OSHA will hold a stakeholder meeting on Monday (and another in the Fall) to discuss how to improve the agency’s Voluntary Protection Programs. So, now might be a good time to review what’s good and what’s bad about the program and how it could be improved.
History of VPP
As part of the Reagan administration’s new focus on pursuing cooperation with stakeholders, OSHA established the Voluntary Protection Programs (VPP) in 1982 to recognize workplaces with exemplary safety and health management systems. But the program did more than just “recognize” exemplary workplaces, it also provided them with an exemption from programmed inspections. In other words, VPP participants would not be inspected under any kind of OSHA targeting or emphasis program, but could still be inspected if there was a worker complaint, a fatality, catastrophe or if OSHA received a referral.
The criteria was a mix of objective data and more subjective observations. Site must ensure that injury and illness rates were better than the industry average. The participants were also required to have worker participation, which meant that if the site was unionized, the union would have to sign on. Finally, VPP sites had to submit an annual report to OSHA and be re-evaluated every 3-5 years to ensure they were still qualified to participate in the program. But OSHA also invested significant staff time in inspecting applicants’ worksites and ensuring that they had implemented a thorough health and safety management program. (OSHA issued health and safety program guidance in 1989.)
“Henshaw has seen the future, and he calls it voluntary compliance.” “VPP is where the future is,” Henshaw announced at the annual meeting of the Voluntary Protection Programs Participants’ Association.
The small program chugged along nicely for a number of years. By the end of 1995, membership had grown to 200 worksites, employing about 142,000 employees in about 30 states. But those quiet years were about to end. George W. Bush’s first OSHA head, John Henshaw, decided the VPP was OSHA’s future. By 2002, the program had grown to 800 participants, and Henshaw announced that he wanted to grow the program ten-fold, to 8,000 sites. OSHA also began pressuring the state plan states to launch VPP programs if they had not yet done so. One journalist observed that “Henshaw has seen the future, and he calls it voluntary compliance.” “VPP is where the future is,” Henshaw announced at the annual meeting of the Voluntary Protection Programs Participants’ Association.
Henshaw made another commitment, one that would be even harder to keep:
“I want to make it perfectly clear, we are not interested in growth for growth’s sake,” he said. “Our ultimate goal is to maintain the integrity and quality of the VPP program and prevent injuries illnesses, and fatalities in the workplace.”
The Government Accountability Office, however, had by that time already developed grave misgivings about the resources that would be needed to support such an expansion and OSHA’s ability to maintain the program’s integrity. A March 2004 GAO report pointed out that to certify a worksite as a VPP worksite requires a comprehensive on-site review that usually lasts 1 week and involves approximately three to five OSHA personnel. As OSHA’s pie was not expected to grow substantially, GAO warned that the resources needed for such an expansion may come at the expense of enforcement.
A June 2009 GAO report warned that the uncontrolled growth of the program threatened its integrity. Noting that the program had more than doubling–from 1,039 sites in 2003 to 2,174 sites in 2008, the GAO warned that only qualified worksites participate in the VPP. Specifically, OSHA was allowing participants that had experienced fatalities and serious injuries to remain in the program without reviewing the adequacy of their programs. ”
GAO interviewed regional officials and reviewed the inspection files for these sites and found that some sites had safety and health violations related to the fatalities, including one site with seven serious violations. As a result, some sites that no longer met the definition of an exemplary worksite remained in the VPP.
Furthermore, OSHA’s regional offices were not reviewing participants’ injury and illness rates to ensure that they didn’t not rise above the requirements of the program. Finally, OSHA had never evaluated the program’s effectiveness or assessed the impact of the VPP on sites’ injury and illness rates.
The Obama Administration
President Obama’s OSHA inherited an VPP program that was in crisis and fighting for its life. The program had grown to around 2200 sites in federal and state plan states. At the beginning of a new administration, there was considerable pressure to eliminate the entire program coming from high level administration officials who were looking to terminate failing programs that had not proved their effectiveness in an era where agency funding was expected to be tight.
The program had tripled in size between 2000 and 2011, and the Bush administration had grown the program to the point where OSHA no longer had the resources to maintain the integrity of the program, as the GAO warned in 2004 and 2009. There was an enormous backlog of VPP reapproval applications, which meant that hundreds of sites were not being reviewed to ensure that they were still qualified to be part of VPP.
More seriously, OSHA was failing to review the records of VPP participants who had experienced fatalities and willful citations, and terminate those who no longer qualified to be in the program. The GAO warnings were coming true.
Chris Hambry of the Center for Public Integrity wrote a series of articles about problems in the VPP. Hambry focused on a Tropicana plant where a fire broke out in 2005, severely burning two employees. Hambry reported that “In the official report, inspectors didn’t mince words. They found instances in which “employees were told to ‘throw safety out the window’ and get the work done.” Company managers had shown“deliberate, voluntary and intentional disregard to employee safety.” Yet, despite receiving a dozen violations, including two willfuls, Tropicana remained in the program.
According to Hambry, “Since 2000, at least 80 workers have died at these sites, and investigators found serious safety violations in at least 47 of these cases.”
Workers at plants billed as the nation’s safest have died in preventable explosions, chemical releases and crane accidents. They have been pulled into machinery or asphyxiated. Investigators, called in because of deaths, have uncovered underlying safety problems — failure to follow recognized safety practices, inadequate inspections and training, lack of proper protective gear, unguarded machinery, improper handling of hazardous chemicals.
Yet these companies have rarely faced heavy fines or expulsion from the program. In death cases in which OSHA found at least one violation, VPP companies ultimately paid an average of about $8,000 in fines. And at least 65 percent of sites where a worker has died since 2000 remain in VPP today.
I headed OSHA at the very beginning of the Obama administration, and realizing that the program was suffering and threatened with termination, I went on a listening tour to find out why participants valued the program, and what we could do to save it. We ultimately made the decision to save the program, but decided to focus on the integrity of the program, rather than its growth — calculating that it didn’t really matter how large the program was if no one agreed that it was living up to its goal of recognizing the best companies.
I spoke in the Fall of 2009 at the annual convention of the Voluntary Protection Programs Participants Participants Association (VPPPA). I noted that while we valued VPP, this administration would turn its emphasis to enforcement: “Although we wish everyone were as committed to workplace safety and health as VPPPA members, this is unfortunately not the case. For that reason, this administration will turn its focus to those worst offenders who continue to needlessly put workers’ lives in jeopardy.” They were so relieved that we weren’t eliminating the program, they put me on the cover of their magazine, announcing that it was their “best conference yet.”
But while they were relieved that the program would survive, it was clear there would be changes to ensure VPP’s quality and integrity, and I warned that we were unlikely to see significant growth in the near future.
We initiated a number of actions to save and improve the program:
- Initiated an internal review of how to implement the recommendations of the 2004 and 2009 GAO reports.
- Removed quotas for new VPP sites that had been imposed by the Bush administration and instructed Regional OSHA offices to prioritize reapprovals of current sites over bringing new sites into the program. VPP participants peaked on the federal level in 2010 at slightly more than 1700 and dropped to over 1400 in 2015. As OSHA’s budgets failed to grow (effectively cutting the budget), this policy resulted in understandable complaints from companies that wanted to join VPP but faced years-long waiting lines.
- Proposed a fee-based program that would require VPP applicants to pay a fee for joining VPP, thereby relieving the budgetary pressure on the program.The VPPPA strenuously opposed the fee-based plan, fearing that it would appear to be a “pay-to-play” scheme. The proposal was later dropped by OMB who decided to approve no new fee-based programs in the upcoming budget.
- Issued a policy prohibiting VPP participants from having rate-based incentive programs that discourage workers from reporting injuries. VPPPA vigorously opposed this instruction, although the GAO, in a 2012 report, praised OSHA’s incentive program policy, and recommended that OSHA establish criteria “across all of its cooperative programs such as the Voluntary Protection Programs (VPP) and Safety & Health Achievement Recognition Program (SHARP)” that “prohibits employers with safety incentive programs that focus on injury and illness rates from participating in the program.”
- Issued a policy setting up a process for terminating VPP sites that had experienced fatalities or received a willful violation, but providing an opportunity to appeal to the Assistant Secretary.
- Issued a policy reducing the period provided to VPP participants to improve their records when their injury and illness rates had fallen below the VPP criteria.
But as predicated, the program was not growing. As a Republican-controlled Congress continued to refuse to raise OSHA’s budget, including its compliance assistance budget, the number of Compliance Assistance Specialists — who work with VPP participants and applicants — dwindled, delaying the acceptance of new VPP applicants. Some OSHA regions were only able to get their reapprovals completed each year, with no resources left to develop new members.
VPP: Good Program or Waste of OSHA’s Scarce Resources?
Given OSHA’s falling budget numbers and the fact that more then 4500 workers are killed in the workplace very year and 4 million seriously injured, is VPP the best place to be putting OSHA’s resources? In theory, of course, its valuable for OSHA to recognize those companies that excel in safety and health to show other companies that it is possible to protect workers — even to exceed OSHA standards — and still run a successful, profitable company.
Should OSHA spend scarce resources on recognizing and improving the top one-tenth of one percent of companies that have already gotten the message that protecting workers is important, or on the bottom 20 percent of companies who are still out there cutting corners and killing workers?
But the Reagan administration’s decision that recognition of excellence should be accompanied by inspection exemptions meant that OSHA would also have to invest significant resources into ensuring that VPP participants actually deserved the exemptions. Now, three and a half decades later, facing drastically shrinking resources, we must ask if it makes sense to spend OSHA’s scarce resources on recognizing and improving the top one-tenth of one percent of companies that have already gotten the message that protecting workers is important, or focus on the bottom 20 percent of companies who are still out there cutting corners and killing workers?
Over the years, the debate over VPP has reached quasi-religious dimensions, supported by zombie-like myths that live on beyond death. Just a few weeks ago, for example, we heard Secretary Acosta respond to a question at his Appropriations hearing about why OSHA’s budget proposal was emphasizing compliance assistance over enforcement.
Acosta argued that programs
like the VPP program and others that work with particular companies to foster compliance assistance may — not may, but the evidence shows do — produce better safety outcomes. The budget will fund the VPP program that has in fact been shown to be very successful working with companies and saying, look, these are the steps you can take so that you can provide a safe workplace.
Actually, there is no proof that VPP produces better outcomes than enforcement. Does OSHA enforcement of low road employers that cut corners and endanger workers work better than encouragement of high-road employers who already understand the workplace safety is important? While there is plenty of evidence that strong enforcement and penalties are effective in reducing injuries, the benefits of VPP have never been studied.
And the statement that VPP participants have better safety records than non-participants confuses cause with effect. While VPP participants clearly have better safety and health records than the average company, they already had a better safety record before going into VPP. They were already dedicated to improving their safety and health program and saw VPP as a means to get them to a higher level. In other words, these companies are in VPP because of their superior safety records. They don’t have superior safety records because of VPP.
VPPPA: An Organization that has outlived its usefulness?
The Voluntary Protection Programs Participants Association was formed in 1985 to “provide support for companies participating in VPP or aiming to participate.” In theory, and organization like VPP makes sense. A group of companies that excel in protecting workers can not only help other companies (which many VPP participants do), but also be a strong public policy advocate, educating our law makers on the value of safety and health, the need for an adequate budget, the importance of strong standards and tough enforcement, and how they work together with compliance assistance and cooperative programs like VPP. VPP companies could help OSHA develop better standards based on their exemplary programs.
Instead, VPP has turned into an agency with one goal — and only one goal: increasing VPP participation — at the cost of other important OSHA programs (such as enforcement, whistleblower protections and standards), and ultimately, if not intentionally, at the cost of the integrity, and the future of the program itself. VPPPA leadership never seemed to understand the budget limitations OSHA was under. Open warfare often threatened to break out between the leadership of VPPPA and OSHA.
Typical was an accusation by VPPPA Chairman Mike Maddox against Assistant Secretary David Michaels at the 2014 VPPPA convention: “Michaels shifted some of the funding Congress approved for OSHA’s VPP activities to whistleblower programs, and the resulting shortage stalled VPP applications. I think it’s all designed to destroy the program.”
In addition to be flat wrong, it’s not even possible. OSHA created a new line item for Whistleblower program in 2012, but that funding came out of enforcement, not compliance assistance, the account that funds VPP. Second, the Assistant Secretary is not allowed to just arbitrarily shift money from one budget item that Congress has appropriated, to another budget category. And such words clearly don’t help the process of working together to find solutions to very real problems.
I will be speaking at next week’s stakeholder meeting on who to improve VPP and I will raise some of the issues that I’ve raised above. But I have two issues
First, why isn’t OSHA also holding a meeting on how to strengthen enforcement? Or how to strengthen and streamline standard development? The Obama administration, in contrast, requested comments on strengthening all of its programs. One of Assistant Secretary David Michaels’ first actions when he assumed the helm of OSHA was to schedule a day-long “OSHA Listens” meeting, open to everyone, to request input on how OSHA could strengthen all of its programs, not just his selected favorites.
Second, is this meeting just intended to be a platform for VPP participants and the VPPPA to lobby for more funding at the expense of the OSHA enforcement, whistleblower or standards programs? Does Secretary Acosta intend to copy John Henshaw’s veneration of VPP or is he also going to be serious about enforcement? Is OSHA going to listen to, and seriously consider ideas like a fee-based program? Or perhaps graduating long-term VPP members to allow new members to join? We shall see.
There is no doubt that the founders of OSHA intended standards and enforcement of those standards — and not compliance assistance — to be the primary means by which OSHA encourages employers to protect workers.
But ultimately, choices will need to be made. There is no doubt that the founders of OSHA intended standards and enforcement of those standards — and not compliance assistance — to be the primary means by which OSHA encourages employers to protect workers. Compliance assistance certainly has and important role to play, but employers have many other ways to get training and information. They can employ full time safety and health staff or hire consultants. For small employers who may not have the ability to employ full time safety and health staff or hire consultants, OSHA funds an Onsite Consultation program in every state to provide free assistance to small- and medium-size employers.
Forgetting the unique and vital role that OSHA has in enforcing the law, deviating resources away from the workers who need it most — those who work for employers who don’t “get it” — is a clear way to ensure that more workers are needless injured, sickened and killed on the job.
And that’s the message I will be delivering on Monday.