Updated November 30, 2020
OSHA Jurisdiction Over Public Schools and Other State and
Local Government Entities
As states and their public school systems consider how to
estimates that state plans cover approximately 40% of
provide education to students during the ongoing
workers in the United States.
Coronavirus Disease 2019 (COVID-19) pandemic, they
face the safety and health of their students and the potential
State plans may incorporate OSHA standards by reference
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
employer for the purposes of federal jurisdiction of OSHA
Hawai
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,
but does not include … any State or political
Kentucky
Vermont
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. They may be covered by
Nevada
Puerto Rico
OSHA-approved state plans. Private schools are considered
States that do not have OSHA-approved state plans may
employers under the act and are subject to federal OSHA
have their own occupational safety and health laws that
jurisdiction, as are some charter schools, depending on their
cover some or all state and local government entities,
administrative structure and governance.
including LEAs. However, these laws are not required to be
OSHA State Plans
at least as effective as OSHA standards or enforcement, are
not in any way regulated by OSHA or the federal
Section 18 of the OSH Act (29 U.S.C. §667) authorizes
government, and are not eligible for OSHA grants.
states to establish their own state plans and preempt federal
OSHA standards and enforcement. OSHA must approve
Rationale
state plans if they are “at least as effective” as OSHA’s
The exemption for state and local government entities was
standards and enforcement. In addition, state plans must
part of the original 1970 OSH Act. At the time, numerous
provide coverage for state and local government entities as
states had their own occupational safety and health laws,
employers. OSHA may provide matching grants to states to
and there was concern in Congress about having the federal
cover up to one-half of their state plan operating costs.
government usurp these state authorities. Concerns about
the OSH Act’s lack of federal jurisdiction over state and
Currently, 21 states and Puerto Rico have OSHA-approved
local government employers were addressed by the Section
state plans that cover all employers in the state, including
18 provisions requiring states with state plans to cover such
state and local government entities. Five states and the U.S.
employers and the use of federal grants as an incentive for
Virgin Islands have state plans that cover only state and
states to establish their own plans and thus cover state and
local government employers, including LEAs. OSHA
local government employers.
https://crsreports.congress.gov
OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities
OSHA and COVID-19
CoV-2. As an ETS, the VOSH standard expires either
OSHA does not currently have any standards that directly
within six months of its effective date, upon expiration of
address the airborne transmission of diseases such as
the governor’s state of emergency, when superseded by a
COVID-19. However, OSHA does have existing standards
permanent standard, or when repealed by the board,
that cover personal protective equipment; sanitation; and
whichever comes first. The ETS can be extended only
the recording and reporting of occupational injuries,
through the normal state rulemaking process.
illnesses, and deaths, which may be applicable to COVID-
19. Legislation—including a provision in H.R. 6800, the
Unlike the Cal/OSHA ATD standard, the VOSH ETS
Heroes Act, and H.R. 925, the revised Heroes Act, as
applies to all covered employers in Virginia, regardless of
passed by the House—has been introduced in the 116th
industry. As part of a state plan, the VOSH ETS applies to
Congress that would require OSHA to promulgate an
state and local government entities, such as public schools,
emergency temporary standard (ETS) to cover COVID-19.
as employers.
Under H.R. 6800 and H.R. 925, state plans would have to
adopt the ETS or a comparable standard, and state and local
Michigan
government employers not covered by a state plan would be
On October 14, 2020, the director of the Michigan
covered by the COVID-19 ETS.
Department of Labor and Economic Opportunity, which
operates Michigan’s state occupational safety and health
The “general duty clause” provided in Section 5(a)(1) of the
plan, promulgated emergency rules to address workplace
OSH Act (29 U.S.C. §654(a)(1)) requires that each covered
exposure to COVID-19. Like the Cal/OSHA and VOSH
employer provide a workplace that is “free from recognized
ETS, the Michigan emergency rules apply to all covered
hazards that are causing or are likely to cause death or
employers in the state, including state and local government
serious physical harm” to its employees. OSHA has also
entities such as LEAs. These rules went into immediate
issued guidance on preventing COVID-19 in a variety of
effect and will remain in effect for six months. In addition
workplace settings. OSHA has not issued any specific
to rules that apply to all covered employers, the emergency
guidance on preventing COVID-19 in schools.
rules include specific provisions that apply to the following
industries:
State Plan Actions to Address COVID-19
Two states, California and Virginia, have state standards as
Construction
Manufacturing
part of their OSHA-approved state plans that directly
address COVID-19. Michigan has promulgated emergency
Retail, libraries, and
Restaurants and
rules under its state plan that directly address COVID-19.
museums
bars
California
Health care
In-home services
The California Division of Occupational Safety and Health
such as house
(Cal/OSHA), under its state plan, promulgated its aerosol
cleaning and repair
transmissible disease (ATD) standard in 2009. The ATD
Personal care
Public
standard covers most health care workers, including school
services such as
accommodations
nurses, and workers in laboratories, correctional facilities,
hair styling and
such as sports and
homeless shelters, and drug treatment programs. Pursuant
tattooing
entertainment
to Appendix A of the ATD standard and an announcement
venues
made in February 2020 by Cal/OSHA, SARS-CoV-2, as a
novel pathogen, is classified as a disease or pathogen
Meat and poultry
Sports and exercise
requiring airborne isolation. This classification subjects the
processing
facilities
virus to stricter control standards than diseases requiring
Casinos
only droplet precautions, such as seasonal influenza.
Legislation to Cover State and Local
Cal/OSHA has also promulgated an ETS to address
Employers
COVID-19 in the workplace. Unlike the ATD standard, this
ETS applies to all covered workplaces. The ETS requires
In the 116th Congress, H.R. 1074, the Protecting America’s
all employers to develop and implement written COVID-19
Workers Act, would amend the OSH Act to cover state and
prevention plans that include provisions for physical
local government entities as employers. Similar legislation
distancing, face coverings, and the removal (without
was introduced in previous Congresses.
penalty to the worker) of employees with COVID-19 or
who were exposed to COVID-19. Additional requirements,
For Additional Information
including the testing of all employees at regular intervals ,
CRS Report R46288, Occupational Safety and Health
apply when a worksite has multiple cases of COVID-19.
Administration (OSHA): Emergency Temporary Standards
The Cal/OSHA ETS also includes provisions that apply to
(ETS) and COVID-19, by Scott D. Szymendera.
housing and transportation provided by the employer.
CRS Report R46540, COVID-19 Liability: Tort, Workplace
Virginia
Safety, and Securities Law, by Kevin M. Lewis et al.
On July 15, 2020, the Virginia Safety and Health Codes
Board adopted an ETS under Virginia’s state plan (VOSH)
Scott D. Szymendera, Analyst in Disability Policy
to specifically protect employees from exposure to SARS-
IF11619
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities
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https://crsreports.congress.gov | IF11619 · VERSION 5 · UPDATED