OSHA Changes Policy on Fatalities at VPP Worksites

By Roy Maurer Jun 26, 2013

Should facilities where a fatality has occurred remain in the federal government’s “model workplace” program? It’s a question that’s dogged the U.S. Occupational Safety and Health Administration (OSHA) for years.

OSHA published a new policy June 4, 2013, detailing steps the agency will take when a death or three serious injuries that require hospitalizations occur at a Voluntary Protection Program (VPP) site. Fatalities or catastrophic accidents at VPP worksites will now trigger inquiries that could lead to OSHA’s removing a site from the safety program, as well as high-level scrutiny from federal authorities, according to the memorandum from Assistant Secretary of Labor David Michaels.

“There needs to be a continuing focus on fatalities among contractors at VPP sites,” Michaels said at the American Industrial Hygiene conference in May. “Some of the fatalities had clear, preventable causes, and it raises questions whether that employer should be in VPP.”

To be accepted into the program, an employer must apply to state or federal OSHA offices, then undergo an onsite evaluation, implement effective safety and health management programs, and maintain injury and illness rates below the national averages for its industry. In exchange, VPP members are exempt from OSHA programmed inspections. As of March 2013, there were more than 2,000 employers participating in the VPP, according to OSHA data.

In 2009 the Government Accountability Office discovered that 30 VPP sites had fatalities over a five-year period. Some facilities had OSHA violations related to the fatalities but remained in the program even though they no longer met the definition of an exemplary workplace for safety. OSHA responded to the GAO report and said it was committed to fixing any problems with the program. In November 2011 an internal review board recommended that the agency issue a directive on handling fatalities at VPP worksites.

Policy Changes

The policy is effective immediately and defines a new “status” during the inspection and enforcement period for participating companies at which a fatality or catastrophe occurs.

If the incident triggers an enforcement inspection, the status of the VPP participant will be changed within 10 days to “inactive pending fatality/catastrophe inspection.”

While that designation is pending, the business cannot display the VPP insignia. After the inspection is completed, one of the following two scenarios will occur:

  • If a fatality is deemed work-related or the site is placed in the Severe Violator Enforcement program or a willful violation is issued, OSHA will send the facility a “notice of intent to terminate” its participation in the VPP within 10 days of the inspection. The employer then has 30 days to appeal the termination recommendation.
  • If a violation other than willful is issued or there is no violation issued, the regional OSHA administrator will make a recommendation on whether the facility should be allowed to continue in the program. The national OSHA office has the final decision.

“While a large part of the memorandum is process-oriented, I am struck by the initial notification requirements to the national office in the event of a fatality or catastrophe,” said Brad Hammock, partner in the Washington, D.C., office of Jackson Lewis and leader of the firm’s Workplace Safety and Health practice group. The national office will be keenly involved in the investigation and any citations issued, Hammock told SHRM Online. “In addition, the highest levels of the agency will also be involved in determining continued participation in the program after the investigation is complete. VPP participants and those companies interested in applying for VPP status need to be cognizant of this high-level involvement.”

Roy Maurer is an online editor/manager for SHRM.

Follow him on Twitter @SHRMRoy.

Related Articles:

OSHA’s ‘Model Workplaces’ to Face Greater Scrutiny, SHRM Online Safety & Security, September 2012

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