OSHA announced today that it is inviting “the public and workplace safety stakeholders to share their comments on how the agency can best honor companies who make exceptional commitments to workplace safety and health, and encourage others to follow.”
In other words, OSHA is looking for advice about how to modernize its Voluntary Protection Programs (VPP).
VPP was created 40 years ago, in 1982, during the Reagan administration. Its purpose was to recognize the best companies and after a rigorous audit of the worksite and the plant’s injury and illnesses statistics, performed by OSHA staff, award them with the VPP designation. If the VPP applicant was unionized, the union would have to agree to VPP participation. Every three to five years, OSHA would perform a re-approval, which involved an additional audit.
In addition to being a VPP participant and flying the VPP flag, VPP members are exempt from “programmed” inspections. Programmed inspections are those inspections that result from a special emphasis program. These may be National or Regional emphasis programs targeting a specific industry (such as the chemical industry) or specific hazard such as trench collapses or silica exposure.
VPP participants can still be inspected (and cited) as a result of a fatality, catastrophe, worker complaint or referral.
The Voluntary Protection Programs Participants’ Association (VPPPA) is a non-profit organization that represents the interests of VPP participants.
Bush Administration
VPP was a nice little program requiring relatively few OSHA resources until the second Bush administration when OSHA’s Assistant Secretaries John Henshaw and Ed Foulke decided that VPP was OSHA’s future. They significantly increased the resources dedicated to the program and assigned every OSHA Region an ever-increasing quota of new VPP participants. Consequently, the program had tripled in size between 2000 and 2011. (You can read a more detailed history of VPP here.)
Several problems emerged from the Bush VPP expansion. The Government Accountability Office (GAO) warned in 2004 that the uncontrolled growth of the program threatened its integrity and sapped OSHA’s enforcement resources. GAO noted that “the percentage of resources dedicated to voluntary compliance programs and compliance assistance activities has increased by approximately 8 percent since 1996…while the proportion of resources OSHA dedicated to its enforcement activities fell by 6 percent.”
In addition, OSHA no longer had the resources to maintain the integrity of the program and sites were admitted to the program without full qualifications. OSHA almost never kicked a site out of the program, even when their injury and illness numbers rose. Even where workers were killed on VPP sites and the company was cited — for willful violations — companies were almost never removed from VPP.
A June 2009 GAO report again warned that the uncontrolled growth of the program threatened its integrity, stating that “OSHA’s internal controls are not sufficient to ensure that only qualified worksites participate in the VPP.”
Journalist Chris Hamby, then writing for the Center for Public Integrity, wrote a series of articles about problems in the program, citing OSHA inaction, even in the face of dozens of worker deaths in VPP sites and willful citations against VPP companies.
A June 2009 GAO report again warned that the uncontrolled growth of the program threatened its integrity, stating that “OSHA’s internal controls are not sufficient to ensure that only qualified worksites participate in the VPP.” The GAO report confirmed Hamby’s reporting that OSHA was allowing participants that had experienced fatalities and serious injuries to remain in the program without reviewing the adequacy of their programs. ” 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.
Obama Administration
When I arrived at OSHA in 2009, addressing VPP’s problems were one of my top priorities. Not only did we immediately begin to address the issues cited by Hamby and the GAO, but we also tackled the enormous backlog of VPP re-approvals that had built up over the past years when the emphasis was focused on new applicants.
Failure to recertify meant that OSHA was not able to identify VPP participants that were no longer meeting the standards of the program. We implemented tighter oversight of VPP sites where workers had died, eliminated the quotas for new participants and ordered the regions to stress re-approvals over accepting new participants.
To alleviate VPP’s drain on OSHA’s budget, we also attempted to implement a fee-based program where participants would pay for getting into the program and their re-approvals. The VPPPA strongly opposed a fee based program and the proposal was later dropped by the White House for unrelated reasons.
Because of OSHA’s budget problems, cracking down on unqualified participants and stressing re-approvals over new applications, the number of VPP participants actually decreased during the Obama administration.
Why VPP?
What’s the point of VPP? Is the program worth the resources that OSHA invests in the program? Should participant receive any type of inspection exemption? And given OSHA’s very tight budget, is it was better to spend OSHA’s meagre resources to improve companies that were already doing great and want to do better, or to focus OSHA’s resources on vulnerable workers at low road companies that are cutting corners and killing their employees?
The core question we asked ourselves was whether it was better to spend OSHA’s meagre resources to improve companies that were already doing great, or to focus OSHA’s resources on vulnerable workers at low road companies that were cutting corners and killing their employees.
A strong argument can be made for a program that highlights and awards companies that can show they can run successful, profitable and safe business that go way above and beyond OSHA requirements. They can be an example of the success of comprehensive safety and health programs, also known as Safety and Health Management Systems (SHMS). Such companies can be models for others and also serve a strong political function, contradicting the tired old industry accusations that OSHA regulations hurt businesses and cost jobs.
Similarly, an organization representing VPP participants could potentially make an important contribution to the public policy debate by advocating in Congress, state houses and the press for a higher OSHA budget, stronger enforcement and effective new OSHA standards.
The reality has been somewhat different, or at least undetermined.
First, despite claims on OSHA’s website, the effectiveness of the program has never been evaluated.
And there’s the chicken/egg cause and effect problem. For example, OSHA claims that
VPP is effective at reducing injuries and illnesses at participant worksites. The average VPP worksite had a Days Away Restricted or Transferred (DART) case rate of 53 percent below the average for its industry for non-construction participants and 60 percent below the average for its industry for site-based construction and mobile workforce participation for 2020 (calculated annually by the Office of Partnership and Recognition and is based upon the injury and illness data submitted every year by the VPP participants). These lower than industry rates have been documented since 2001, showing that VPP has consistently reduced injury and illness rates in both construction and non-construction VPP worksites for two decades compared with the national average. [emphasis added]
You might have the impression here that OSHA takes a mediocre company, confers VPP status upon them and improved health and safety conditions follow. In other words, VPP causes improvements.
Actually, it’s the other way around. The companies that apply for VPP status have already decided to emphasize workplace safety and they must have excellent programs just to get in the front door of the application process. The lengthy (and resource-intensive) application process will generally point out residual flaws in their systems and lead to further improvements, but to say that VPP itself reduces injuries and illnesses in a workplace displays a cause and effect problem that has never been studied.
To put it more simply, does VPP participation make a company’s workplace safer, or do safer companies apply for VPP status. Bottom line is that there has never been a comprehensive study of the effectiveness of VPP in making workplaces safer.
To put it more simply, does VPP participation make a company’s workplace safer, or do safer companies apply for VPP status? Bottom line is that there has never been a comprehensive study of the effectiveness of VPP in making workplaces safer.
In addition, VPPPA, instead of becoming a strong public advocate for OSHA’s enforcement programs, budget and regulatory efforts, has become an aggressive inward-facing advocate for itself: its main and almost sole focus aims at celebrating itself, increasing VPP membership and providing technical assistance and great conferences for current VPP participants.
OSHA’s Questions
To its credit, today OSHA announced a request of public comment in order taking a hard look at modernizing the program. There are a number of questions that OSHA asks in the document. Its main focus is on expanding the number of VPP participants to better demonstrate the effectiveness of safety and health management systems, and expanding ways to enlist non-OSHA staff such as Special Government Employees (SGE), certified safety and health professionals, 3rd party auditors/certifications, and others to help OSHA administer the program and “ensure the ongoing quality of VPP participants’ OSH management systems.”
Many the questions focus on how to improve the quality of the program such as
- Aligning the program more closely with recent occupational safety and health management practices and system standards.
- How the program can contribute to expanding the use and effectiveness of safety and health management systems.
- Whether particular categories of hazards need special attention in the VPP certification process.
But in addition to the “improvement” questions, OSHA is asking (sometimes between the lines) several more subtle, existential questions.
For example, there are questions about whether exempting participants from OSHA programmed inspections is an effective incentive for VPP participation and whether the exemption creates “any concerns about workplace safety and health at these facilities?”
OSHA is also asking whether “the manufacture or use of any specific hazardous materials [should] preclude involvement or require special conditions?” Recently we wrote about US chlorine manufacturers (and VPP members) who still use cancer-causing asbestos, even though safer alternatives exist. (My general feeling on this is that in general, working with hazardous chemicals is inevitable, but VPP participants should be expected to set an example for working with these materials safely. If, on the other hand, there are safer alternatives to hazardous chemicals and substances, VPP participants should be in the lead implementing the safer alternatives.)
OSHA Is also asking about the usefulness of injury statistics, which are the main criteria for getting into (and staying in) VPP. These statistics are self-reported by employers and there is considerable evidence that they can be — and are — often manipulated, leading to severe under-reporting. Good accurate data, however, can show what programs are more effective than others. OSHA wants to know how the data can be collected in a cost-effect manner and how the accuracy and integrity of the data can be assured.
In addition, injury statistics are what’s known as “lagging indicators,” meaning that once someone is injured, it’s too late to prevent it. OSHA wants more information about “leading indicators” which can better warn about unsafe conditions before workers are injured or killed.
VPP Resources
The most fundamental issue raised by OSHA whether and how to use third party auditors to supplement OSHA’s efforts. This is an important question as OSHA estimates that it spends over $6.6 million on VPP every year and the use of third-party auditors paid by the companies, could ease OSHA’s financial burden.
But the $6.6 million figure may be a significant underestimate. OSHA states in its Congressional Budget Justification that “OSHA does not specifically track VPP activities in the agency’s accounting system or timekeeping system.” The $6.6 million figure is “based on full time staff assigned to work on VPP, and any travel associated with the Program.” It’s unclear whether the cost of OSHA compliance assistance staff, managers and even some inspectors who work part-time on VPP activities are included in the $6.6 million.
To address the drain on OSHA’s small budget, OSHA is asking about the use of Special Government Employees (SGEs) and third party auditors to do some of the approval and re-approval work currently conducted by OSHA staff. OSHA already uses SGE’s, which are people “designated, appointed, or employed by the Government to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days.” In the VPP context, OSHA designates safety professionals who are employed by VPP participants as SGE’s to help with the process of approving new applicants and re-approving current participants. The companies pay all expenses of the SGEs.
Using third-party private sector auditors (presumably paid by VPP applicants or participants for re-approvals) would be a new thing. While the use of third party auditors would ease the drain on OSHA’s budget, they are not problem free. In 1994, for example, OSHA was asked to consider allowing companies to use third party auditors to replace OSHA inspectors in some cases. After due consideration, including a number of stakeholder meetings, the idea found to be too problematic.
A Senate Committee report concluded that
“Conflicts of interest would be almost unavoidable…since the third party auditor would be hired by the employer and would depend on the employer’s repeat business and good will for his livelihood, there would be enormous incentives to overlook problems and to certify employers despite the existence of serious hazards to the employees.
Even VPPPA wasn’t supportive of the idea at that time, concluding that
because the third parties would be selected and paid for by the facility, the possibility exists that the auditors may tell facility managers what they want to hear.’’ These employers have also pointed out that ‘‘employees are more likely to trust OSHA with their safety and health issues than third-party auditors who are paid by their employer.
That controversy was focused on using third party auditors instead of OSHA inspectors and not VPP auditors, but the problems remain the same.
In addition, a third party audit program would require some sort of certification program for the third-party auditors which would require strict and costly oversight by OSHA. If that program grows substantially (as OSHA seems to envision), OSHA would likely be unable to afford the effective oversight that the program would require.
It is unclear where VPPPA is on the idea of using — and paying for — third party auditors, although, as mentioned above, they were dead-set against transforming the program into a fee-based program.
Why do we Care?
Unfortunately, VPP bestows not just recognition on its participants and a flag to fly at the worksite, but also offers something of value: an exemption from programmed inspections. And that’s a problem
Conclusion
“OSHA’s main emphasis (as expressed by where it spends its money) needs to remain on enforcement activities, the development of new standards and assistance to the most vulnerable workers.”
Should be a self funded fee for service program, if it should continue to exist at all. OSHA’s resources are too few and stretched too far to use tax payer dollars on these programs.