OSHA Report Seeks Simplified Oversight, Suspensions During Fatality Investigations

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A long-anticipated report on the Voluntary Protection Program called for the Occupational Safety and Health Administration to streamline its oversight of employers participating in the program and preserve its policy of not subjecting VPP employers to programmed inspections.

The OSHA report also called for VPP members cited for alleged willful violations to be suspended from the program until appeals of the citations are completed and for OSHA to develop a process for suspending VPP members who suffer a fatality or “significant enforcement action” until OSHA's investigation is complete.

OSHA released its report Aug. 20 but had submitted it to OSHA Assistant Secretary David Michaels on Nov. 11, 2011. It was written primarily by a team of OSHA regional and area office supervisors at the request of Michaels.

The agency offered no explanation on why the report was released nine months after it was turned in.

Criticism Prompted Review.

Prompting the internal OSHA review, which began in April 2011, was a report from the Government Accountability Office in 2009 calling for improved oversight of VPP and criticism from Congress (39 OSHR 699, 8/20/09).

The VPP program, in place since 1982, allows businesses to avoid OSHA programmed inspections if the company promises to meet or exceed the agency's safety requirements and to keep records to prove it. As of the end of July, 2,382 employers participated in state or federal VPP programs, almost double the number signed up in 2004, OSHA data showed.

Jordan Barab, deputy assistant secretary for OSHA, issued an Aug. 20 statement welcoming the review's conclusions.

“In general, we agree with most of the findings of the report, and have already or will be implementing a number of substantive changes to the program based on the recommendations included,” he said.

In a separate OSHA statement accompanying the report, the agency said many of the recommendations can be implemented by March 31, 2013, and that a “few will take more time to implement appropriately.”

Dave Heidorn, manager of government affairs for the American Society of Safety Engineers, was among the people interviewed for the report. The society had been concerned the report would advocate changes to VPP that would make it less attractive for employers to participate in, Heidorn told BNA Aug. 23.

The report quelled those concerns.

“It's a well-balanced affirmation of the program,” Heidorn said. “The incentives for why you join are still in place.”

Inspection Exemptions Remains.

Among the report's 34 recommendations, one of the most significant was not to change VPP sites' exemption from OSHA programmed inspections, checks often resulting from when an employer is in an industry targeted by an OSHA inspection emphasis program.

The report said that among the safety and health officials interviewed, company representatives favored keeping the exemption because it is one of the reasons companies joined the program. Union representatives, meanwhile, opposed the exemption.

The OSHA review team concluded the agency could best use its limited resources by inspecting workplaces “that have a higher chance of non-compliance rather than [VPP] sites OSHA has been to in the last three to five years.”

No Merit for 'Merit.'

A potentially more controversial recommendation would be to discontinue the “merit” category for VPP membership. Employers applying for VPP membership are classified as “merit” members if their qualifications do not meet the higher standards for “star” membership.

Critics of the merit classification said it requires a lot of staff time and multiple on-site evaluations, the report said. Regional offices with large numbers of VPP sites and reapprovals are often unable to process applications from those companies they believe can only achieve merit status.

Davis Layne, executive director of the Voluntary Protection Programs Participant Association, told BNA Aug. 21 that the merit classification should be preserved and suggested a change that could satisfy OSHA's concerns. If OSHA staff believes an employer is only likely to qualify for the merit level, then the agency should not start the on-site evaluation process, Layne said. Instead, OSHA should tell the employer that improvements need to be made in order for the establishment to qualify for star status. However, if a firm fails to qualify for star status, there still should be the merit status option.

Reconsider 'Corporate' Category.

The panel also called for OSHA to consider whether the “corporate” VPP category should continue. This option allows large multi-site employers to put in place organization-wide programs.

According to the review, OSHA's experience has shown that corporations are often unable to meet OSHA time limits for worksites to join VPP. An OSHA directive said applicants are expected to have 10 participating worksites within five of years of being accepted as a corporate member.

Barab said OSHA is exploring removing the merit and corporate levels of VPP participation as a way to reduce the staff time and effort the program takes. Barab pointed out that there are only five corporate members and 60 merit participants.

“Allocating OSHA resources to support a process that does not result in a significant savings to OSHA or participating companies is not prudent,” Barab said. “Corporations are still eligible and encouraged to participate in VPP through site-based or mobile workforce [construction] options.”

Fatality and 'Willful' Repercussions.

Another recommendation getting scrutiny from outside OSHA is the proposal that if an employer is cited for an alleged willful violation--a finding that supervisors were aware that OSHA rules were being violated--the employer's VPP status should become “inactive.”

The report also called for OSHA to look at establishing a process for addressing a VPP member that experiences a fatality or large-scale mishap. One option would be to place the employer on inactive status until OSHA's investigation is complete, the report said. The outcome of the investigation would determine the agency's next step.

The report also recommended that if a regional administrator “believes employees' safety and health are seriously endangered or that a lack of trust has occurred between VPP management and OSHA,” the administrator should be allowed to terminate the VPP agreement.

Layne, of the VPPPA, said OSHA should not remove an employer from VPP because of inspection citations until the employer has had an opportunity to appeal the citations to the Occupational Safety and Health Review Commission.

Streamline Procedures.

Many of the other recommendations address internal changes OSHA can make in how it administers the VPP.

Among those recommendations were for OSHA staff conducting recordkeeping inspections to receive training for auditing injury and illness records, for OSHA to develop a plan to reduce differences among regions on how VPP participants are judged, and for VPP renewals to predominately handled by area offices instead of OSHA headquarters.

One set of recommendations Barab and Layne both support is reinvigorating the “special government employee” (SGE) program. The SGE program allows employees of VPP establishments to participate as members of OSHA on-site teams during VPP evaluations at no cost to OSHA.

“The first change we're making is to increase our use of SGEs in the approval and reapproval process,” Barab said.

By Bruce Rolfsen  

The report is available at http://www.osha.gov/dcsp/vpp/vpp_report_nov_2011_rev_7-11-12.pdf.

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