OSHA’s longstanding, often-praised “Voluntary Protection Program” (VPP) recognizes employers and workers in both the private and federal sectors who implement effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries. Given that one of OSHA’s regulatory priorities is adoption of its “I2P2” rule (injury and illness prevention programs, AKA safety and health management systems), VPP participant “success stories” have been used to demonstrate a positive return on investment from I2P2 programs and to show their effectiveness in further reducing occupational incidents. Simply put, a company that is approved for VPP status has historically been viewed as “the best of the best.”
In VPP, management, labor, and OSHA work cooperatively and proactively to prevent fatalities, injuries, and illnesses through a system focused on: hazard prevention and control; worksite analysis; training; and management commitment and worker involvement. To participate, employers must submit an application to OSHA and undergo a rigorous on-site evaluation by a team of safety and health professionals. Union support is required for applicants represented by a bargaining unit, but non-union worksites are also eligible. VPP participants are reevaluated every 3 to 5 years to remain in the programs. Statistical evidence for VPP’s success is impressive. The average VPP worksite has a Days Away Restricted or Transferred (DART) case rate of 52 percent below the average for its industry sector.
In addition to the promise of improved safety performance, another incentive to jump through the hooks for VPP status is that VPP participants are exempt from OSHA programmed inspections (those under site-specific targeting, as well as national, regional, and local emphasis programs) while they maintain their VPP status. However, they can still be inspected based on employee complaints, imminent danger situations (when an inspector drives by and sees someone working in a perilous condition, such as an unsupported trench or excavation), or when a fatal accident or catastrophic event (defined as when three or more individuals are hospitalized) occurs.
OSHA approves qualified sites to one of three programs:
Star: Recognition for employers and employees who demonstrate exemplary achievement in the prevention and control of occupational safety and health hazards, the development, implementation, and continuous improvement of their safety and health management system.
Merit: Recognition for employers and employees who have developed and implemented good safety and health management systems, but who must take additional steps, to reach Star quality.
Demonstration: Recognition for employers and employees who operate effective safety and health management systems that differ from current VPP requirements. This program enables OSHA to test the efficacy of different approaches.
The program is open to both general industry and construction and currently there are 177 construction sector participants, although most of these are at the entry levels of the program (67 building construction, 33 heavy construction, and 77 specialty trade contractors).
Despite the success of VPP, and even pending bipartisan legislation to formally codify the program, the program has not been a favorite in the current administration—which places much more emphasis on enforcement than on cooperative programs—and staffing has been diminished, especially in the wake of government budget sequestration, so that enforcement personnel were not impacted.
The latest salvo against VPP occurred on May 29, 2013, when OSHA issued a memorandum to make “further improvements” to the VPP program by tightening the criteria for continued participation if a VPP site or mobile workforce site (MWF) under VPP has a fatality/catastrophe or is issued a “willful” OSHA violation.
Under the new procedures, once OSHA is informed of a fatality/catastrophe at a VPP/MWF site (including an incident involving a contractor at the site), and the event triggers an enforcement inspection, the status of the VPP/MWF participant will be changed to “inactive pending fatality/catastrophe inspection.” Within 10 days of the inspection commencement, OSHA will change the participant’s status on its website and in all print and electronic materials, and will tell the employer that they can no longer display the VPP flag, plaque, or certificates. In addition, if there are any Special Government Employees (who are sometimes detailed to work at VPP sites), they can no longer act in this role while the site is under inactive status.
Once the enforcement inspection is done, if the fatality is deemed work-related, if the site is placed under OSHA’s “Severe Violator Enforcement Program,” or if a willful violation is issued to the VPP/MWF participant in any type of OSHA inspection, the agency will issue a “notice of intent to terminate” VPP status. If the inspection results in one or more “serious,” “repeat,” or “other than serious” citations, the agency will review the situation at the regional level and then notify headquarters whether termination of VPP status is recommended.
Finally, the memorandum emphasizes that OSHA can terminate a VPP participate for failure to maintain requirements of the program, but normally this would occur only after all efforts for assistance have been exhausted (e.g., OSHA identifies programs, recommends solutions, and the employer refuses to adopt the suggestions). Termination can also occur when “trust and cooperation” among labor, management, and OSHA no longer exists.
The bottom line is that, for companies seeking to become involved in VPP, the climate at OSHA is not conducive to approval of new VPP site applications. For those currently in VPP or one of its initial stages, OSHA has new justifications now for stripping that status away. Finally, contractors who may be working at VPP/MWF sites must be aware that their actions could have serious consequences for the general contractors who are under VPP, given that a contractor/subcontractor’s violations can result in redundant citations under OSHA’s Multi-Employer Worksite policy, which could impact the company’s ability to sustain its VPP status. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, July 2013
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