Indices of effectiveness criteria

Yes — a State may either adopt the same Federal standards or establish different (alternative) standards, but if it adopts alternatives it must show they are at least as effective as the Federal program. The State may follow 1902.4(a)(1) by adopting identical standards, or follow 1902.4(a)(2) and demonstrate with factual or other appropriate information that each alternative meets the indices of effectiveness in paragraphs (b) and (c) so the State program is at least as effective as the Federal program.

State standards for toxic materials or harmful physical agents must adequately assure, as far as feasible, that no employee will suffer material impairment of health or functional capacity from regular work-life exposure. The State must develop standards using the best available evidence through research, demonstrations, experiments, and experience, consistent with 1902.4(b)(2)(i).

A State must have an adequate method to ensure its standards continue to be at least as effective as any Federal standards that become effective after plan approval. The plan must include procedures that monitor Federal developments and update or compare State standards to meet the requirement in 1902.4(b)(2)(ii).

A State must provide procedures that consider pertinent factual information and give interested persons — including employees, employers, and the public — an opportunity to participate in standards development. This can include soliciting expert technical input, accepting petitions to develop or change standards, and holding hearings, or simply adopting Federal standards which meet these criteria, as described in 1902.4(b)(2)(iii).

A State plan must provide authority to grant variances from State standards on employer application and must consider the views of interested parties, including giving affected employees notice and an opportunity to request and participate in hearings related to variance applications. See 1902.4(b)(2)(iv).

A State should have authority to take prompt and effective standards-setting actions for new or unforeseen hazards, including authority to promulgate emergency temporary standards when necessary to protect employees, consistent with 1902.4(b)(2)(v).

State standards should require employers to give employees information about workplace hazards, suitable precautions, symptoms, and emergency treatment — by means such as labeling, posting, and where appropriate, free medical examinations with confidentiality safeguards — as described in 1902.4(b)(2)(vi).

State standards should, where appropriate, include specific provisions for protecting employees from exposure — for example, requiring suitable protective equipment, engineering or administrative controls, and monitoring or measuring exposures — consistent with 1902.4(b)(2)(vii).

A State plan must provide for inspections of covered workplaces, including inspections in response to complaints or when there are reasonable grounds to believe a hazard exists, to help assure safe and healthful working conditions as described in 1902.4(c)(2)(i).

Employees and their authorized representatives must have the opportunity to accompany the State inspector during physical inspections or, if there is no authorized representative, be consulted by the inspector, as provided in 1902.4(c)(2)(ii).

A State agency must notify the employee or their representative in writing of the decision not to take compliance action, explain the reasons, and provide procedures for informal review and a written statement of the review's disposition, per 1902.4(c)(2)(iii).

Employees must be informed of their protections and obligations under the Act and applicable standards by means such as conspicuous posting of notices or other appropriate sources of information, consistent with 1902.4(c)(2)(iv). For practical guidance on proper poster display (not covered or hidden), see OSHA’s interpretation on poster display requirements at https://www.osha.gov/laws-regs/standardinterpretations/2023-06-15.

A State must protect employees from discharge or discrimination for filing complaints, testifying, or otherwise exercising rights under the Act, including providing sanctions against employers and allowing complainants' names to be withheld upon request, as required by 1902.4(c)(2)(v).

Employees must have access to records of monitoring and measuring of toxic materials or harmful agents, be allowed to observe monitoring, and receive prompt notification when exposed above applicable standards, including information on corrective actions being taken; these requirements are in 1902.4(c)(2)(vi). For specifics on employer obligations to notify employees about exposure records and how notice differs from the OSHA poster, see OSHA’s interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2018-07-16.

A State plan must provide procedures for prompt restraint or elimination of conditions that could cause death or serious physical harm immediately or before normal enforcement can abate the danger, including informing employees and employers and taking steps to obtain immediate abatement or legal action when necessary, as described in 1902.4(c)(2)(vii). OSHA’s contest policy also notes the Agency can seek immediate relief for imminent dangers even when a citation is under contest; see https://www.osha.gov/laws-regs/standardinterpretations/2023-09-11.

A State must safeguard trade secrets by limiting access to authorized State officers or employees and issuing appropriate orders to protect confidentiality during enforcement activities, consistent with 1902.4(c)(2)(viii).

State agencies must have necessary legal authority to enforce standards, including compulsory process to obtain evidence or testimony for inspections and enforcement proceedings, as stated in 1902.4(c)(2)(ix).

A State must promptly notify employers and employees when it alleges a violation — including proposed abatement requirements and proposed sanctions — provide effective sanctions comparable to those in the Act and 29 CFR 1903.15(d), and allow employers (and employees or their representatives) the right to administrative or judicial review with opportunity for full hearing, as set out in 1902.4(c)(2)(x), 1902.4(c)(2)(xi), and 1902.4(c)(2)(xii).

A State should run programs to encourage voluntary compliance by employers and employees, such as training courses and consultation services, as required by 1902.4(c)(2)(xiii).

An approved State plan must provide assurances that the State will establish and maintain an effective occupational safety and health program for public (State and political subdivision) employees that is as effective as the approved plan standards, and must cover all public employees over which the State has legislative authority under its constitution, per 1902.4(d)(1) and 1902.4(d)(2)(i).

The State public employee program must include minimum enforcement elements such as regular inspections (including complaint inspections), a means for employees to report violations, notification and informal review when complaints are not acted on, employee information about rights, protection against discrimination, access to exposure information, procedures for imminent danger situations, prompt employer/employee notification when alleged violations occur, timetables for correction, voluntary compliance programs, and any additional enforcement provisions in the State plan per 1902.4(d)(2)(iii)(A)–(K).