Kentucky Amends Occupational Safety and Health Act, Proposes Implementing Regulations

New this summer, and effective June 27, 2025, are significant updates to Kentucky’s Occupational Safety and Health Act, which put Kentucky’s state plan program substantively in line with the U.S. Occupational Safety and Health Administration’s (OSHA) standards. While the effects of the statutory and regulatory changes are yet to be fully seen and felt, here is a breakdown of the legislation and developing changes that impact private employers with a Kentucky presence. 

The Changes

HB 398: Kentucky amended its Safety and Health Act, embodied in Chapter 338, by passing HB 398, which was introduced, passed, and delivered to Governor Andy Beshear in just over a month. The new law alters Kentucky’s Occupational Safety and Health program significantly, bringing it largely in line with federal OSHA requirements. Changes include adoption of a formal limitations period for issuing violations, a new “de minimis” classification for administrative violations, permitting employers to recover costs and fees on appeal, and requiring personal knowledge for reporting violations. These changes were made to Kentucky Revised Statutes (KRS) §§ 338.062, 338.091, 338.111, 338.121, 338.141, and 338.991.

SB 84: By creating new sections of KRS Chapter 446 and KRS Chapter 13A and amending KRS 13B.150, Kentucky SB 84 established a de novo legal standard for judicial review of agency actions. This new law formally aligns Kentucky with the 2024 landmark ruling of Loper Bright Industries v. Raimondo, 603 U.S. 369 (2024), removing the state agency’s entitlement to deference before a reviewing court. These changes were made to KRS §§ 446.084, 13A.247, and 13B.150.

Politics and Passage

Two years after the U.S. Occupational Safety and Health Act was enacted in 1970, Kentucky opted to establish itself as a “state OSHA plan” state, meaning it could promulgate and enforce its own occupational safety and health regulations so long as they were not less stringent than those set by federal regulations. Kentucky is among 28 states operating their own state-level occupational safety and health program.

Although Democratic Governor Andy Beshear vetoed both HB 398 and SB 84 in late March 2025, the Republican-led legislature swiftly overrode both vetoes, and the new laws became effective on June 27, 2025. These adjustments come on the heels of a 2021 Kentucky bill seeking to slowly align Kentucky with federal OSHA regulations, which barred Kentucky from passing any legislation imposing obligations on private sector employers that were more stringent than their federal counterparts.

Reactions 

Opponents of HB 398 claimed that eliminating state-specific standards weakens worker protections. Opponents also expressed concern that Kentucky will be unable to operate its state plan effectively, and that this would risk Kentucky’s state-plan status, which by law, must be at least as effective as the federal law. Supporters of the bill, including the Kentucky Chamber of Commerce, instead described the changes as a “broad-based business issue” that will create predictability for multi-state employers. Kentucky Representative Walker Thomas said his rationale for the legislation was that it would create new economic opportunities through “fair and more transparent rules” for employers. Further, he said it would help align Kentucky’s Occupational Safety and Health Rules with federal standards, support businesses in responding to claims, and improve regulatory compliance for all parties. In the wake of the bills’ enactment, the Education and Labor Cabinet is now updating regulations.

Key Takeaways

Changes enacted by HB 398 and SB 84 include:

• Establishing a “de minimis” classification for administrative violations;
• Establishing a statute of limitations;
• Reducing the lookback period for repeat violations from 5 years to 3 years;
• Enabling employers to recover fees and costs if successful on appeal;
• Requiring personal knowledge of a hazard in order to report an alleged violation;
• Formalizing the tolling of abatement obligations until the conclusion of the administrative action;
• Formally adopting a federal rule allowing non-employee third-party representatives to accompany the compliance officer to help conduct an “effective and thorough” inspection;
• Preventing Kentucky not just from passing legislation or promulgating standards more stringent than federal standards, but also from enforcing standards more stringent than federal standards; and
• Removing entitlement to deference from a reviewing court.

On June 26, 2025, the Kentucky Occupational Safety and Health Standards Board convened to discuss the Kentucky General Assembly session, as well as the Board’s amendment and adoption of regulations consistent with the legislation. Changes to the regulations, currently in effect on an emergency basis, will be considered at public hearings in the coming months. These include:

• Amending 803 KAR 2:181, removing Kentucky’s state-specific definitions and requirements for recordkeeping and reporting occupational injuries and illnesses, aligning with federal requirements;
• Amending 803 KAR 2:310, removing Kentucky’s state-specific definitions and requirements for medical services and first aid, aligning with federal requirements;
• Repealing 803 KAR 2:240 and amending 803 KAR 2:250, requiring discrimination complaints to be filed within 30 days of the alleged discrimination; and
• Promulgating 803 KAR 2:260, clarifying appeals procedure and establishing significantly limiting definitions for employers’ appeals of Review Commission’s decision to Franklin Circuit Court.

Responding to the legislation, Kentucky’s Education and Labor Cabinet has revised its Compliance Field Operations Manual and issued six new Program Instructions. Four of these cancel prior guidance and Program Instructions, while the other two update or provide new guidance to clarify language in federal regulations:

• 01-2025 cancels 02-2022, which provided instruction regarding Kentucky’s first aid guidance, previously required under 803 KAR 2:310;
• 02-2025 cancels 02-2006, which provided instruction regarding Kentucky’s protection of open-sided floors, platforms, and runways, previously under 803 KAR 2:303;
• 03-2025 cancels 01-2006, which provided instruction regarding residential fall protection in Kentucky’s private-sector residential construction, previously required under 803 KAR 2:412, and clarifies that 803 KAR 2:412 still applies to public sector residential construction;
• 04-2025 cancels 01-2004 and its non-mandatory appendix, which provided instruction regarding Kentucky’s emergency eye wash and shower equipment, previously required under 803 KAR 2:310, 803 KAR 2:307, 803 KAR 2:320, 803 KAR 2:320, and 803 KAR 2:320;
• 05-2025 provides guidance for determining “near proximity” to an infirmary, clinic, or hospital as it relates to first aid under 29 CFR 1910.151, adopted by 803 KAR 2:130. Specifically, the Instruction provides a list of factors that a compliance officer “must” consider in determining whether employers are compliant with 29 CFR 1910.151; and
• 06-2025 provides guidance for determining whether “suitable facilities” exist “within the work area” regarding emergency eye wash and shower equipment under 29 CFR 1910.150, adopted by 803 KAR 2:310. The Instruction provides that generally, facilities/equipment complying with ANSI/ISEA Z358.1 will be compliant.

Impact on Employers  

These significant changes will remain unsettled during the coming months while the regulations are finalized.  Employers should consider using this period to consult and strategize with experienced occupational safety and health counsel to examine, review, and update workplace safety training, policies, practices, and procedures to protect the health and safety of employees while remaining compliant. Employers can also use this opportunity to review the emergency and proposed regulations and provide reactions, thoughts, or concerns to counsel or at the public hearings on the regulations. These are scheduled to take place on August 21, 2025 and September 22, 2025. Littler will continue to monitor these ongoing regulatory efforts for any notable developments.