TALLAHASSEE, Fla. (Nov. 20, 2021) – On Thursday, Gov. Ron DeSantis signed a bill into law that takes the first step toward withdrawing the state from the federal Occupational Safety and Health Administration (OSHA), setting the stage to implement a “state plan” in its place.
Rep. Ardian Zika (R-Land O’Lakes) filed House Bill 5 (HB5-B) and Sen. Travis Hutson (R-St. Augustine) filed the companion Senate Bill 6 (SB6-B). Stating that it is “the intent of the Legislature to provide for the establishment of the Florida Occupational Safety and Health State Plan,” the new law requires the office of Gov. DeSantis to “develop a proposal for a state plan to assert state jurisdiction over occupational safety and health issues for government and private employees.”
It also appropriates $1 million to the Executive Office of the Governor from the General Revenue Fund for the purpose of implementing the act, and gives the Office until Jan. 17, 2022 to submit a status report to leadership of the legislature that includes, at a minimum:
1. Timelines for the completion of the proposal and for the completion of the state plan, including the establishment of an agency to oversee the state plan, legislation necessary to implement the state plan, and the scope of coverage with respect to employees covered under, and excluded from, the state plan.
2. An explanation of whether additional employees, consultants, or contractors need to be hired to assist with the development of the proposal and the state plan and whether additional funds need to be appropriated for that purpose.
“If OSHA, the Department of Labor and OSHA, is going to be weaponized as a way to hold hostage businesses throughout the state of Florida, no problem. We want a different plan,” said House Speaker Chris Sprowls (R-Palm Harbor). “We want out of OSHA. We’ll submit our own regulatory authority and say goodbye to the federal government.”
Under OSHA regulations, implementation and enforcement can be done on either a state or a federal level, and should Florida successfully withdraw from the federal program, it would join 22 other states that are currently on a “state plan.”
Once a state plan is formulated, it’s then sent to the federal government, which must give it approval before OSHA withdraws its own resources. Some experts have suggested that the process could take multiple years. Additionally, when the state submits its plans to OSHA for approval, it must make sure it follows the policies and procedures outlined by OSHA, and must be able to conform to the necessary criteria within three years of its start date.
And even once a state plan is approved, OSHA monitors those plans and requires them to be at least as strict as OSHA’s guidelines and regulations. According to OSHA, the agency “monitors and evaluates State Plans annually through the Federal Annual Monitoring Evaluation (FAME) process. This process is used to: determine whether the State Plan is continuing to operate at least as effectively as OSHA, track a State Plan’s progress in achieving its strategic and annual performance goals, and ensure that the State Plan is meeting its mandated responsibilities under the Act and other relevant regulations.” [emphasis added]
With just under 800 inspectors working for OSHA, and another 1200 administering the remaining state plans, federal officials have repeatedly noted that it would take the agency approximately 160 years to inspect every business under its jurisdiction just one time.
With that achilles heel in mind, sources close to the Tenth Amendment Center have indicated that multiple states are likely to consider legislation to not just set up a state plan, but ban the state from participating in the enforcement of the new mandates, relying on the fact that the person power and resources available on the federal level will make those mandates nearly impossible to enforce should there be widespread resistance on a business and individual level.