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OSHA Responds To National COSH Complaint; Says Industrial Commission Of Arizona “Operating Outside Its Legal Authority” On Workplace Safety

Responding to a complaint filed by the National Council for Occupational Safety and Health (National COSH), the U.S. Occupational Safety and Health Administration has determined that that the Industrial Commission of Arizona (ICA) is “operating outside its legal authority.”

T. Zachary Barnett, Phoenix area director for OSHA, has recommended that the ICA “must cease” its practice of “reclassifying” penalties for workplace violations suggested by the Arizona Department of Occupational Safety and Health (ADOSH).

At issue is the ICA practice- unique in all 50 states- of pre-reviewing fines for workplace safety violations proposed by ADOSH. ICA meetings are a one-sided forum where employers can argue they should pay lower fines and be subject to a less severe class of violations for exposing workers to hazardous working conditions.

“When you reduce fines and downgrade violations again and again, you” re sending a message that workers’ lives are not valued,” said Peter Dooley, Tucson-based project safety consultant for National COSH and principal at Labor Safe, which provides safety training to workers, unions and employers. “That’s not right for Arizona. As OSHA has determined, allowing appointed commissioners to reduce fines and classifications before they are even issued is a violation of federal law.”  

On December 13 2016, Dooley filed a formal “Complaint Against State Plan Administration “or CASPA, with U.S. OSHA. Arizona is one of 26 states in which state authorities administer and enforce federal safety laws, with a requirement that such programs be “at least as effective” as those run by U.S. OSHA.  

In a story published on December 17th, the Arizona Star found that in the first 11 months of 2016, ICA commissioners “voted to reduce ADOSH’s proposed penalties in more than half the cases they reviewed.” According to the AFL-CIO, the Star reported, typical fines for workplace safety violations in Arizona “are about forty percent lower than the national average.” When a worker is killed on the job in Arizona, the average fine is $2,759- or seventy percent lower than the national average.

After receiving Dooley’s complaint and reviewing ADOSH and ICA policies and practices- including findings published in the Arizona Star — Phoenix-area OSHA Director Barnett stated that “[b]ased on Arizona state law… the ICA has been operating outside of its legal authority by reclassifying violations.”

Barnett recommended that ICA “must cease altering the reclassification of ADOSH’s violations.”

“If the state of Arizona wants to continue to enforce workplace safety laws through a state agency, they need to be at least as rigorous as U.S. OSHA,” said Dooley. “That includes giving workers and unions a voice in any public proceeding about safety violations- not giving employers a special forum to argue for lenient treatment.”

OSHA Area Director Barnett’s letter to Peter Dooley, reporting his recommendations to the Industrial Commission of Arizona, is available on the National COSH website here.