Public sector employers of all sizes have been asking whether they must comply with OSHA’s recent Emergency Temporary Standard (“ETS”). The short in Pennsylvania is no – the ETS does not apply to state and local government employers in those states, such as Pennsylvania, that do not have State Plans (that is, an OSHA-approved plan by which a state assumes responsibility for occupational health and safety standards).
By way of background, the ETS requires employers with 100 or more employees to impose mandatory COVID-19 vaccination policies, or require unvaccinated employees to submit a weekly negative COVID-19 test.
State and local governments are generally exempt from OSHA coverage because they fall outside the definition of “employer” set forth in the Occupational Safety and Health Act.
The OSH Act does draw a distinction, however, between those entities that are clearly an arm of state government – such as an executive branch agency – and those entities that have features of both a public and private organization and may be more difficult to classify. Generally, an entity is a state or political subdivision outside of OSHA’s purview if it was created directly by a state or if it is administered by individuals controlled by public officials or responsible to those officials or the public.
OSHA’s regulations describe three categories of public and quasi-public agencies along a spectrum of entities that may constitute a “State or political subdivision” and thus not an employer under the OSH Act.
The first category includes those entities that normally fall outside the definition of employer. These are entities like a state’s executive agencies; state, county, and municipal law enforcement agencies and penal institutions; or state, county, and municipal public school boards and commission. By contrast, on the other end of the spectrum are those entities that would normally not be exempt from OSHA. These are groups like public utility companies that are merely regulated by the state, or businesses that might either be licensed by the state or have contracts with the state. These groups normally would be employers as defined by OSHA.
In the middle are those organizations that OSHA says probably would be exempt from the OSH Act. These are the quasi-public entities that may have some combination of public and private financing, administration, or revenue-generation. Evaluating whether these entities are exempt from OSHA’s coverage is done on a case-by-case basis, considering a variety of factors.
In Pennsylvania, where there is not an OSHA-approved State Plan to implement workplace safety standards, state and local government employers are not subject to OSHA’s coverage. Therefore, the ETS does not apply to these public employers, even if they have 100 or more employees. The question of OSHA’s coverage may change for public employers in other states, and for entities whose origin or administration is not entirely public.
For questions about whether OSHA’s ETS might apply to your organization, contact any member of the McNees Public Finance & Government Services or Labor & Employment practice groups.