Until last month, Washington State had also neglected to adopt a silica standard. In Washington, the issue appeared to be a matter of priorities. Washington recent- ly adopted its silica standard on March 23, 2018. OSHA’s recourse Theoretically, a failure of a state occupational safety and health plan can allow OSHA to exercise its authority under Section 18(f) of the OSH Act to rescind the state’s occupational safety and health plan and have the federal govern- ment take over enforcement of workplace safety laws and regula- tions. This is considered the “death penalty” option and is a time- consuming and litigious process. But OSHA may take a shot across Maryland’s bow and send the state a “show cause letter” asking why a proceeding to reconsider the state’s final approval status should not be commenced. That is what OSHA did with Arizona in 2014 when the state adopted different fall-protec- tion requirements for residential construction. Impact on employers For employers that work within these five states – and only these five states – there is no silica stan- dard with ancillary requirements such as exposure assessment, medical surveillance, and specific housekeeping measures. These five states still have older airborne con- taminant requirements that cover silica, so employers should still ensure that their employees are protected from levels of respirable crystalline silica above the permis- sible exposure limit. For employers that work in multi- ple states that include one or more of these five states and one or more of the remaining 45 states, the lack of silica standards in these five states can create confusion and complicate compliance efforts. Do you adopt a program where the company “turns off” its silica pro- gram in these five states? While this may ease compliance expenses in the short term, employers may not want to take this approach; crews could get confused and for- get to “turn on” the program when they cross state lines. Such a pro- gram could also worsen employee morale. Employees would likely notice their employers easing up on silica compliance efforts in states where they don’t have to comply. Employers focused on long-term compliance may want to adopt a consistent silica program that treats compliance as applicable in all 50 states. Employees will likely appre- ciate the company’s position, and besides, the current “free ride” on silica offered by Arizona, Hawaii, Maryland, Utah, and Wyoming won’t last forever. In its existence, OSHA has never allowed a state plan to forego adopting a stan- dard the agency deems essential to workplace safety. BUSINESS TIP ––––––––––––––––––––––––––––––––––––––––––––––––––––––– 32 TileLetter | May 2018