August 13, 2020
OSHA Jurisdiction Over Public Schools and Other State and
Local Government Entities

As states and their public school systems consider how to
LEAs. OSHA estimates that state plans cover
provide education to students during the ongoing
approximately 40% of workers in the United States.
Coronavirus Disease 2019 (COVID-19) pandemic, they
must consider the safety and health of their students and the
State plans may incorporate OSHA standards by reference,
potential occupational exposure of their teachers and other
or establish their own standards that meet the “at least as
employees, including support staff and transportation
effective” test required for OSHA approval. OSHA can
providers, to the SARS-CoV-2 virus, the virus that causes
terminate state plans that fail to remain at least as effective
COVID-19. In 24 states and the District of Columbia, local
as the federal system.
educational agencies (LEAs), such as public school
districts, and other state and local government entities are
Table 1. OSHA-Approved State Plans
not subject to federal regulation, inspection, or enforcement
by the Occupational Safety and Health Administration
Covers State
(OSHA) or state regulation under the Occupational Safety
and Local
and Health Act of 1970 (OSH Act). LEAs in these states
Government
may be covered by OSHA-approved state occupational
Covers All Employers
Employers Only
safety and health plans (state plans) or other state laws.
Alaska
New Mexico
Connecticut
OSH Act Jurisdiction Over State and
Arizona
North Carolina
Il inois
Local Government Employers
California
Oregon
Maine
Section 3(5) of the OSH Act (29 U.S.C. §652(5)) defines an
employer for the purposes of federal jurisdiction of OSHA
Hawaii
South Carolina
New Jersey
as follows:
Indiana
Tennessee
New York
The term “employer” means a person engaged in a
Iowa
Utah
U.S. Virgin Islands
business affecting commerce who has employees,
Kentucky
Vermont

but does not include … any State or political
subdivision of a State.
Maryland
Virginia

Therefore, state and local government entities, including
Michigan
Washington

LEAs, are not considered employers under the OSH Act
Minnesota
Wyoming

and thus are not subject to OSHA’s federal regulation,
inspection, or enforcement. However, they may be covered
Nevada
Puerto Rico

by OSHA-approved state plans. Private schools are
Source: Congressional Research Service (CRS) table with data from
considered employers under the act and are subject to
the Occupational Safety and Health Administration (OSHA).
federal OSHA jurisdiction, as are some charter schools,
depending on their administrative structure and governance.
States that do not have OSHA-approved state plans may
OSHA State Plans
have their own occupational safety and health laws that
cover some or all state and local government entities,
Section 18 of the OSH Act (29 U.S.C. §667) authorizes
including LEAs. However, these laws are not required to be
states to establish their own state plans and preempt federal
at least as effective as OSHA standards or enforcement, are
OSHA standards and enforcement. OSHA must approve
not in any way regulated by OSHA or the federal
state plans if they are “at least as effective” as OSHA’s
government, and are not eligible for OSHA grants.
standards and enforcement. In addition, state plans must
provide coverage for state and local government entities as
Rationale
employers. OSHA may provide matching grants to states to
The exemption for state and local government entities was
cover up to one-half of their state plan operating costs.
part of the original 1970 OSH Act. At the time, numerous
states had their own occupational safety and health laws,
Currently, 21 states and Puerto Rico have OSHA-approved
and there was concern in Congress about having the federal
state plans that cover all employers in the state, including
government usurp these state authorities. Concerns about
state and local government entities, and five states and the
the OSH Act’s lack of federal jurisdiction over state and
U.S. Virgin Islands have state plans that cover only state
local government employers were addressed by the Section
and local and local government employers, including
18 provisions requiring states with state plans to cover such
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities
employers and the use of federal grants as an incentive for
 PPE requirements, including employer-provided PPE.
states to establish their own plans and thus cover state and
local government employers.
Virginia
On July 15, 2020, the Virginia Safety and Health Codes
OSHA and COVID-19
Board adopted an ETS under Virginia’s state plan (VOSH)
OSHA does not currently have any standards that directly
to specifically protect employees from exposure to SARS-
address the airborne transmission of diseases such as
CoV-2. As an ETS, the VOSH standard expires either
COVID-19. However, OSHA does have existing standards
within six months of its effective date, upon expiration of
that cover personal protective equipment (PPE), sanitation,
the governor’s state of emergency, when superseded by a
and the recording and reporting of occupational injuries,
permanent standard, or when repealed by the board,
illnesses, and deaths, which may be applicable to COVID-
whichever comes first. The ETS can be extended only
19. Legislation, including a provision in H.R. 6800, the
through the normal state rulemaking process.
Heroes Act as passed by the House, has been introduced in
the 116th Congress that would require OSHA to promulgate
Unlike the Cal/OSHA ATD standard, the VOSH ETS
an emergency temporary standard (ETS) to cover COVID-
applies to all employers in the state. As part of a state plan,
19. Under H.R. 6800, state plans would have to adopt the
the VOSH ETS applies to state and local government
ETS or a comparable standard, and state and local
entities, such as public schools, as employers. All
government employers not covered by a state plan would be
employers in Virginia must comply with the following ETS
covered by the COVID-19 ETS.
requirements:
The “general duty clause” provided in Section 5(a)(1) of the
 exposure assessment and determination, notification of
OSH Act (29 U.S.C. §654(a)(1)) requires that each covered
suspected cases and contacts with those cases, and
employer provide a workplace that is “free from recognized
employee access to their own exposure and medical
hazards that are causing or are likely to cause death or
records;
serious physical harm” to its employees. OSHA has also
issued guidance on preventing COVID-19 in a variety of
 allowance for employees to return to work after known
workplace settings. OSHA has not, however, issued any
or suspected to have COVID-19 based on a duration of
specific guidance on preventing COVID-19 in schools.
time since last symptoms or negative COVID-19 tests;
Two states, California and Virginia, have state standards as
 maintenance of physical distancing between employees
part of their OSHA-approved state plans that directly
while working and on paid breaks at the worksite,
address COVID-19.
including restricted access to the worksite and common
areas and break rooms;
California
The California Division of Occupational Safety and Health
 compliance with applicable existing PPE and respiratory
(Cal/OSHA), under its state plan, promulgated its aerosol
protection standards when physical distancing between
transmissible disease (ATD) standard in 2009. The ATD
employees and others is not possible; and
standard covers most healthcare workers, including school
nurses, and workers in laboratories, correctional facilities,
 sanitation and disinfection requirements.
homeless shelters, and drug treatment programs. Pursuant
to Appendix A of the ATD standard and an announcement
If engineering, administrative, or work practice controls are
made in February 2020 by Cal/OSHA, SARS-CoV-2, as a
not feasible or do not provide sufficient protection from
novel pathogen, is classified as a disease or pathogen
SARS-CoV-2 transmission, then all employers must
requiring airborne isolation. This classification subjects the
provide PPE, including respiratory PPE such as respirators,
virus to stricter control standards than diseases requiring
to their employees.
only droplet precautions, such as seasonal influenza. The
ATD standard’s key requirements include
Legislation to Cover State and Local
Employers
 written ATD exposure control plan and procedures;
In the 116th Congress, H.R. 1074, the Protecting America’s
Workers Act, would amend the Occupational Safety and
 employee training on COVID-19 exposure, use of PPE,
Health Act to cover state and local government entities as
and procedures if exposed to COVID-19;
employers. Similar legislation was introduced in previous
Congresses.
 engineering and work practice controls to address
COVID-19 exposure, including the use of airborne
For Additional Information
isolation rooms;
CRS Report R46288, Occupational Safety and Health
Administration (OSHA): Emergency Temporary Standards

 employee availability to medical services and removal
(ETS) and COVID-19, by Scott D. Szymendera.
from workplace of exposed employees;

Scott D. Szymendera, Analyst in Disability Policy
specific requirements for laboratory workers; and
IF11619
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities


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