By | Michael G. Swansburg, Jr.
Last month, Kentucky Governor Andy Beshear appointed twelve individuals to serve as new members of the Kentucky Occupational Safety and Health (“OSH”) Standards Board, an administrative body attached to the Labor Cabinet. So with the re-constitution of the Standards Board by the new Administration, what does this mean for Kentucky employers and workers? The truth is that it depends on the new Administration’s position on government regulation generally.
By way of background, Kentucky is a “State Plan” state under the federal Occupational Safety and Health Act, which means the U.S. Department of Labor has agreed to allow Kentucky, via the Labor Cabinet, to enforce OSH law within the state’s borders. But Kentucky does not have carte blanche to do as it pleases under this arrangement; it must maintain OSH laws and regulations in a manner that is “as effective as” federal standards.
Enter the Standards Board. Kentucky law invests in the Standards Board the near-exclusive power to adopt and promulgate OSH rules, regulations, and standards. The only exception to this rule occurs when Kentucky is forced to enact a regulation to be “as effective as” a federal counterpart within a prescribed period of time, usually six months after it becomes final at the federal level. In that case, the Secretary of the Labor Cabinet may adopt the regulation without the Standards Board’s approval.
As evidenced through the Labor Cabinet’s website, the Standards Board met only 11 times in the 10 years before former Governor Matt Bevin abolished it by Executive Order in 2018. And the minutes of those meetings reveals that, although the Standards Board considered no fewer than 41 changes to Kentucky’s OSH scheme, only three of those changes—or seven percent—could be seen as “state-specific,” while the remaining 38 reflected the Standard Board’s incorporation of a federal mandate.
That said, there’s a new Governor in Frankfort, and this one has made clear his intention to revive and empanel the Standards Board. The real question for employers and workers in Kentucky is this: Which Standards Board will show up? Will it be a “2.0 version” of the Standards Board that took little initiative prior to 2018, or will it be a new Standards Board that feels empowered by the new Governor’s support to forge ahead with novel OSH regulations and standards? It remains to be seen, of course, but both sides of the employer-employee relationship should brace for the potential for change in Kentucky’s OSH rules, regulations, and standards during the next four years.