As the Trump Administration pursues its agenda of de-regulation, OSHA issued a policy memo recently, reversing course on a key part of its approach to the Voluntary Protection Program (VPP). According to a May 30th memo, which revised a 2013 policy (“Memorandum #7”), OSHA will no longer automatically issue an Intent to Terminate Notice (ITT) to companies on VPP when certain events occur. Instead, the agency will take a more deferential and conciliatory approach to overseeing VPP participants. The changes implemented by the May 2018 memo took effect immediately.

Promoting investigation over termination

Regional Administrators are instructed to change policies and procedures with regard to incidents that potentially impact VPP status of participants in accordance with the following provisions:

• Initiate an investigation and issue a report upon the occurrence of only 2 types of events:
  • A fatality or catastrophe at a VPP site, or
  • The failure to timely report a fatality, catastrophe or other significant incident under 29 CFR 1904.39;
• Within 30 days of the report described above, change the status of VPP site to “Inactive Pending Investigation.” The change in status must be accompanied by a removal of all references to the participant as a “VPP” site in participant and OSHA media;
• If citations are issued, facilitate a meeting with the participant to collect additional information regarding the incident and to assess the status of the participant’s safety and health management system;
• Determine whether to issue an ITT without further input from DCSP Director; and
• If termination of VPP status is warranted, provide the participant with the option to withdraw from the VPP or be issued an ITT. The participant retains the right to appeal the decision to terminate VPP status to the Office of the Assistant Secretary.

These are major changes from the 2013 policy

OSHA’s original Memorandum #7 issued by Dr. David Michaels on May 29, 2013 incorporated provisions to address concerns that the VPP program had failed to maintain adequate controls to ensure that only participants with exemplary health and safety programs were designated as VPP sites. Under the 2013 policy, Memorandum #7 covered a broader scope of incidents requiring action by Regional Administrators and imposed stricter consequences on those participants, such as:

• Requiring Regional Administrators to automatically send an ITT rather than facilitate a meeting to address safety and health concerns;
• Including not only the occurrence of fatalities/catastrophes and the failure to report fatalities as specific conduct subjecting the VPP participant to termination, but also the occurrence of  willful violations, or an occurrence that resulted in placement of the participant in the Severe Violator Enforcement Program; and
• Including the national office in the determination of whether a participant’s conduct warranted termination from the VPP.

The 2013 memo had been OSHA’s response to deficiencies in the VPP cited by the General Accounting Office (GAO) in its 2009 report. The 2009 GAO report contained a detailed analysis of OSHA’s VPP and determined that OSHA ‘s internal controls failed to ensure that only qualified work sites participate in the VPP.

Outlook for the future

Based on the new policy, it looks as if OSHA is turning back the clock on its VPP approach. This reflects DOL Secretary Alex Acosta’s support for compliance assistance programs, such as VPP. OSHA may seek to expand the program in the future.