Updated February 11, 2021
OSHA Jurisdiction Over Public Schools and Other State and
Local Government Entities: COVID-19 Issues
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.
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues
OSHA and COVID-19
distancing, face coverings, and the removal (without
OSHA does not currently have any standards that directly
penalty to the worker) of employees with COVID-19 or
address the airborne transmission of diseases such as
who were exposed to COVID-19. Additional requirements,
COVID-19. However, OSHA does have existing standards
including the testing of all employees at regular intervals ,
that cover personal protective equipment; sanitation; and
apply when a worksite has multiple cases of COVID-19.
the recording and reporting of occupational injuries,
The Cal/OSHA ETS also includes provisions that apply to
illnesses, and deaths, which may be applicable to COVID-
housing and transportation provided by the employer.
19. Legislation in the 116th Congress—including a
provision in H.R. 6800, the Heroes Act, and H.R. 925, the
Virginia
revised Heroes Act, as passed by the House—would have
On July 15, 2020, the Virginia Safety and Health Codes
required OSHA to promulgate an emergency temporary
Board adopted an ETS under Virginia’s state plan (VOSH)
standard (ETS) to cover COVID-19. Under H.R. 6800 and
to specifically protect employees from exposure to SARS-
H.R. 925, state plans would have had to adopt the ETS or a
CoV-2. This ETS was superseded by a permanent standard
comparable standard, and state and local government
that went into effect on January 27, 2021.
employers not covered by a state plan would have to have
been covered by the COVID-19 ETS.
Unlike the Cal/OSHA ATD standard, the VOSH permanent
standard applies to all covered employers in Virginia,
General Duty Clause
regardless of industry. As part of a state plan, the VOSH
The “general duty clause” provided in Section 5(a)(1) of the
permanent standard applies to state and local government
OSH Act (29 U.S.C. §654(a)(1)) requires that each covered
entities, such as public schools, as employers.
employer provide a workplace that is “free from recognized
hazards that are causing or are likely to cause death or
Michigan
serious physical harm” to its employees. OSHA has also
On October 14, 2020, the director of the Michigan
issued guidance on preventing COVID-19 in a variety of
Department of Labor and Economic Opportunity, which
workplace settings. As of January 14, 2021, OSHA has
operates Michigan’s state occupational safety and health
issued three citations for violations of the general duty
plan, promulgated emergency rules to address workplace
clause related to COVID-19. OSHA has not issued any
exposure to COVID-19. The Michigan emergency rules
specific guidance on preventing COVID-19 in schools.
apply to all covered employers in the state, including state
and local government entities such as LEAs. These rules
Executive Order on Protecting Worker Health and
went into immediate effect and will remain in effect for six
Safety
months. In addition to rules that apply to all covered
On January 21, 2021, President Joe Biden issued an
employers, the emergency rules include provisions that
executive order concerning COVID-19 in the workplace.
apply to certain specific industries.
This executive order requires OSHA to determine the
necessity of a COVID-19 ETS and, if necessary, issue an
Oregon
ETS by March 15, 2021. In addition, the executive order
On November 6, 2020, the Oregon Department of
requires OSHA to coordinate with state plans to ensure that
Consumer and Business Services, which operates Oregon’s
workers covered by such plans are adequately protected
state plan (Oregon OSHA), adopted temporary
from COVID-19, consistent with any OSHA guidance or
administrative rules that expire on May 4, 2021, to
ETS, and consult with states that do not operate state plans
specifically address COVID-19 exposures in the workplace.
to improve protections for state and government employees.
In addition to rules that apply to all employers, the
appendices to the Oregon OSHA rules also include
State Plan Actions to Address COVID-19
mandatory guidance that applies to certain specific
industries and employers including public and private K-12
California
educational institutions.
The California Division of Occupational Safety and Health
(Cal/OSHA), under its state plan, promulgated its aerosol
Legislation to Cover State and Local
transmissible disease (ATD) standard in 2009. The ATD
Employers
standard covers most health care workers, including school
In the 116th Congress, H.R. 1074, the Protecting America’s
nurses, and workers in laboratories, correctional facilities,
Workers Act, would have amended the OSH Act to cover
homeless shelters, and drug treatment programs. Pursuant
state and local government entities as employers. Similar
to Appendix A of the ATD standard and an announcement
legislation was introduced in previous Congresses.
made in February 2020 by Cal/OSHA, SARS-CoV-2, as a
novel pathogen, is classified as a disease or pathogen
For Additional Information
requiring airborne isolation. This classification subjects the
CRS Report R46288, Occupational Safety and Health
virus to stricter control standards than diseases requiring
Administration (OSHA): Emergency Temporary Standards
only droplet precautions, such as seasonal influenza.
(ETS) and COVID-19, by Scott D. Szymendera.
Cal/OSHA has also promulgated an ETS to address
CRS Report R46540, COVID-19 Liability: Tort, Workplace
COVID-19 in the workplace. Unlike the ATD standard, this
Safety, and Securities Law, by Kevin M. Lewis et al.
ETS applies to all covered workplaces. The ETS requires
all employers to develop and implement written COVID-19
Scott D. Szymendera, Analyst in Disability Policy
prevention plans that include provisions for physical
IF11619
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues


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https://crsreports.congress.gov | IF11619 · VERSION 7 · UPDATED

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