“The Occupational Safety and Health Act of 1970 is repealed. The Occupational Safety and Health Administration is abolished.” — the complete text of Section 2 of H.R. 86, introduced by Rep. Andy Biggs (R-AZ)
I’m not really sure what Andy Biggs hoped to accomplish by introducing his “Nullify Occupational Safety and Health Administration Act” (NOSHA Act) on January 3, 2025, the very first day of the first session of the 119th Congress. It’s not the first time he has filed such a bill. In 2021, angry about OSHA’s response to the Covid-19 pandemic, Mr. Biggs filed a similar bill. Then, it had nine co-sponsors. Still, it did not make it out of committee. This time, there are no co-sponsors. Experts are generally confident that the bill is not going anywhere, but in volatile and uncertain times like these, stranger things are happening.
Perhaps this is a good moment to remind ourselves, despite how much we may fear and loath OSHA, of how much we need OSHA.
Why Was OSHA Established?
It’s important to remember that the Occupational Safety and Health Act (OSH Act) was signed into law by President Richard M. Nixon, a Republican, in 1970, in the midst of the Vietnam War. The total number of casualties from the Vietnam War was 58,228 Americans killed and 153,452 Americans wounded. In the U.S. workplace, just in 1970, there were over 14,000 work-related fatalities, 2½ million disabling injuries, and 300,000 new cases of occupational diseases. It was more dangerous to go to work than it was to go to war, and even a conservative Republican president recognized that something needed to be done. (Yes, there was a Democratic majority in both the House and in the Senate, but not enough to override a veto from Nixon.) The work-related fatality rate in 1970 was about 20 fatalities per 100,000 workers.
Since the Occupational Safety and Health Administration went to work, they have driven down the rate at which Americans die doing their job. By 1992, it was down to 5.2 fatalities per 100,000 workers, and by 2009, it was down to 3.5 fatalities per 100,000 full-time equivalents. Unfortunately, it has remained stagnant since then, staying in the range of 3.3 to 3.7 fatalities per 100,000 workers for the last fifteen years.
It was OSHA, its regulations, and its enforcement of those regulations that drove down the work-related fatality rate for almost four decades. It was OSHA, its regulations, and its enforcement of those regulations that has kept the work-related fatality rate down for the last 1½ decades. While it appears that we may have reached the limit of what OSHA can accomplish with regulations, that does not mean that we will be able to maintain a work-related fatality rate that is no worse than what we’ve been experiencing without OSHA.
What About State Plans?
The OSH Act does have a provision for states and U.S. territories to establish “state plans”. These plans require approval by OSHA, which among other things, must protect state and local government workers, whom OSHA is prohibited from protecting. There are currently 22 OSHA-approved state plans that cover all eligible workers (including the plan for Puerto Rico) and another seven OSHA-approved state plans that only protect state and local government workers (including the plan for the U.S. Virgin Islands). In those seven jurisdictions, OSHA still has responsibility for protecting workers at private employers.
Another requirement for OSHA-approval of a state plan is that it must provide worker protection “at least as effective” as the protection provided by OSHA. This means that the state OSHA regulations must be as strong as OSHA regulations, and the enforcement must be as rigorous as that of OSHA. In the case of CAL OSHA, regulations are often much stronger and the enforcement much more rigorous.
OSHA approval is not a trivial exercise. The State of Nevada achieved initial approval in 1974, but OSHA did not give final approval until 2000. The State of Hawaii won final approval of its state plan in 1984, but in 2012, OSHA intervened by assuming some enforcement duties, largely because Hawaii was suffering staffing shortages and inadequate budgets limitations. Eventually, OSHA returned control to the State of Hawaii.
The most recent state plan to come under OSHA scrutiny was for Arizona, Andy Biggs’ home state. In 2022, OSHA proposed to revoke Arizona’s state plan, “in response to the Arizona State Plan’s nearly decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as those used [by OSHA].”
A Patchwork
What most state plans have in common is that each state enforces regulations developed by OSHA. Most states do not have the resources of California and so do not have the wherewithal to independently develop their own regulations. Instead, even jurisdictions with state plans rely on OSHA to develop the regulations that they are enforcing.
Without OSHA, we could expect that state OSHA regulations would become a patchwork, varying widely from one state to the next, much like worker’s compensation is today. Safety professionals with operations in more than one state would find that keeping their workers safe and complying with regulations would become exponentially more complicated. Unlike worker’s compensation, though, which only comes to bear when a worker has been injured or killed, safety standards require constant attention.
No, it is much better to have a single set of standards to master and with which to comply.
Babies and Bathwater
It appears that there are two efforts by OSHA that have particularly incensed Mr. Biggs. In 2021, it was OSHA’s use of the emergency regulatory powers granted by the OSH Act to address the hazard of Covid-19 in the workplace. At the same time that Mr. Biggs was trying to get OSHA abolished, the National Federation of Independent Business sued to have the emergency Covid-19 regulations stayed. Ultimately, the Supreme Court granted that stay. It didn’t require abolishing OSHA to stop a controversial regulation.
In 2025, it is OSHA’s efforts to address heat-related illness and fatalities in the workplace that has upset Mr. Biggs. The number of heat-related deaths reached “new highs in 2021 and 2022”, so it should come as no surprise that OSHA is concerned about preventing heat-related illness and fatalities in the workplace. Mr. Biggs seems to believe that Arizona, because of its hot climate, has been unfairly singled out and so wants to abolish OSHA.
The important thing to remember is that if Congress doesn’t like a regulation, it has the power to rescind it. Under the Congressional Review Act, Congress not only can repeal a regulation, but it can prohibit the agency from issuing another rule that is substantially the same until Congress explicitly grants permission to do so. In November 2000, OSHA promulgated 29 CFR 1910.900, the Ergonomics Program Standard. Never heard of it? That’s because Congress passed Senate Joint Resolution 6, which President George W. Bush signed on March 20, 2001, rescinding the regulation.
If OSHA has promulgated a bad regulation, there are ways to deal with the bad regulation short of abolishing OSHA. We need OSHA. To cite a bit of common wisdom, let’s not throw out the baby with the bathwater.
Yes, Write a Letter to Your Representative and Senator
I don’t know if Mr. Biggs’ bill is a stunt or a sincere effort to abolish OSHA. But we all benefit from the improved safety that comes from well-enforced OSHA regulations. We also benefit from the clarity of a well-defined regulatory environment. Abolishing OSHA will not improve any of this. There is a lot going on right now, but this idea – this bad idea – deserves a letter to your representative and your senator. Let’s nip this bad idea in the bud.
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