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OSHA Instruction STP 2-1.9 October 30, 1978 Office of the Assistant Secretary

August 10, 1972 OSHA PROGRAM DIRECTIVE # 72-22

To: Regional Administrators, Assistant Regional Administrators for State Programs, National Office Directors

Subject: Coverage of State and Local Employees in State Plans

1. Purpose: to describe the conditions which a State must meet in order to satisfy the requirement of Section 18 that its plan contain a program for public employees (Section 18(c)(6).

2. Explanation Under Section 18(c) of OSHA, the Assistant Secretary is required to approve a State plan if in his judgment eight separate criteria specified by Congress are met in the plan. Among these criteria is that contained in 18(c)(6), which requires that the plan:

"contains satisfactory assurances that such State will, to the extent permitted by its law, establish and maintain an effective and comprehensive occupational safety and health program applicable to all employees of public agencies of the State and its political subdivisions, which program is as effective as the standards contained in an approved plan."

In evaluating how a State plan meets the elements of this requirement, the Assistant Secretary, therefore, must prescribe requirements for "effective and comprehensive" occupational safety and health programs for State and local government employees.

There are three broad areas which the State must consider: coverage, standards, and enforcement.

a. Coverage. Section 18(c)(6) requires a State to cover all State and political subdivision employees "to the extent permitted by its law." On this qualification, the legislative history indicates that Congress had in mind, among other factors, State constitutional limitations on State jurisdiction over local government employees. A State is obligated, for plan approval, to provide a program for all State and local government employees to the full extent it is

OSHA Instruction STP 2-1.9 October 30, 1978

legally able to do so. State action to reduce or remove such legal authority in order to avoid responsibilities under Section 18(c)(6) would be a sound basis for disapproval of a plan.

It is possible that State law can permit coverage, prohibit coverage, or be silent on the subject. It is also possible to find differing combinations of legal authority, for average, especially in the area of political subdivisions. State law may also place limitations on the type of program which a State can implement at the political subdivision level.

It is the State Attorney General who must give his opinion as to the extent to which State law gives legal authority for a public employee program. In such cases, general executive authority of the Governor of the State to provide for the working conditions of public employees, both State and local, might be available to implement an occupational safety and health program for such employees. States should thoroughly examine this possibility before reaching their legal conclusion with regard to the "extent permitted by its law." The Assistant Secretary will review State interpretations of coverage, both under Section 18(c) and for purposes of defining Federal coverage (See Sec. 3(5).

Even where a State is clearly not permitted to cover political subdivision employees, the State could negotiate an agreement with the political subdivision, under which the political subdivision provides a program meeting the, requirements for the State public employee program. (The situation is analogous to that described in OSHA Program Directive #72-2 on "State Plans as Affected by Political Subdivision Jurisdiction Over Safety and Health Regulations in the Private Sector.")

b. Standards. The concepts embodied in the indices for effectiveness of standards contained in part 1902 for private employee programs would be applicable to public employee programs. Procedures for variances, tolerances, and exemptions applicable to private employee standards would be part of the "effective" test, as well as provision for staged development to reach the required level of effectiveness. The scope of standards coverage for public employees

OSHA Instruction STP 2-1.9 October 30, 1978

must be as broad as that for private industry under the plan (the same number of issues must be covered).

However, it is possible that certain public occupations may risk hazard exposures which are unique to that occupation and thus would not be provided adequate protection by the application of existing standard. In these types of occupations the State is encouraged to develop standards tailored to the particular hazard involved, and enforced only as to that particular hazard. Where such special public employee standards are developed, they will not necessarily have any comparable measure of effectiveness other than by analogy to the overall effectiveness of standards applicable to private industry.

c. Enforcement. Legislative history and background of Section 18(c)(6) indicate that Congress did not contemplate that the system of enforcement mechanisms applicable to private employees under a State plan should be applied in the same way to public employers, as a requirement for an effective public employee program. Under present circumstances, it is in the discretion of an individual State, therefore, whether or not its public employee program provides, or continues to provide, for such means of enforcement of safe and healthful working conditions for public employees as are used for private industry.

Even without such provisions, however, it is the Assistant Secretary's position that certain minimum enforcement procedures are required to ensure an "effective and comprehensive" Occupational safety and health program which is as effective as the standards contained in an approved plan." The following concepts, derived from the indices of enforcement effectiveness of 29 CFR 1902, have been determined to be essential to the effectiveness of a State public employee program. It should be noted that, in addressing these concepts in an effective manner, the State may develop approaches which differ greatly from those which it uses in its private industry program. For instance, the designated agency might choose to develop self-inspection programs with State level agencies, rather than doing the inspection itself. This is to be expected since the nature of the situation is also quite different (i.e. public employees as opposed to private).

OSHA Instruction STP 2-1.9 October 30, 1978 -4-

The items which must be addressed in a public employee program are:

Subject Concept (From State Plan Regulations)

(1) Inspections and Complaints Regular inspections of workplaces,

including inspections in response to valid complaints.

(2) Participation by employees A means for employees to bring

possible violations to the attention of inspectors.

(3) Notice of complaints Notification to employees when

no violations are found in a complaint response inspection.

(4) Information to employees Information for employees about

their protection and responsibilities under the program.

(5) Protection against retaliation Protection for employees against

employer retaliation for exercising their rights under the program.

(6) Toxic material exposure Information for employees about

their exposure to toxic materials, especially Men exposures are above levels specified by standards.

(7) Imminent danger Procedures for prompt restraint

or elimination of imminent danger situations.

(8) Notice of Violation A means of notifying employers

and employees when an alleged violation has been found.

(9) Correction of Violation A means of establishing time-

tables for correction of violations, and for notifying employers and employees about them.

OSHA Instruction STP 2-1.9 October 30, 1978

(10) Voluntary Compliance A program for encouraging

voluntary compliance

3. Action. The Regional Offices should explain these requirements to State designees.

4. Filing. This directive should be retained until further notice.

Chain Robbins Deputy Assistant Secretary/Administrator

DISTRIBUTION:

National Office 1 A/Sec. 3 Dep. A/Sec 1 Spec. Assts 1 Directors 3 SOL 20 BLS 1 Review Commission 6 HEW 1

FIELD:

Regional Administrators 3 RAO 2 ARA's 1 Regional Directors 1 SOL Regional Attorneys 2 Regional Review Commissions 1 Training Institute 1 NACOSH Subcommittee (1)

(Originator OS)