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OSHA pursues employer collaboration

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A long-established government program intended to encourage workplace safety is getting a facelift as the U.S. Occupational Safety and Health Administration appears to be seeking a more collaborative relationship with employers.

OSHA’s Voluntary Protection Program turned 35 last month, and the agency is looking to reshape the VPP so it can grow, continue to highlight employers demonstrating safety and health excellence, including long-time participants, and leverage partner resources.

But some experts say this effort is likely to be challenged by an inherent distrust in the employer community after eight years of aggressive enforcement outside of the program under the Obama administration.

Employers that have implemented effective safety and health management systems and maintain injury and illness rates below national averages for their industries are eligible to join the program. Potential participants must undergo a rigorous on-site evaluation by OSHA inspectors and volunteer industry safety and health professionals.

VPP participants are re-evaluated every three to five years and are exempt from regularly scheduled OSHA inspections, although they are still subject to inspections and citations related to complaints about hazards and must comply with reporting requirements for injuries.

Oshkosh, Wisconsin-based construction general contractor CR Meyer, which operates in the highly competitive pulp and paper industry, became the first contractor to achieve Star status in terms of injury and illness rates under the VPP in 2006 after participating in the VPP Challenge Pilot and Mobile Workforce Demonstration programs, which help employers take a proactive approach to occupational safety and health.

“I don’t believe we need to reinvent the wheel all over again and think that we’re going to make it better,” said Fred Rideout, CR Meyer’s risk management director.

“It was pretty darn good when it was working. There was a lot of effort put into the model that they created, and it worked. Bring it back to life.”

The program started in 1982 with 11 participants and peaked at 1,720 federal VPP participants in 2010. But it has declined every year since, according to OSHA.

Under the Obama administration, it appeared that the VPP was put on the back burner, as compliance assistance specialists shifted toward writing up potential hazards, Mr. Rideout said.

“When the emphasis changed from user-friendly to citations and issuing monetary penalties and trying to effect behavioral change through penalties, the cooperation was diminished,” he said. “Now, OSHA has to work hard to regain the trust that once was there with the compliance assistance specialists. They need to provide and support a system that welcomes people into the VPP process and gives the reassurance that it will be a worthwhile effort to undertake.”

Concerns have also been raised about a 2013 OSHA policy memo that stated a VPP participant’s status would be changed to inactive if a fatality or catastrophic incident triggered an enforcement inspection, and that the participant could lose VPP status if the inspection resulted in a fatality being deemed work-related, a willful violation or placement in OSHA’s Severe Violator Enforcement Program.

“I’d be curious if the new administration would be taking a second look at that,” said Avi Meyerstein, Washington-based partner with Husch Blackwell L.L.P. “For some companies, there was concern they have invested to be in the program, they’ve had a stellar safety record, and they might be at risk for being kicked out because of a single incident.”

Employers skittish about participating cite the concern that OSHA will use the audits to impose citations and penalties.

“I think there is an inherent distrust in the construction industry about OSHA’s true intentions,” Trent Cotney, lawyer with his own firm of Trent Cotney P.A. and Tampa-based general counsel for the Florida Roofing & Sheet Metal Contractors Association, said during a public meeting in Washington last month. “To increase participation, one of the things OSHA needs do is increase collaboration.” 

Some employers are concerned that the “government will come down harder” on VPP participants if they have a workplace incident, Mr. Meyerstein said.

“I haven’t seen that,” said Michael Maddox, executive director of the Falls Church, Virginia-based Voluntary Protection Programs Participants Association Inc. “They’re not harder on VPP participants.” 

A key indicator of future direction for the VPP and other cooperative programs will be OSHA’s ultimate budget funding, experts say. OSHA received $68.4 million in compliance assistance funding in fiscal years 2015 and 2016, down from $76.4 million in 2012, but a House Appropriations Committee proposal would fulfill the administration’s request to raise that to $72.4 million for fiscal year 2018.

Funding is critical because employers have been frustrated by lengthy wait times.

“The key to us is growing the program,” Mr. Maddox said. “There’s a big backlog of applications for new sites sitting there. It’s critical to get these caught up.”