to adopt the federal standards or propose an adequate alternative.

Utah’s workplace safety program was under “final approval” status, which means OSHA has no legal authority to enforce workplace safety standards in Utah since the state-plan was taking care of it. If the feds reconsider that status, they could take over some aspects of enforcing workplace safety in the state.

“OSHA worked in good faith to help the state plans come into compliance with their requirement to adopt an equivalent emergency temporary standard,” said Jim Frederick, Acting Assistant Secretary for Occupational Safety and Health said on a Tuesday media call. “Their continued refusal is a failure to maintain their state plan commitments to thousands of workers in their state.”

(Chris Samuels | The Salt Lake Tribune) Sen. Curt Bramble, left, R-Provo, and Rep. Joel Ferry, R-Brigham City, during a meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City.

This is not a case of miscommunication as Utah officials were well aware they were flaunting federal rules. During a special legislative committee meeting earlier this month, Utah Labor Commissioner Jaceson Maughan admitted the Cox administration refused to implement the emergency order.

“We pushed back on that in the form of a letter from Governor Cox, joined by the governors of Nebraska and Wyoming, asking Secretary Walsh not to make that mandatory. We pointed out the legal concerns we had and the enforceability concerns we had. We have yet to hear back on that,” Maughan said.

Maughan told lawmakers the rule would only be in effect for 180 days, and the strategy was simply to run out the clock until the rule expired in December. He also said the Cox administration was confident that refusal to adopt an emergency standard would not result in an adverse action against Utah by the Biden administration.

“It’s doubtful OSHA would start the process to invalidate a state plan. I think there would be multiple letters, multiple requests, a demand that it’s adopted and then some more discussions,” Maughan said.

Given Tuesday’s announcement by the feds, that seems like a severe strategic error.

In a joint statement released late Tuesday, Gov. Spencer Cox and Lt. Gov. Deidre Henderson issued a joint statement expressing disappointment with the OSHA decision.

“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 (OSHA), we will ask once again for an opportunity to engage with the Biden administration about our legitimate concerns complying with the proposed Healthcare ETS. Despite today’s communication, we still welcome an opportunity to further explain our position and recommendations,” they said.

Utah lawmakers were considering using Utah’s independence from OSHA as a way to get around the Biden administration’s plan to require businesses with 100 or more employees to either mandate the COVID-19 vaccine for workers or implement weekly testing. With Utah’s state-run program in jeopardy, it does not seem like there will be much room to maneuver in getting around a possible federal vaccine mandate.

“This complicates our efforts to push back on the federal vaccine mandate,” Senate President Stuart Adams, R-Layton, said Tuesday.

Adams said state leaders plan to meet over the next few days to review their potential response to OSHA.

“We still think Utah has led the way through the pandemic. The federal government ought to respect the way we’ve handled things both economically and with the spread of the virus,” Adams added.

While OSHA officials said Tuesday’s action was in no way related to Utah preparing to push back against a possible private business vaccine mandate, some Utah lawmakers were not so sure.

“This feels like a preemptive action on the part of the feds because they’re concerned the state is resisting an overall vaccine mandate on businesses,” Rep. Robert Spendlove, R-Sandy, said.

Others worried involvement by the federal government would make the current atmosphere surrounding the response to COVID-19 worse.

“It just creates more divisiveness when the feds come in and push their standards on us,” House Majority Whip Mike Schultz, R-Hooper, said.

Now that the states have been notified by OSHA, the agency will announce their intent to reconsider their status in the federal register. That kicks off a 35 day comment period on the proposed revocation.

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