Most employers think of the Occupational Safety and Health Administration (OSHA) and see a dense series of interwoven regulations, aggressive investigators, and a hammer in search of a nail (i.e., citable violative conduct). However, OSHA ostensibly has goals other than finding reasons to issue citations. Indeed, Section (2)(b)(1) of the Occupational Safety and Health (OSH) Act states that it is the “purpose and policy” of the U.S. Congress:
to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources (1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions.
This verbiage eventually led OSHA to establish the Voluntary Protection Programs (VPP) on July 2, 1982, following in the footsteps of the California Division of Occupational Safety and Health (Cal/OSHA), which first established its VPP initiative in 1979. VPP requires management, labor, and OSHA to establish cooperative relationships and implement comprehensive safety and health management systems. According to OSHA, employers that implement effective health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries may receive “Star” recognition (for “exemplary worksites”) or “Merit” recognition (for worksites with “good safety and health management systems [that require] additional steps to reach Star quality”). As of November 30, 2022, there were 1,985 approved VPP sites under federal OSHA or OSHA-approved state plan jurisdiction that had received “Star” or “Merit” status.
The most recent revisions to OSHA’s VPP policies and procedures manual became effective on January 30, 2020, which resulted in a number of changes. These changes included:
- ways to participate that added corporate participation in addition to site-based and mobile workforce participation;
- training opportunities for OSHA staff with VPP responsibilities;
- instructions for addressing whistleblower allegations and activities at active VPP sites;
- new “Recommended Practices for Safety and Health Programs,” previously issued in 2016;
- incorporating into the manual the seven VPP policy enhancement memoranda issued since August 2009;
- transferring to regional administrators the authority to provide copies of on-site evaluation reports and worksheets;
- assigning to the VPP manager the responsibility of entering VPP site data into the VPP Automated Data System;
- adding language providing guidance for evaluating process safety management (PSM) issues at VPP sites with operations covered by the PSM standard;
- reorganizing the VPP policies and procedures manual by topic to facilitate ease of reading;
- revising the VPP Corporate policy (the chapter for VPP Corporate has been removed from the manual and a placeholder has been included pending approval of a new program for VPP Corporate);
- streamlining the appendices; and
- moving the VPP report worksheets and application templates to OSHA’s O: Drive.
Now, some three years after issuing its revised VPP policies and procedures manual, OSHA has announced that it is seeking public comment on its goal of modernizing the VPP. Specifically, OSHA indicated in its announcement that it would like to “modernize, expand, and enhance the pathways to VPP [status].” Interestingly, though the program has been updated multiple times over the years, that announcement stated, “Much has been learned about safety and health management since the VPP requirements were last updated in 1989.”
OSHA is seeking input in the form of questions for the public, which cover ten topics, from general observations to issues associated with the name of the program. Given the limited information in OSHA’s announcement concerning the modernization of VPP, one has to look to the questions OSHA asks to try to ascertain what OSHA’s goals are and where the VPP might be going.
Given that the current number of covered sites has dropped by some three hundred since pre-pandemic levels, it is clear that one of OSHA’s goals is to grow the number of participants in the program. One way to do this is to eliminate duplication in efforts to obtain VPP status with the efforts to secure ISO 45001-2018 certification, which seems a reasonable approach, given the global acceptance of that ISO standard. It also appears OSHA may be considering modifying the metrics used to ascertain whether a location is qualified to participate in VPP to help smaller entities. Such changes may include phasing out the use of the days away, transferred, or restricted duty (DART) rate in favor of other metrics that are leading and not lagging indicator(s). Finally, it appears OSHA may be interested in outsourcing the work of doing on-site safety and health system management reviews, which may actually create a barrier to entry for some, depending on whether OSHA will bear the cost of those reviews.
OSHA is also soliciting comments, which may be submitted via www.regulations.gov (Docket No. OSHA-2022-0012).
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments with respect to OSHA’s VPP modernization project and will post updates on the Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
