Florida Roofing Magazine - February 2022

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FRSA GENERAL COUNSEL Trent Cotney, CEO, Cotney Attorneys & Consultants

Should Florida Move to a State-Run OSHA Plan? Over the last few months, with the increase in vaccine mandates and the OSHA Emergency Temporary Standard for COVID-19, many elected officials, including Governor Ron DeSantis, have suggested forming a Florida State OSHA plan rather than the current federal OSHA framework that governs the state. This suggestion raises many critical issues for consideration that will be discussed in this article. First and foremost, FRSA and its members have always been concerned about employee safety. All roofing contractors are aware of the emotional and financial impact of a work-related injury on their company. However, one of the biggest concerns for roofing contractors is the expansion of federal government regulation and enforcement through OSHA, especially as it relates to COVID-19 protocols. Over the last twenty years, OSHA has changed drastically. The number of citations, the dollar amounts of those citations, the increase in safety standards with residential fall protection and the targeting of roofing contractors have all increased exponentially. As a result, roofing contractors who are already seeing smaller profit margins are faced with business-ending citations. I am asked almost daily what can we do as a roofing industry in Florida to change things? Obviously, safety and enforcing safety are of paramount concern. However, many would argue that OSHA currently lacks local accountability because OSHA is a federally-based program. Section 18 of the Occupational Safety and Health Act of 1970 provides that states can develop and operate their own safety and health programs in the workplace, which allows those states to opt-out of federal OSHA enforcement. There are currently 22 states operating complete state plans, including California, Washington, Michigan and Oregon, and five other states with safety plans that cover public employees. For Florida to establish itself as a state-sponsored program, there is a set process and procedure for assuming OSHA’s responsibilities. The state must have effective safety guidelines and enforce and inspect them pursuant to set OSHA benchmarks. Once the accreditation of the state plan is obtained through OSHA’s final approval, OSHA will relinquish its authority to cover health and safety matters in the state. Generally speaking, any state plan must be at least as stringent as the guidelines established 6

FLORIDA ROOFING | February 2022

federally. Therefore, the idea that a Florida State OSHA Plan could eliminate burdensome federal OSHA regulations is misguided. For example, the Unified Agenda of Federal Regulatory and Deregulatory Actions shows OSHA’s intent to decertify Arizona’s State Plan and it is in the proposed rule stage of that process. The reason for the proposed decertification is Arizona’s alleged failure to conform to COVID-19 standards and reluctance in adopting the new silica rule. If the decertification passes, Arizona will revert to a federal OSHA plan. Should Florida move to a state plan? Ultimately, a move to a state plan could be both a blessing and a curse for roofing contractors, depending on who is in the Governor’s office. Still, the one certainty is that there will be greater accountability because the elected officials responsible for maintaining and implementing the plan will be in Florida and not Washington. As additional regulations are promulgated, we should anticipate further discussion on this issue in the months to come. FRM Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Trent Cotney is Board Certified in Construction Law by the Florida Bar, an advocate for the roofing industry and FRSA General Counsel. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.