OSHA Jurisdiction Over Public Schools and Other State and Local Government Entities




Updated November 16, 2020
OSHA Jurisdiction Over Public Schools and Other State and
Local Government Entities

As states and their public school systems consider how to
OSHA estimates that state plans cover approximately 40%
provide education to students during the ongoing
of 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
Source: Congressional Research Service (CRS) table with data from
employers under the act and are subject to federal OSHA
the Occupational Safety and Health Administration (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
states to establish their own state plans and preempt federal
including LEAs. However, these laws are not required to be
OSHA standards and enforcement. OSHA must approve
at least as effective as OSHA standards or enforcement, are
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
Currently, 21 states and Puerto Rico have OSHA-approved
states had their own occupational safety and health laws,
state plans that cover all employers in the state, including
and there was concern in Congress about having the federal
government usurp these state authorities. Concerns about
state and local government entities. Five states and the U.S.
the OSH Act’s lack of federal jurisdiction over state and
Virgin Islands have state plans that cover only state and
local and local government employers
, including LEAs.
local government employers were addressed by the Section
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
permanent standard, or when repealed by the board,
states to establish their own plans and thus cover state and
whichever comes first. The ETS can be extended only
local government employers.
through the normal state rulemaking process.
OSHA and COVID-19
Unlike the Cal/OSHA ATD standard, the VOSH ETS
OSHA does not currently have any standards that directly
applies to all covered employers in Virginia, regardless of
address the airborne transmission of diseases such as
industry. As part of a state plan, the VOSH ETS applies to
COVID-19. However, OSHA does have existing standards
state and local government entities, such as public schools,
that cover personal protective equipment; sanitation; and
as employers.
the recording and reporting of occupational injuries,
illnesses, and deaths, which may be applicable to COVID-
Michigan
19. Legislation—including a provision in H.R. 6800, the
On October 14, 2020, the director of the Michigan
Heroes Act, and H.R. 925, the revised Heroes Act, as
Department of Labor and Economic Opportunity, which
passed by the House—has been introduced in the 116th
operates Michigan’s state occupational safety and health
Congress that would require OSHA to promulgate an
plan, promulgated emergency rules to address workplace
emergency temporary standard (ETS) to cover COVID-19.
exposure to COVID-19. Like the VOSH ETS, the Michigan
Under H.R. 6800 and H.R. 925, state plans would have to
emergency rules apply to all covered employers in the state,
adopt the ETS or a comparable standard, and state and local
including state and local government entities such as LEAs.
government employers not covered by a state plan would be
These rules went into immediate effect and will remain in
covered by the COVID-19 ETS.
effect for six months. In addition to rules that apply to all
covered employers, the emergency rules include specific
The “general duty clause” provided in Section 5(a)(1) of the
provisions that apply to the following industries:
OSH Act (29 U.S.C. §654(a)(1)) requires that each covered
employer provide a workplace that is “free from recognized
 Construction;
hazards that are causing or are likely to cause death or
 Manufacturing;
serious physical harm” to its employees. OSHA has also
issued guidance on preventing COVID-19 in a variety of
 Retail, libraries, and museums;
workplace settings. OSHA has not issued any specific
 Restaurants and bars;
guidance on preventing COVID-19 in schools.
 Health care;
State Plan Actions to Address COVID-19
 In-home services such as house cleaning
Two states, California and Virginia, have state standards as
and repair;
part of their OSHA-approved state plans that directly
address COVID-19. Michigan has promulgated emergency
 Personal care services such as hair styling
rules under its state plan that directly address COVID-19.
and tattooing;
 Public accommodations such as sports
For specific information on the California and Virginia state
and entertainment venues;
standards and the Michigan emergency rules, see CRS
Report R46288, Occupational Safety and Health
 Sports and exercise facilities;
Administration (OSHA): Emergency Temporary Standards
 Meat and poultry processing; and
(ETS) and COVID-19, by Scott D. Szymendera.
 Casinos.
California
The California Division of Occupational Safety and Health
Legislation to Cover State and Local
(Cal/OSHA), under its state plan, promulgated its aerosol
Employers
transmissible disease (ATD) standard in 2009. The ATD
In the 116th Congress, H.R. 1074, the Protecting America’s
standard covers most health care workers, including school
Workers Act, would amend the OSH Act to cover state and
nurses, and workers in laboratories, correctional facilities,
local government entities as employers. Similar legislation
homeless shelters, and drug treatment programs. Pursuant
was introduced in previous Congresses.
to Appendix A of the ATD standard and an announcement
made in February 2020 by Cal/OSHA, SARS-CoV-2, as a
For Additional Information
novel pathogen, is classified as a disease or pathogen
CRS Report R46288, Occupational Safety and Health
requiring airborne isolation. This classification subjects the
Administration (OSHA): Emergency Temporary Standards
virus to stricter control standards than diseases requiring
(ETS) and COVID-19, by Scott D. Szymendera.
only droplet precautions, such as seasonal influenza.
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-
CoV-2. As an ETS, the VOSH standard expires either
IF11619
within six months of its effective date, upon expiration of
the governor’s state of emergency, when superseded by a
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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 3 · UPDATED