OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues

OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues

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Updated September 13, 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
to comply with the OSHA ETS on COVID-19 vaccination
provide education to students during the ongoing
if it becomes effective. OSHA may provide matching grants
Coronavirus Disease 2019 (COVID-19) pandemic, they
to states to cover up to one-half of their state plan operating
face concerns about the safety and health of their students
costs.
and the potential occupational exposure of their teachers
and other employees, including support staff and
Currently, 21 states and Puerto Rico have OSHA-approved
transportation providers, to the SARS-CoV-2 virus, the
state plans that cover all employers in the state, including
virus that causes COVID-19. Local educational agencies
state and local government entities. Five states and the U.S.
(LEAs), such as public school districts, and other state and
Virgin Islands have state plans that cover only state and
local government entities are not subject to federal
local government employers, including LEAs. OSHA
regulation, inspection, or enforcement by the Occupational
estimates that state plans cover approximately 40% of
Safety and Health Administration (OSHA). However, in 26
workers in the United States.
states and two territories (listed in Table 1), LEAs are
covered by OSHA-approved state plans as discussed below. State plans may incorporate OSHA standards by reference
or establish their own standards that meet the “at least as
On September 9, 2021, President Joe Biden announced that
effective” test required for OSHA approval. OSHA can
OSHA is developing an emergency temporary standard
terminate state plans that fail to remain at least as effective
(ETS) that would obligate employers with more than 100
as the federal system.
employees to require their employees to be vaccinated
against COVID-19 or be tested weekly for COVID-19. This
Table 1. OSHA-Approved State Plans
ETS would not apply to public schools, except in those
states with OSHA-approved state plans as described later in
Covers State
this In Focus and listed in Table 1.
and Local
Government
OSH Act Jurisdiction over State and
Covers All Employers
Employers Only
Local Government Employers
Alaska
New Mexico
Connecticut
Section 3(5) of the OSH Act (29 U.S.C. §652(5)) defines
employer for the purposes of federal jurisdiction of OSHA
Arizona
North Carolina
Il inois
as follows:
California
Oregon
Maine
The term “employer” means a person engaged in a
Hawai
South Carolina
New Jersey
business affecting commerce who has employees,
Indiana
Tennessee
New York
but does not include … any State or political
subdivision of a State.
Iowa
Utah
U.S. Virgin Islands
Therefore, state and local government entities, including
Kentucky
Vermont

LEAs, are not considered employers under the OSH Act
Maryland
Virginia

and thus are not subject to OSHA’s federal regulation,
inspection, or enforcement. They may be covered by
Michigan
Washington

OSHA-approved state plans. Private schools are considered
employers under the act and are subject to federal OSHA
Minnesota
Wyoming

jurisdiction, as are some charter schools, depending on their
Nevada
Puerto Rico

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
employers. Thus, state and local government entities in
states with state plans, including LEAs, would be required
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues
Rationale
Virginia
The exemption for state and local government entities was
On July 15, 2020, the Virginia Safety and Health Codes
part of the original 1970 OSH Act. At the time, numerous
Board adopted an ETS under Virginia’s state plan (VOSH)
states had their own occupational safety and health laws,
to specifically protect employees from exposure to SARS-
and there was concern in Congress about having the federal
CoV-2. This ETS was superseded by a permanent standard
government usurp these state authorities. Concerns about
that went into effect on January 27, 2021.
the OSH Act’s lack of federal jurisdiction over state and
local government employers were addressed by the Section
Unlike the Cal/OSHA ATD standard, the VOSH permanent
18 provisions requiring states with state plans to cover such
standard applies to all covered employers in Virginia,
employers and the use of federal grants as an incentive for
regardless of industry. As part of a state plan, the VOSH
states to establish their own plans and thus cover state and
permanent standard applies to state and local government
local government employers.
entities, such as public schools, as employers.
OSHA and COVID-19
Michigan
While OSHA does not currently have any permanent
On October 14, 2020, the director of the Michigan
standards that directly address the airborne transmission of
Department of Labor and Economic Opportunity, which
diseases such as COVID-19, on June 21, 2021, OSHA
operates Michigan’s state occupational safety and health
promulgated an ETS for the prevention of the transmission
plan, promulgated emergency rules to address workplace
of SARS-CoV-2 in health care employment settings.
exposure to COVID-19. The Michigan emergency rules
apply to all covered employers in the state, including state
In addition, OSHA has existing standards that cover
and local government entities such as LEAs. These rules
personal protective equipment; sanitation; and the recording
were amended, effective May 24, 2021, based on updated
and reporting of occupational injuries, illnesses, and deaths,
CDC guidance, and the amended rules are to remain in
which may be applicable to COVID-19.
effect through October 14, 2021. In addition to rules that
apply to all covered employers, the emergency rules include
General Duty Clause
provisions that apply to certain specific industries.
The “general duty clause” provided in Section 5(a)(1) of the
OSH Act (29 U.S.C. §654(a)(1)) requires that each covered
Oregon
employer provide a workplace that is “free from recognized
On November 6, 2020, the Oregon Department of
hazards that are causing or are likely to cause death or
Consumer and Business Services, which operates Oregon’s
serious physical harm” to its employees. OSHA and the
state plan (Oregon OSHA), adopted temporary
Centers for Disease Control and Prevention (CDC) have
administrative rules that expired on May 4, 2021, to
also issued guidance on preventing COVID-19 in a variety
specifically address COVID-19 exposures in the workplace.
of workplace settings, including schools.
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. These rules were made permanent
The California Division of Occupational Safety and Health
effective May 4, 2021.
(Cal/OSHA), under its state plan, promulgated its aerosol
transmissible disease (ATD) standard in 2009. The ATD
Legislation to Cover State and Local
standard covers most health care workers, including school
Employers
nurses, and workers in laboratories, correctional facilities,
In the 116th Congress, H.R. 1074, the Protecting America’s
homeless shelters, and drug treatment programs. Pursuant
Workers Act, would have amended the OSH Act to cover
to Appendix A of the ATD standard and an announcement
state and local government entities as employers. Similar
made in February 2020 by Cal/OSHA, SARS-CoV-2, as a
legislation was introduced in previous Congresses.
novel pathogen, is classified as a disease or pathogen
requiring airborne isolation. This classification subjects the
For Additional Information
virus to stricter control standards than diseases requiring
CRS Report R46288, Occupational Safety and Health
only droplet precautions, such as seasonal influenza.
Administration (OSHA): Emergency Temporary Standards
(ETS) and COVID-19, by Scott D. Szymendera.
Cal/OSHA has also promulgated an ETS to address
COVID-19 in the workplace. Unlike the ATD standard, this
Occupational Safety and Health Administration (OSHA),
ETS applies to all covered workplaces. The ETS requires
Protecting Workers: Guidance on Mitigating and
all employers to develop and implement written COVID-19
Preventing the Spread of COVID-19 in the Workplace,
prevention plans that include provisions for physical
https://www.osha.gov/coronavirus/safework.
distancing, face coverings, and the removal (without
penalty to the worker) of employees with COVID-19 or
Scott D. Szymendera, Analyst in Disability Policy
who were exposed to COVID-19. Additional requirements,
including the testing of all employees at regular intervals ,
IF11619
apply when a worksite has multiple cases of COVID-19.
The Cal/OSHA ETS also includes provisions that apply to
housing and transportation provided by the employer.
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OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities: COVID-19 Issues

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