HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: HB 5B Florida Occupational Safety and Health State Plan
SPONSOR(S): Zika and others
TIED BILLS: IDEN./SIM. BILLS: SB 6-B
FINAL HOUSE FLOOR ACTION: 76 Y’s 38 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
HB 5B passed the House on November 17, 2021, and subsequently passed the Senate on the same date.
The federal Occupational Safety and Health Act of 1970 (OSH Act) established the Occupational Safety and
Health Administration (OSHA) within the United States Department of Labor (DOL) and granted OSHA the
authority to promulgate, modify, or revoke occupational safety and health standards that apply to private
employers, federal agencies, and the United States Postal Service. The OSH Act requires employers to
provide a safe workplace that does not present serious hazards and to follow all OSHA safety and health
standards.
At the time that the OSH Act was passed, Congress recognized that some states already operated their own
effective occupational safety and health programs. Therefore, the OSH Act provided the option for states to run
“their own OSHA program” (state plan) with OSHA approval. OSHA requires state plans to include standards
at least as effective as the federal OSHA standards. State plans must also cover state and local government
employees, in addition to private employees. The OSH Act contains various criteria which, if met, require that
OSHA approve a state plan.
The bill establishes that it would be in the state’s best interest to explore the development of a state plan for
Florida by finding that a state plan would enhance occupational safety and health by implementing practices
and standards that reduce the incidence of employee accidents, occupational diseases, and fatalities. It also
finds that a state plan would provide the state with the flexibility to meet the unique needs of its business es and
workforce.
The bill directs the Executive Office of the Governor (EOG) to develop a proposal for a state plan (proposal) to
assert jurisdiction over occupational safety and health issues for government and private employees and to
designate or hire appropriate staff to develop the proposal. The bill directs the Divisions of Risk Management
and Workers’ Compensation within the Department of Financial Services, the Department of Health, and the
Department of Business and Professional Regulation, upon the EOG’s request, to assist with the proposal. The
bill requires the EOG to provide a status report to the President of the Senate and the Speaker of the House of
Representatives by January 17, 2022, which contains at least the following:
A timeline for completion of the proposal and the state plan, including establishment of an agency to
oversee the state plan, legislation necessary to implement the state plan, and the scope of coverage
with respect to employees covered under, and excluded from, the state plan.
An explanation of whether the EOG needs to hire additional employees, consultants, or contractors to
assist with the development of the proposal and the state plan and whether appropriation of additional
funds is required to meet this need.
For the 2021-2022 fiscal year, the bill appropriates the nonrecurring sum of $1 million to the EOG from the
General Revenue Fund to implement the bill. The bill has no impact on state government revenues, local
government revenues or expenditures, or a direct economic impact on the private sector.
The bill was approved by the Governor on November 18, 2021, ch. 2021-274, L.O.F., and became effective on
that date.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
Federal Occupational Safety and Health Administration
The impetus for the passage of the federal Occupational Safety and Health Act of 1970 (OSH Act) was
public outcry against deteriorating workplace safety conditions in the United States. In the 1960s,
occupational injuries and illnesses increased in frequency and severity. 1 Disabling injuries increased 20
percent during that decade, and 14,000 workers died on the job each year. 2 In the 25 years prior to the
passage of the OSH Act, more than 400,000 workers in the United States were killed by work-related
accidents and diseases, and almost 50 million additional workers experienced disabling workplace
injuries.3
The OSH Act established the Occupational Safety and Health Administration (OSHA) within the United
States Department of Labor (DOL) and granted OSHA the authority to promulgate, modify, or revoke
occupational safety and health standards that apply to private employers, federal agencies, and the
United States Postal Service.4
OSHA has specific protections relating to potential hazards and other issues, including falls,5 hazard
communication,6 respiratory protection,7 harmful chemicals,8 ladders and scaffolding,9 dangerous
machines,10 dangers of working in confined spaces,11 hazardous energy control,12 and eye and face
protection.13
If no specific rule applies, an employer is subject to the general duty clause of the OSH Act, which
requires an employer to protect its workers from all serious recognized hazards, and allows OSHA to
immediately recognize and respond to previously unknown dangers. 14 While OSHA monitors high-risk
industries more closely, its regulations apply to almost all industries.
OSHA has the authority to enforce employer compliance with its standards and with the general duty
clause through the issuance of abatement orders, citations, and civil monetary penalties. The OSH Act
does not cover state or local government agencies or units.
Workers’ Rights under the OSH Act
A worker employed by an employer falling under OSHA’s jurisdiction has the right to:
Work under safe conditions that do not pose a serious threat to the worker’s health and safety;
Notify the employer about workplace hazards without fear of retaliation or discrimination;
1 OSHA’s 30th Anniversary, https://www.osha.gov/aboutosha/30-years (last visited Nov. 4, 2021).
2 Id.
3 Id.
4 Occupational Safety and Health Act of 1970 (OSH Act), (29 USC §651 et seq.; 29 CFR Parts 1900 to 2400),
https://www.osha.gov/laws -regs/oshact/completeoshact (last visited Nov. 4, 2021).
5 OSH Act at 29 CFR 1926.501 and 29 CFR 1926.503.
6 OSH Act at 29 CFR 1910.1200.
7 OSH Act at 29 CFR 1910.134.
8 OSH Act at 29 CFR 1910.101 to 1910.106.
9 OSH Act at 29 CFR 1926.1053 and 29 CFR 1926.451.
10 OSH Act at 29 CFR 1910.212.
11 OSH Act at 29 CFR 1910.146.
12 OSH Act at 29 CFR 1910.147.
13 OSH Act at 29 CFR 1926.102.
14 OSH Act, supra, note 12.
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File a safety and health complaint with OSHA confidentially;
Receive information and training about hazards, methods to prevent harm, and the OSHA
standards that apply to his or her workplace that is performed in a language and vocabulary that
the worker understands;
Review records of work-related injuries and illnesses that occur in the workplace;
Receive copies of the results from tests and monitoring done to find and measure hazards in the
workplace;
Get copies of his or her own workplace medical records;
Participate in an OSHA inspection and speak in private with the inspector;
File a complaint with OSHA if the worker has been retaliated against by his or her employer as
the result of requesting an inspection or exercising any of his or her other rights under the OSH
Act;
File a complaint if retaliated against for acting as a “whistleblower”; and
Refuse hazardous work if:
Where possible, the worker asked the employer to eliminate the danger, and the
employer failed to do so;
The worker refused to work in “good faith”;15
A reasonable person would agree that there is a real danger of death or serious injury;
and
Due to the urgency of the hazard, there is not sufficient time to get the hazard corrected
through regular enforcement channels, such as requesting an OSHA inspection. 16
Employers’ Responsibilities under the OSH Act
The OSH Act requires employers to provide a safe workplace that does not present serious hazards
and to follow all OSHA safety and health standards.17 The Act further requires employers to try to
eliminate or reduce hazards first by making feasible changes in working conditions such as switching to
safer chemicals or enclosing processes to trap harmful fumes rather than merely relying on pers onal
protective equipment such as masks, gloves, or earplugs. 18
Employers must also:
Prominently display an official OSHA poster that describes rights and responsibilities under the
OSH Act;
Inform workers about hazards through training, labels, alarms, color-coded systems, chemical
information sheets, and other methods;
Train workers in a language and vocabulary they can understand;
Keep accurate records of work-related injuries and illnesses;
Perform tests in the workplace, such as air sampling, required by some OSHA standards;
Provide hearing exams or other medical tests required by OSHA standards;
Post injury and illness data and OSHA citations in a location visible to workers;
Notify OSHA within 8 hours of a workplace fatality;
Notify OSHA within 24 hours of any work-related inpatient hospitalization, amputation or loss of
an eye; and
15 Refusal to work in “good faith” means the worker must genuinely believe that an imminent danger exists. Occupational Safety and
Health Administration, Workers’ Right to Refuse Dangerous Work, https://www.osha.gov/workers/right-to-refuse (last visited Nov. 3,
2021).
16 Occupational Safety and Health Administration, Workers’ Rights,
https://www.osha.gov/sites/default/files/publications/osha3021.pdf (last visited Nov. 3, 2021); Occupational Safety and Health
Administration, Workers’ Right to Refuse Dangerous Work, https://www.osha.gov/workers/right-to-refuse (last visited Nov. 3, 2021).
17 Occupational Safety and Health Administration, Workers’ Rights,
https://www.osha.gov/sites/default/files/publications/osha3021.pdf (last visited Nov. 3, 2021)
18 Id.
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Not retaliate against workers for exercising their rights under the law, including their right to
report a work-related injury or illness.19
OSHA Worksite Inspections
OSHA conducts on-site, telephonic, and facsimile inspections of worksites to enforce the OSH Act
provisions that protects workers and their rights. Trained compliance officers conduct worksite
inspections based on the following priorities:
Imminent danger;
A fatality or hospitalization;
Worker complaints and referrals;
Targeted inspections related to particular hazards with high injury rates; and
Follow-up inspections.20
OSHA initiates inspections without advance notice, regardless of whether the inspection is in response
to a complaint or is a programmed inspection.21
In the 30 years since OSHA's establishment, workplace fatalities have declined by 60 percent, and
occupational injury and illness rates have declined by 40 percent. During that same period, U.S.
employment has nearly doubled from 56 million workers at 3.5 million worksites to 105 million workers
at nearly 6.9 million worksites.22
OSHA Injury and Illness Recordkeeping and Reporting
With the exception of certain low-risk industries,23 OSHA requires many employers with over 10
employees to keep a record of serious work-related injuries and illnesses.24 Minor injuries requiring first
aid only do not need to be recorded.25 Recording of injuries and illnesses aids in the evaluation of
workplace safety, understanding industry standards, and implementing protections. 26 On a yearly basis,
employers must post a summary of recordable injuries and illnesses in a place where it typically posts
notices to employees.27
State Plans
At the time that the OSH Act was passed, Congress recognized that some states already operated their
own effective occupational safety and health programs. 28 Therefore, the OSH Act provided the option
for states to run “their own OSHA program” (state plan) with OSHA approval.29 States that choose to
operate a state plan can receive up to 50 percent of the funding necessary to run their plans from
19 Id.
20 Id.
21 Id.
22 OSHA’s 30th Anniversary, supra, note 9.
23 See United States Department of Labor, OSHA, Non-Mandatory Appendix A to Subpart B—Partially Exempt Industries,
https://www.osha.gov/recordkeeping/presentations/exempttable (last visited Nov. 4, 2021).
24 United States Department of Labor, OSHA, OSHA Injury and Illness Recordkeeping and Reporting Requirements,
https://www.osha.gov/recordkeeping (last visited Nov. 8, 2021).
25 Id.
26 Id.
27 29 C.F.R. §1904 (2016).
28 OSHA’s 30th Anniversary, supra, note 9.
29 Id. See 29 U.S.C. § 667.
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OSHA once OSHA preliminarily approves the plans.30 OSHA requires state plans to include standards
at least as effective as the federal OSHA standards.31 State plans must also cover state and local
government employees with their plans, in addition to private employees. 32
The OSH Act contains various criteria which, if met, require that OSHA approve a state plan. 33 In
addition to having standards that are at least as effective as the federal standards, the criteria include,
but are not limited to:
Designating a state agency to administer the state plan;
Providing a right of entry and inspection of all workplaces that are subject to the state plan;
Containing assurances in the state plan that the state agency administering the plan will have
the necessary authority and personnel to enforce the plan; and
Continuing to make reports to the federal Secretary of Labor while under the state plan.34
OSHA approved the first state plans for South Carolina, Montana, and Oregon in 1972. 35 Today, 21
states plus Puerto Rico operate their own state plans that cover private employees and government
employees.36 An additional five states and the United States Virgin Islands operate plans that cover
only government employees.37 OSHA estimates that 40 percent of workers in the United States are
covered by state plans.38
California’s state plan (CA plan) exceeds federal standards in some areas. For example, the CA plan
contains a standard designed to protect workers against heat illness, while the federal standards do not
address heat-related illnesses.39 In contrast, OSHA rejected an Arizona standard regarding
construction fall protection that it deemed “not as effective as the federal standard.”40
Any state or United States territory may submit a state plan for approval by OSHA. 41 The first step in
the approval process is to submit a developmental plan to OSHA, which must contain state legislation,
regulations and procedures for establishing occupational safety and health standards, enforcement
systems, appeals processes, and sufficient staffing to implement the state plan. 42 A developmental plan
must also demonstrate that within three years the state will have the necessary infrastructure to be
effective.43
Once a state has submitted a developmental state plan, the state plan is eligible for certification, but the
certification process does not confer any judgment on the effectiveness of the plan. 44 When OSHA
determines that a state meets the statutory state plan requirements, OSHA and the state may enter into
an Operational Status Agreement (Agreement) that outlines which employers will be under state or
federal jurisdiction for occupational safety and health issues.45 A plan may operate indefinitely under an
30 OSHA’s 30th Anniversary, supra, note 9.
31 Id.
32 Id.
33 29 U.S.C. § 667.
34 Id.
35 OSHA’s 30th Anniversary, supra, note 9.
36 United States Department of Labor, OSHA, State Plans, https://www.osha.gov/stateplans/ (last visited Nov. 8, 2021).
37 Id.
38 Congressional Research Service (CRS), OSHA State Plans: In Brief, with Examples from California and Arizona,
https://crsreports.congress.gov/product/pdf/R/R43969, (last visited Nov. 8, 2021).
39 Id.
40 Id.
41 The DOL maintains an OSHA instruction manual of approximately 170 pages, which is designed to provide “OSHA offices and
State Plans with the policies and procedures for establishing, monitoring, supporting, and withdrawing State Plans.” OSHA
Instruction, https://www.osha.gov/sites/default/files/enforcement/directives/CSP_01-00-005.pdf (last visited Nov. 8, 2021).
42 CRS, supra, note 52.
43 Id.
44 Id.
45 Id.
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