State lawmakers voted Thursday to buckle under to federal rules to protect workers from falls – but only if they're forced to do so.
SB 1307, approved by the House on a voice vote, keeps many of the changes in fall protections that legislators approved in 2012 at the behest of homebuilders. Those laws were laxer than what Arizona's own health and safety regulators had in place.
Last month, however, the U.S. Department of Labor told the state that standards approved by the Legislature in 2012 do not comply with requirements of the federal Occupational Safety and Health Administration.
David Michaels, OSHA's assistant secretary, said if Arizona does not act, then the state would lose its ability to police homebuilders. More to the point, it would require homebuilders to do something they do not want: Abide strictly by federal standards, deal with federal inspectors and be subject to federal fines which are larger than the state imposes.
So SB 1307 backs off – a bit. But Rep. Tom Forese, R-Chandler, said he is unwilling to surrender entirely, insisting Arizona knows better how to protect its workers than the federal government.
But Forese, conceding the risk of the state losing its worker-safety oversight, on Thursday added a fail-safe of sorts: It says if federal OSHA rejects these, too, then the original pre-2012 standards come back automatically.
Forese said that he believes OSHA should butt out.
“I think the government that governs closest governs best,” he said.
“If you were to look at what our expertise is as a state, I would say that homebuilding falls under that category,” Forese continued. “I think the federal government could learn a lot from Arizona on homebuilding.”
OSHA doesn't quite see it that way.
“There are a number of areas where Arizona's residential fall protection standards are less effective than federal OSHA’s,” Michaels wrote in last month's letter to the state's Division of Occupational Safety and Health.
Most notable is the fact that his agency's standards require certain kinds of fall protection for employees working at a height of at least 6 feet, things like nets, harnesses or guardrails. The 2012 law makes those necessary only at 15 feet.
The revision crafted by Forese in consultation with the homebuilders does repeal some of what OSHA does not like. But it does leave that 15-foot standard in place and other provisions OSHA finds unacceptable.
In fact, Michaels said in his letter to state officials he had seen the revisions and said they still do not bring Arizona into compliance.
But Spencer Kamps, lobbyist for the Home Builders Association of Central Arizona, said that is not the last word. He said federal regulations specifically allow states to enact their own different rules if they are “at least as effective” in protecting workers. Kamps said the next move is to convince OSHA these revised Arizona fall-protection standards should be accepted even those they do not use OSHA-prescribed methods.
For example, he said the Arizona regulations require homebuilders to identify fall hazards on their sites between 6 and 15 feet, write them down, take actions to mitigate against hazards and then train their employees to the safety standards. Kamps said he sees these as superior to the fall protection standards above 6 feet mandated by OSHA.
Michaels, however, cited two instances last summer where construction workers suffered two “non-fatal but severe” injuries in falls where there was not proper conventional fall protection.
Forese said the changes in his legislation from the 2012 law, while not putting Arizona into compliance with the federal standards, should be enough to get OSHA to back off. But Rep. Debbie McCune Davis, D-Phoenix, said these standards are not “as effective” as what the federal government wants, putting Arizona at risk of losing control of its worker safety program.
She attempted to amend the measure to restore state law to federal standards, including that 6-foot requirement, but was voted down by the Republican-controlled House.
The measure needs a final House roll-call vote before going to the Senate.