Washington, D.C.-based OSHA initiated its Voluntary Protection Program, or VPP, in 1982. The concept encourages cooperative action between government, labor and industry to improve worker safety and health and implement comprehensive safety- and health-management systems. In return, employers who qualify for VPP status and agree to implement necessary programs and take additional proactive steps get an exemption from programmed (non-event-triggered) OSHA inspections. The agency continues to reserve its right to make event-related investigations, such as those occurring after employee complaints or catastrophic or fatal accidents.

The VPP had been limited to stationary worksites of general industry employers. On Jan. 9, however, OSHA announced a major realignment that opens the door for greater participation by construction-sector employers. The notice, which appeared in the Federal Register, indicates the new framework would take effect May 9. The agency did not solicit comment about the revised procedures but did seek input from affected stakeholders prior to the announcement.

A New Model

VPP’s primary principle is “continuous improvement.” The program is geared toward those companies that view compliance with mandatory OSHA standards as a minimum level of performance and set their own standards more stringently through implementation of written safety- and health-management programs, employee training, monitoring and control of health hazards, and outreach to others in the industry through mentoring and participation in conferences and seminars.

VPP participants are expected to protect their workers from hazards and serve as models for effective safety and health performance in their industries. The essential principles for all VPP programs are: (1) safety- and health-management system excellence, (2) cooperative relationships with OSHA, (3) employee support for VPP status, (4) compliance with the OSH act, (5) favorable OSHA history of violations within the preceding 36 months and assurance describing what each applicant agrees to do if the VPP application is approved (case-by-case basis). The final criteria are commitment to continuous improvement and outreach to others.

There are three stages of VPP participation:

  • The Star program recognizes leaders who successfully are protecting workers from harm by implementing comprehensive and effective safety- and health-management systems, as well as sharing their experience and expertise with other employers. Successful performance for at least 12 months is required before Star status approval.
  • The Merit program recognizes employers who have implemented a safety- and health-management system that does not yet meet the Star criteria but who OSHA determines have demonstrated the commitment and resources to achieve Star status within three years. The basic VPP elements of management leadership, employee involvement, worksite analysis, hazard prevention and control, and safety and health training must be in place when applying for this classification.
  • Demonstration programs provide an opportunity for companies or worksites to show the effectiveness of alternative methods of achieving safety- and health-system excellence in a way that will encourage OSHA to modify current VPP requirements. These include industry sectors where OSHA lacks substantial experience and can test new approval protocols to expand VPP eligibility. Demonstration programs typically are developed at the national or regional level. Baseline demonstration program requirements include safety- and health-management systems that address the basic elements described in the Merit program and OSHA’s requirements for construction employers, such as those codified at 29 CFR 1926.20. There also may be injury/illness-incidence-rate thresholds depending on the proposal. The normal duration of demonstration programs is five years or less.

Going Mobile

Although VPP initially was oriented toward fixed worksites in general industry, OSHA established a pilot VPP for construction in 2004, and the experience has demonstrated the same VPP basic principles can apply equally well in mobile workforces where the employer may not have controlling authority for safety and health.

Under the new plan, participants in the VPP Mobile Workforce Demonstration for Construction will be placed in the appropriate VPP program—Star or Merit—based on their suitability under each program’s criteria. They also will be given ways to participate as site-based, mobile workforce or corporate VPP employers. The reorganization clarifies the multiple participation options available for mobile workforces, corporations and individual fixed worksites. It modifies provisions for the “Star Program Reduction Plans” and “One-Year Conditional” status concepts, as well as adds provisions for federal-agency participants who perform construction activities.

The 22 states that run their own OSHA programs governing private-sector employers will be permitted to have different participation categories, processes and criteria. Some of these already have expanded construction-industry participation. Once the new federal OSHA program takes effect, the states must notify the agency whether they will adopt the federal criteria or adhere to their current programs.

Benefitting Construction

Most mobile worksite VPP participants will be construction companies though the agency notice indicates this classification also can be used by utilities, maintenance contractors and others meeting the mobile worksite definitions. In the initial pilot demonstration program for construction, employers at all size thresholds showed significant reductions in injuries and illnesses following participation. For construction employers, total case incidence rates and days away/restricted/transferred were 54 and 56 percent, respectively, below U.S. Bureau of Labor Statistics, Washington, industry rates. Injury/illness rate experience subsequent to entering VPP in construction were on par with or below the overall VPP average rates for general industry, which demonstrated that VPP for construction was a beneficial experience. Significantly, about 28 percent of construction VPP participants employ fewer than 100 employees, including contractor/subcontractor workers, demonstrating that this program is workable and beneficial even for the smallest companies.

For construction, the company participation boundaries are defined by OSHA region or area offices, which could be a barrier for a small percentage of construction companies. However, if the construction site is of relatively long duration—more than 12 months—site-based participation still may be an option. In its revised criteria, OSHA also has scaled back the site-visit requirements and, for construction, now will reevaluate mobile workforce Star participants within 18 to 24 months of initial approval and at intervals not greater than 36 months, thereafter. In places where a majority of workers are represented by a union, signed statements of support from enough unions to represent a majority of workers at the site will be deemed sufficient.

For more information about VPP participation, employers or other interested parties can contact Cathy Oliver, director of OSHA’s Office of Partnerships and Recognition, at (202) 693-2213. Because there are no formal VPP applications, OSHA can direct employers to the appropriate regional office where initial contacts should be made to ascertain if VPP participation is viable for a particular company or worksite.

Adele L. Abrams is an attorney and safety professional who represents employers and contractors in OSHA and MSHA litigation, as well as provides safety and health consultation and auditing services. She can be reached at safetylawyer@aol.com or (301) 595-3520.