Criticism of Arizona’s arbitrary reduction in workplace safety penalties

Federal OSHA is assessing whether Arizona’s Division of Occupational Safety and Health (ADOSH) is meeting its obligation as an approved State OSHA program. The federal government’s scrutiny was prompted by a formal complaint, as well as investigative reporting by Emily Bregel and Tony Rich of the Arizona Daily Star. Both noted that the Industrial Commission of Arizona (ICA) routinely discounts the findings of ADOSH’s safety inspectors. The ICA’s decisions result in the severity classification of violations being downgraded (e.g., from serious to non-serious) and reduction in proposed monetary penalties.

The ICA reviews all ADOSH proposed penalties that exceed $2,500. The Arizona Daily Star’s investigation found the ICA voted to reduce ADOSH’s recommended penalties more than half of the time. Peter Dooley with the National Council for Occupational Safety and Health explained to the Star’s Emily Bregel one of several concerns about the ICA’s involvement in reviewing ADOSH’s findings:

Commissioners are “so far removed from what’s happening at that workplace….[it] seems like a process fraught with problems.”

Dooley, who lives in Tuscon, AZ, formally expressed his concern about the ICA to federal OSHA which has oversight authority of ADOSH.  Dooley filed a complaint with OSHA which asserted that the ICA reclassifies violations and reduces penalties without following any approved criteria.

OSHA looked into Dooley’s complaint and agreed. In a written response to Dooley, OSHA’s area director in Phoenix, Zachary Barnett indicated:

“The role of the ICA and the criteria to be used for making penalty adjustments is not defined in the ADOSH field operations manual or in any OSHA approved guidance document.  …ADOSH’s field operations manual contains clear guidance on the calculation of penalties …[but does not] make any mention of the ICA, its role, or additional criteria it can use to reduce penalties.”

“…OSHA finds that the ICA is currently reducing penalties in a seemingly arbitrary manner….This practice reduces the deterrent effect of higher penalties and fails to ensure that employers within the state are treated equally.”

Barnett added:

“…the ICA has been operating outside of its legal authority by reclassifying violations.”

The State of Arizona has 30 days to respond to OSHA’s findings.

Several years ago, federal OSHA rejected Arizona’s standard concerning fall protection for workers at residential construction projects. It determined the State’s program was not meeting the requirement to be “at least as effective” as federal OSHA’s program. Arizona was enforcing fall protection standards for workers at heights greater than 15 feet, while federal OSHA standard applied to heights greater than 6 feet. In 2015, the State acquiesced and began enforcing the 6 foot standard.