Michaels Directive Details Steps for Handling Fatality Investigations at VPP Employers

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By Bruce Rolfsen  


Fatalities or catastrophic accidents at Voluntary Protection Program sites will now trigger inquiries that could lead to a VPP site's termination from the safety program, according to a directive released June 4 by the Occupational Safety and Health Administration.

The May 29 memorandum from David Michaels, the assistant secretary of labor for occupational safety and health, laid out steps OSHA regional offices must follow if they learn of a fatality at a VPP site, including the death of a contractor. The final decision on ending a company's participation rests with the assistant secretary.

Issuing a directive for dealing with fatalities at VPP sites was among the recommendations made in November 2011 by a panel of OSHA staff members assigned by Michaels to review VPP (42 OSHR 755, 8/23/12).

The program had been criticized in 2009 by the Government Accountability Office for allowing participants with fatalities to stay in the program (39 OSHR 699, 8/20/09).

To become a VPP member, employers must apply to state or federal OSHA offices, then undergo an on-site evaluation, implement effective safety and health programs, and maintain injury and illness rates below national averages for their industries. In exchange, VPP members are exempt from OSHA programmed inspections. As of the end of March, 2,333 establishments were participating in VPP, OSHA statistics show.

Termination Steps

According to Michaels's directive, OSHA must follow several steps when it learns of a fatality or catastrophic event that injures three or more workers whose treatment requires at least overnight treatment in a hospital:

• The regional office will notify OSHA headquarters about the incident and keep the headquarters up to date on the progress of the inquiry.

• If the incident results in an inspection, the VPP participant will be placed on “inactive” status pending the outcome of the inspection. While on “inactive” status, the VPP participant will not be able to display the VPP flag, plaque, or certificates. In addition, workers at the company who have “special government employee” (SGE) status to advise other companies about VPP may not act in that capacity.

• Should the investigation find that a death is work-related or is connected with a citation for a willful violation, or if the employer is placed in the Severe Violator Enforcement Program, the OSHA regional office will issue a “notice of intent to terminate” within 10 days after the actions were taken.

• Once the notice is issued, previously existing OSHA policies in the VPP Policies and Procedures Manual (CSP-03-01-003) apply that give the employer 30 days to appeal the termination recommendation to the OSHA assistant secretary.

• If the inspection results in a serious violation, a repeat violation, a failure-to-abate violation, or an other-than-serious violation, or no citation, the regional office has 90 days to make a recommendation to OSHA headquarters on what should be done. Following a briefing on the incident, the assistant secretary will decide if the employer will stays in VPP. If the decision is to end VPP membership, the employer can appeal to the assistant secretary.


VPP Member Concerns

Davis Layne, senior advisor to the Voluntary Protection Programs Participants' Association, told BNA June 5 that Michaels notified the association of the directive June 4 at a meeting of the association's board of directors.

“This came as a surprise to us. … We would have liked to have had the opportunity to point out some of our areas of concern.”

Layne said the association had two primary issues with the directive.

While an OSHA administrator has 10 days to issue a termination notice once a citation is presented to the employer, the employer has 15 days after receiving the citation to request a meeting with OSHA officials, during which the citations could be reduced to a level that would not trigger termination procedures, Layne pointed out. That discrepancy could lead to an employer facing termination even though the qualifying violation was dropped.

Also, Layne said, members questioned the fairness of preventing SGE-qualified workers from continuing their volunteer work while the company is on inactive status. That penalizes SGE members prior to OSHA making a final decision on citations.

Michaels's directive is available at http://www.osha.gov/dcsp/vpp/policy_memo7.html.

A flowchart illustrating directive procedures is available at http://www.osha.gov/dcsp/vpp/policy_memo7_flowchart.pdf.

The VPP manual is available at http://www.osha.gov/OshDoc/Directive_pdf/CSP_03-01-003.pdf.