[Federal Register Volume 74, Number 6 (Friday, January 9, 2009)]
[Notices]
[Pages 927-952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-165]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
Revisions to the Voluntary Protection Programs To Provide Safe
and Healthful Working Conditions
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of revisions to the program.
-----------------------------------------------------------------------
SUMMARY: This notice, which sets forth the basic philosophy and
requirements of the Occupational Safety and Health Administration's
Voluntary Protection Programs (VPP), revises VPP's traditional focus on
individual fixed worksites by adding two new ways to participate:
Mobile workforce and corporate. A significant reorganization of the
program helps clarify the multiple participation options now available.
Additional changes include: Greater flexibility in the VPP
Demonstration Program; modified provisions concerning Star Program Rate
Reduction Plans and 1-Year Conditional status; clarified requirements
for Federal agency participants performing construction activities; and
a new expectation concerning outreach and mentoring activities.
DATES: The revisions are effective 120 days from date of publication in
the Federal Register.
FOR FURTHER INFORMATION CONTACT: Cathy Oliver, Director, Office of
Partnerships and Recognition, Occupational Safety and Health
Administration, Room N3700, 200 Constitution Ave., NW., Washington, DC
20210, telephone (202) 693-2213. Electronic copies of this Federal
Register notice, as well as news releases and other relevant documents,
are available at OSHA's Web site, http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The Voluntary Protection Programs (VPP), adopted by OSHA in Federal
Register Notice 47 FR 29025, July 2, 1982, and subsequently revised,
have established the efficacy of cooperative action among government,
industry, and labor to address worker safety and health issues and
expand worker protection. VPP participation requirements center on
comprehensive management systems with significant management leadership
and active employee involvement to prevent or control the safety and
health hazards at the worksite. Employers who qualify generally view
OSHA standards as a minimum level of safety and health performance and
set their own more stringent standards where necessary for effective
employee protection.
Continuous improvement is a well-established principle of VPP.
Participants strive to make ongoing gains in performance and protective
systems, and OSHA strives to improve the VPP, its policies and
procedures, and its impact on workplaces throughout the United States.
The well documented success of VPP, the applicability of VPP
principles to diverse industries and work situations, and the presence
within its ranks of world-class models of safety and health excellence
have produced a continuing stream of applications from small and large
businesses and Federal agencies, both union and non-union. VPP, OSHA's
premier recognition program, has become a powerful tool for reducing
workplace injuries and illnesses.
VPP's original focus was on establishing effective safety and
health management systems at individual fixed worksites where the
employer had responsibility and authority to control safety and health.
OSHA's experience with VPP Demonstration Programs and other cooperative
programs, and the public comments on its proposal in the Federal
Register to establish a VPP for Construction, 69 FR 53300, August 31,
2004, have demonstrated that the basic principles of site-based safety
and health management apply equally well to workforces that move from
one work project and location to another and whose employers may not
have controlling authority for safety and health.
[[Page 928]]
Therefore, VPP now changes from a primarily site-based program to
one that welcomes applications from both individual fixed worksites and
employers with mobile workforces. This change opens new opportunities
for participation by exemplary employers in the construction industry
plus mobile workforce employers in other industries. OSHA is pleased to
extend the benefits of VPP to these employers and employees.
In addition to its efforts to make VPP eligibility more inclusive,
OSHA has been experimenting with ways to make the VPP application and
review process more efficient and less resource-intensive for
applicants and the Agency. The VPP Corporate Pilot, operating since
2004, has tested new VPP processes for multi-facility applicants who
demonstrate a strong commitment to employee safety and health and VPP.
These applicants, typically large corporations or Federal agencies,
have adopted VPP on a broad scale for protecting the safety and health
of their employees.
OSHA has required VPP Corporate Pilot applicants and participants
to have established, standardized corporate-level safety and health
management systems that are effectively implemented organization-wide,
as well as internal screening processes for evaluating their
facilities' safety and health performance. Under the VPP Corporate
Pilot, OSHA has offered streamlined processes to eliminate redundancies
in application requirements and onsite review procedures while
continuing to perform careful onsite reviews of all applicant
facilities. The efficiencies tested successfully within this pilot have
encouraged numerous multi-facility employers to make an organization-
wide commitment to VPP. The lessons learned (discussed in Section II)
now enable OSHA to add to VPP the new option of corporate
participation.
Once the following revisions become effective, OSHA will move
current participants in its VPP Mobile Workforce Demonstration for
Construction and its VPP Corporate Pilot into the appropriate VPP
program (Star or Merit) and way to participate (site-based, mobile
workforce, or corporate).
B. Statutory Framework
The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et
seq. (hereinafter referred to as the OSH Act), was enacted ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources * *
*.''
Section 2(b) specifies the measures by which the Congress would
have OSHA carry out these purposes. The following are provisions which
represent the legislative authority applicable to the Voluntary
Protection Programs:
``* * * (1) by encouraging employers and employees in their
efforts to reduce the number of occupational safety and health
hazards at their places of employment, and to stimulate employers
and employees to institute new and to perfect existing programs for
providing safe and healthful working conditions;''
``* * * (4) by building upon advances already made through employer
and employee initiative for providing safe and healthful working
conditions;''
``* * * (5) * * * by developing innovative methods, techniques, and
approaches for dealing with occupational safety and health
problems;''
``* * * (13) by encouraging joint labor-management efforts to reduce
injuries and disease arising out of employment.''
C. States with OSHA-approved State Plans
As provided by Section 18 of the OSH Act, 26 States have received
OSHA approval to operate their own occupational safety and health
programs, which must be at least as effective as the Federal OSHA
program. Twenty-two of these State Plans cover both private and public
sector employees; four cover public sector only. The States have been
encouraged to establish their own VPPs parallel to the Federal VPP. All
States with OSHA-approved State Plans have established VPPs, submitted
documentation, and received approval from OSHA.
State VPPs may contain different participation categories,
processes, and criteria. Some States include programs that correspond
to OSHA's current Star, Merit and Demonstration Programs. Some States
already have expanded their construction industry VPP participation
options.
When the following revisions become effective, all State Plans will
be required to advise OSHA whether they intend to adopt similar changes
to their current programs, including the addition of mobile workforce
and corporate ways to participate. They will be asked to submit
documentation on any revisions for OSHA review. OSHA will make
available on its Web site summary information on the States' responses
to this Federal Program Change.
II. Discussion of the Changes
A. Mobile Workforce Participation
The construction industry, traditionally one of the nation's most
hazardous, has not been able to take full advantage of the benefits of
VPP participation. There are multiple reasons for the industry's
underrepresentation. These include:
VPP eligibility requirements traditionally apply to fixed
worksites ``controlled'' by the applicant. This alone rules out many
trades-oriented employers acting as subcontractors, for example,
plumbers, heating and ventilation workers, drywall installers, etc.
Many of these employers, nevertheless, have exceptional safety and
health management systems that proactively identify and protect their
workers from hazards, regardless of where they are working.
The short-term scope of some construction projects and the
mobile nature of the construction workforce have limited construction
industry participation in VPP.
A construction site, with its often hazardous and
frequently changing working conditions, presents unique challenges to
the development and implementation of an effective safety and health
management system.
OSHA, the Advisory Committee on Construction Safety and Health
(ACCSH), and industry representatives agree that making VPP a feasible
goal for small, medium, and large construction employers would
encourage a greater number of them to implement effective safety and
health management systems. In OSHA's experience, such systems are the
best way to reduce work-related injuries, illnesses, and fatalities.
To that end, OSHA implemented two VPP Demonstration programs in
1998 to evaluate alternative VPP criteria that, if successful, could
lead to greater construction participation. The Star Demonstration for
Short-Term Construction Projects involved construction employers and
subcontractors working at selected short-term worksites (12-18 months
duration). The program tested alternative VPP eligibility requirements
and procedures, and enabled OSHA to gain experience in how such
companies ensure safe and healthful work environments at multiple,
short-term construction sites. The Mobile Workforce Star Demonstration
Program gave companies whose employees travel from one site to another
and that typically do not ``control'' the worksite the opportunity to
demonstrate their ability to provide high level safety and health
protection for their mobile workforce. OSHA required participants in
both programs to maintain all four of the safety and health management
system elements of the traditional VPP--management leadership and
[[Page 929]]
employee involvement, worksite analysis, hazard prevention and control,
and safety and health training--at a level of excellence equal to VPP's
Star Program.
The documented success of those demonstrations, and especially a
modified demonstration within Region V's Cincinnati Area Office, led to
meetings in 2003 and 2004 with construction employers, trade
association representatives, and representatives of the Building and
Construction Trades Department, AFL-CIO.
OSHA, convinced of the importance and feasibility of bringing more
construction companies into VPP, proposed in Federal Register Notice 69
FR 53300, August 31, 2004, to establish a new VPP for Construction. The
Agency asked for comments on its proposal from stakeholders and the
general public.
OSHA received feedback from 18 commenters: two associations
representing VPP participants; two national unions; one association of
safety professionals; six trade associations representing construction
industry employers; three VPP participating companies; one construction
company outside VPP; and three private individuals. The numbered
sections below review comments relevant to major issues, the Agency's
subsequent decisionmaking, creation of the 2006 Mobile Workforce
Demonstration for Construction, and VPP revisions contained in this
notice.
Based on comments received in 2004 and further discussion within
the Agency, OSHA chose to continue exploring alternative VPP policies
and procedures for the construction industry in a new, nationwide VPP
Mobile Workforce Demonstration for Construction, launched in 2006. OSHA
welcomed applications from construction companies ranging from large,
controlling general contractors to small specialty trade contractors
whose employees moved frequently from site to site.
OSHA's various construction demonstrations have had the positive
effect of increasing construction industry participation in VPP. The
overall experience of these construction participants has been
outstanding. Construction employers who have participated in VPP
Demonstration Programs have achieved, as a group, Total Case Incidence
Rates (TCIR) and Days Away/Restricted/Transfer (DART) rates 54 percent
and 56 percent below published Bureau of Labor Statistics industry
rates (2006 VADS, OSHA's VPP data system). Their injury and illness
rate experience subsequent to entering VPP programs has been either on
par or below the overall VPP average rates for general industry.
1. Safety and Health Management System
Several commenters voiced concern that the proposed safety and
health management system for construction employers, which did not
differ significantly from the comprehensive system required of site-
based VPP participants, placed too great a burden on small construction
companies and failed to recognize the construction industry's
differences from other industries. Several commenters were particularly
critical of requiring site implementation plans for every work project.
OSHA's VPP experience provides ample evidence that VPP's safety and
health management system, which is performance-based and requires
participants to identify their specific hazards, needs, and appropriate
protective measures, provides sufficient flexibility and can be applied
to any industry. The experience of the early construction
demonstrations, as well as the ongoing experience of VPP's site-based
construction participants, shows that even small construction companies
are capable of working successfully with the VPP model, attaining VPP
approval, and maintaining VPP-quality systems and performance. The 2006
Mobile Workforce Demonstration bears out this earlier experience: As of
December 2007, 28 percent of all mobile workforce participants reported
fewer than 100 employees including contractor/subcontractor employees
(whose injury and illness experience is rolled up with regular
employees).
OSHA did recognize that requiring individual, comprehensive site
implementation plans might be an unnecessary and burdensome condition
of participation, and the Agency eliminated this feature in the
subsequent 2006 Demonstration Program. Moreover, OSHA decided to build
additional flexibility and sensitivity to construction workplace
conditions into the 2006 Demonstration by having applicants develop a
unique Participation Plan. This plan was limited to addressing elements
of the applicant's participation that differed in substance or emphasis
from the traditional VPP requirements, such as different employee
involvement strategies, baseline hazard analysis, and emergency
response and evacuation procedures. The Participation Plan has been a
valuable feature of the 2006 Demonstration and is now made part of the
mobile workforce way to participate (VI.C.1.b.).
2. Geographic Boundary for Participation
Some commenters questioned the need for construction company
participation boundaries defined by OSHA Region or Area Office. OSHA
understands that mobile construction operations do not adhere to
Federal agency boundaries. However, the Regions and Area Offices are
best able to establish close working relationships with mobile
workforce participants, and it is through these relationships that OSHA
is able to provide the cooperative dialogue and support that is
expected within VPP.
There may be companies whose very scattered work projects pose a
barrier to their mobile workforce participation. Site-based
participation may be appropriate for some of these companies. OSHA's
experience indicates that the vast majority of construction employers,
especially small employers whose operations tend to be more restricted
geographically, will be able to identify and participate within what
these revisions now identify as a Designated Geographic Area (DGA)
(VI.C.1.c.). Multiple DGAs have been utilized successfully by several
participants in the 2006 Demonstration to expand their participation to
more than one OSHA Area Office or Region.
3. Onsite Evaluations
Most comments dealing with the onsite evaluation process for
construction applicants/participants focused on:
The number of different worksites/projects OSHA would
evaluate during the approval process, and
The frequency of reapproval visits.
The proposed tiered approach (2-25 sites = 2 visits; 26-99 sites =
3 visits; 100+ sites = 4 visits) elicited both positive and negative
responses. Some commenters recommended more visits, some less, and some
recommended OSHA visit a percentage of sites. After considerable
discussion within the Agency, which included reference to OSHA's
unsuccessful attempt to implement a similar tiered approach within the
OSHA Strategic Partnership Program, OSHA decided to eliminate the
tiered approach. In many instances, it would obligate OSHA to perform
more inspection visits than a non-VPP participant typically would
receive, an impractical consequence that OSHA Partnership personnel
first reported.
In the 2006 Demonstration, OSHA tested a new approach that set a
[[Page 930]]
minimum of one visit and gave Regional Administrators the
responsibility and flexibility to decide, based on the complexity and
scope of an applicant's operations, whether and how many additional
sites should be visited.
Four commenters questioned OSHA's proposal to reevaluate
construction participants on a 2-year cycle. They argued that the
frequency of reevaluation should be consistent with the existing VPP
reevaluation schedule, which calls for Star reevaluations every 3 to 5
years. In the subsequent 2006 Demonstration, OSHA adhered to the
Demonstration Program requirement for reevaluation every 12 to 18
months. OSHA personnel administering the Demonstration found that a 12-
to 18-month frequency is unnecessary and burdensome. However, OSHA does
not believe that the site-based 3- to 5-year interval is appropriate,
given the dynamic, frequently changing sites/projects and conditions of
construction employers. OSHA has decided to reevaluate mobile workforce
Star participants within 18 to 24 months of initial approval, and
subsequently at no greater than 36-month intervals. While OSHA
recognizes the value of consistency across the programs, and has built
consistency into most areas of this revised VPP, the Agency believes
this differing reevaluation schedule is most likely to ensure worker
protection without overburdening the Agency and mobile workforce
participants.
4. Union Support for Participation
The mobile workforce way to participate contains a requirement for
documented union support that differs from the traditional, site-based
requirement. This change is grounded in OSHA's experience with VPP
construction applicants/participants.
When multiple unions represent employees at an applicant/
participant site or within a DGA, OSHA's willingness to consider less
than 100 percent union support first appeared in the proposal for a VPP
for Construction, 69 FR 53300, August 31, 2004. OSHA sought public
input on the complex question of how to assure union support when, ``At
a typical construction project, multiple unions may represent workers,
and different unions may represent workers at different phases of the
project. Some unions may represent many workers, others only a few.
Should OSHA require written support from some or all? What means should
OSHA accept as demonstrations of support? Should the requirement be
different for site-based applicants and [multi-site, mobile workforce]
applicants? How should OSHA respond if one of multiple authorized
representatives * * * subsequently withdraws support?''
OSHA received comments on this issue from nine respondents,
including two associations that represent VPP participants and employer
associations with both unionized and non-union member companies. At one
end of the spectrum was the recommendation to drop the requirement for
union support if the workforce is not fully unionized. At the other end
of the spectrum was the recommendation to continue the current site-
based requirement of 100 percent union support and thereby maintain
consistency throughout the VPP. Other commenters suggested various
degrees and methodologies of union support, depending on employer and
worksite circumstances.
After considering these comments and further internal Agency
discussion, OSHA, in its 2006 Mobile Workforce Demonstration for
Construction, introduced a compromise provision: When a majority of
employees are represented by unions, OSHA requires (in the
Demonstration) signed statements of support from enough unions to
represent a majority of all employees. This new approach continued to
recognize the importance of union support for VPP while, at the same
time, it recognized that obtaining 100 percent union support may not be
feasible at construction worksites. The notion of fairness also entered
into the decision to test an alternative requirement for union support.
Many VPP supporters, within the Agency, at approved VPP sites, and
elsewhere, have voiced concern over the years about the possibility of
a small minority preventing the VPP participation desired by the
majority.
OSHA's experience with the alternate union support requirement it
has been testing in the 2006 Mobile Workforce Demonstration for
Construction has been positive. There has been no problem implementing
the new requirement. For some Demonstration participants, union support
for participation within the participant's DGA has been obtained from
the local building trades council. For other participants, union
support has been obtained at the worksite level. OSHA has received no
objections to this policy from affected unions or any other parties and
now is applying it to the mobile workforce way to participate. The
existing union support requirement will continue for site-based
applicants/participants.
5. Extending Mobile Workforce Participation to All Industries
Over the years OSHA has been approached by various general industry
employers who do not perform all of their work tasks at an individual
fixed location. These include, but are not limited to, utilities,
couriers, and maintenance contractors. The experiences of these
employers have demonstrated to OSHA that it is possible for a general
industry employer to maintain a VPP-quality safety and health
management system for employees who complete some of their work tasks
away from a fixed worksite. The positive experience of these
participants, coupled with the experience of the 2006 Mobile Workforce
Demonstration for Construction, demonstrates that both construction and
general industry employers can successfully implement a safety and
health management system that encompasses mobile employees. Therefore,
the new VPP option of mobile workforce participation will be available
to any eligible employer whose workers move from one work location to
another and who meets VPP's rigorous requirements.
B. Corporate Participation
The continuing growth of VPP is a sign that businesses throughout
the U.S. are recognizing the value of implementing effective safety and
health management systems. As more companies come into VPP, ever
greater numbers of participating employers and employees benefit from
reduced injuries and illnesses and fewer workplace fatalities. VPP's
success, however, means that more and more applications must be
reviewed and onsite evaluations conducted. This has challenged OSHA
resources and encouraged the Agency to seek ways to administer the
program more efficiently.
Large employers who have committed to bringing multiple facilities
into VPP have also experienced resource challenges as they prepare
multiple individual applications that contain repetitive information
and then undergo multiple onsite evaluations. Seeking new ways to ease
the resource burden on these employers and also on OSHA, the Agency
established the VPP Corporate Pilot in 2004.
Prior to 2004, several VPP stakeholders had independently discussed
the burden of gathering and providing safety and health management
system information that was universal to all of their sites and needed
to be provided to OSHA each time a site applied for VPP. OSHA also
[[Page 931]]
recognized this burden--the Agency repeatedly had to review similar or
identical systems documentation when it reviewed applications from
multiple facilities of a single large organization.
The 2004 VPP Corporate Pilot provided a means to eliminate the
paperwork redundancies for both multi-facility applicants and OSHA
reviewers. Carefully selected participants underwent in-depth reviews
of their organization-wide safety and health management systems. An
important element of the review was verification of the participant's
active management commitment, not just to safety and health excellence,
but specifically to VPP. Pilot applicants also were required to provide
evidence of pre-screening and oversight of all facilities within their
organization, to ensure that the safety and health management system
was being implemented effectively.
Following the corporate-level evaluation of a pilot participant's
safety and health management system, OSHA sent VPP teams to each
applicant facility. The teams were able to focus on how managers and
employees implemented the safety and health system. These site reviews,
which typically were shorter in duration than normal VPP onsite
evaluations, consisted of employee and management interviews, a site
walkthrough, and a review of site-specific performance and systems
documentation.
OSHA learned that by eliminating the repetitious review of safety
and health management system documentation and focusing on system
implementation, it could reduce the Agency resource expenditure for
application and onsite review by 40 percent without affecting the
quality of that review. Similarly, pilot participants reported resource
savings of up to 50 percent in application preparation and time devoted
to OSHA's onsite visits.
The pre-screening required of pilot participants involved
corporate-level safety and health personnel performing audit activities
at each applicant facility to ensure that the facilities were ready for
VPP. Corporate personnel also reviewed their facilities' VPP
applications for completeness and accuracy. These efforts produced
impressive results: 94 percent of the 162 facilities undergoing onsite
evaluations in the Corporate Pilot achieved Star approval, well above
the 80 percent benchmark established for the pilot.
The pilot produced other, non-quantifiable results. Participants
reported an increased consistency in implementation of their safety and
health management system throughout their organization. OSHA also
believes it has achieved a greater level of consistency across Regions
in the procedures it uses to evaluate VPP applicants.
OSHA is also incorporating the concept of a Designated Geographic
Area (DGA) into the corporate way to participate. Both the VPP
Corporate Pilot and the Mobile Workforce Demonstration for Construction
have relied on a two-step evaluation process in which the first step is
an organizational safety and health management system review. This
review is designed to determine if the applicant has a VPP-quality
safety and health management system in place and the management
commitment required to effectively implement the system at the worksite
level. OSHA demonstrated that such a review is effective, whether the
applicant's facilities are coming into VPP individually (site-based
applicants) or as part of a DGA (mobile workforce applicants).
Incorporating the DGA concept into the corporate way to participate
provides employers with additional flexibility with regard to the
implementation and evaluation of their safety and health management
system. OSHA recognizes that there are significant differences among
the large employers willing to make the necessary commitment for
corporate participation. These organizations may find it appropriate to
seek participation at the individual site level, at multiple sites
within a DGA, or both. Upon completing the corporate safety and health
management system review, a participant can then choose either or both
of the two participation options tested. That is, a participant can
submit a streamlined application and undergo a streamlined onsite
evaluation for an individual location, or a participant can seek
participation by having OSHA visit a sampling of worksites within a
DGA. In either case, the applicant site/DGA will be subject to the
policies and requirements outlined in VI.B (site-based) or VI.C
(mobile).
The successful experience of OSHA's VPP Corporate Pilot leads the
Agency now to establish the new category of corporate participation.
This corporate option is available for multiple-facility employers who
have made a significant, organization-wide commitment to VPP and who
have fixed locations, mobile workforces, or both.
C. Reorganizing the VPP Criteria
VPP policy and participant requirements historically focused on the
three programs, Star, Merit, and Demonstration. For each of these
programs there was only one way to participate, individual site-based
participation. All safety and health management system requirements and
injury and illness performance requirements were embedded within the
Star Program. Merit and Demonstration Program provisions specified how
system and performance requirements differed from Star.
The backbone of VPP remains its safety and health management
system, and OSHA desires to emphasize this system's applicability and
feasibility for all types of industries, workplaces, and program
participants. Therefore, OSHA has created a specific section devoted to
the VPP safety and health management system. Other than minor
variations to accommodate the different ways to participate, the VPP
safety and health management system elements and sub-elements remain
consistent with past notices.
The addition of new ways to participate has prompted OSHA to
restructure VPP to clarify participation options and procedures. Each
way to participate is spelled out individually, with its unique
features, requirements, and evaluation processes. This has resulted in
what may appear to be unnecessary repetition within the Ways to
Participate Sections VI.B., C., and D. However, OSHA believes that this
format actually facilitates clarity. An interested employer can go to
one place within the notice to review relevant information and
requirements. OSHA hopes that its reorganization of VPP criteria, now
Sections III through VIII, will help employers and employees identify
the most appropriate way to participate and all related requirements of
the selected participation option.
D. Demonstration Program Modification
OSHA no longer will require that all Demonstration Program
participants maintain Star-level safety and health management systems
and injury and illness performance levels. Participants will be
required to adhere to the provisions of their particular demonstration.
In no circumstance will a demonstration allow approval below the
minimum Merit level requirements.
The basic intent of the Demonstration Program always has been to
enable OSHA to test alternate requirements and procedures. The
requirement for Star-level performance unnecessarily limits the
flexibility OSHA needs. OSHA believes its frequent onsite visits to
Demonstration participant sites and continuing review of participant
self-evaluations, coupled with the new minimum performance
requirements, provide sufficient oversight and needed flexibility. Any
Demonstration
[[Page 932]]
participants initially approved at the Merit level will be subject to
VPP requirement for continuous improvement and the Merit requirement to
achieve Star-level systems and performance.
E. Star Rate Reduction Plan and 1-Year Conditional Status
Over the years, OSHA has had difficulty implementing in a fair and
consistent manner the program's provisions that apply when a Star
participant's rates climb above required levels. Under current
procedures, if a participant's 3-year injury and illness rates slip
during the period between regularly scheduled OSHA reapproval visits,
OSHA must place the participant on a 2-year rate reduction plan. If
rates slip in a year when an OSHA team visits, OSHA must place the
participant on 1-year conditional status, and may also require a 2-year
rate reduction plan.
A problem arises when a participant fits the latter scenario but
has no identifiable safety and health management system deficiency.
Conditional status is inappropriate and, in fact, cannot be lifted
within the required 1-year timeframe because the participant may need
the allowed 2 years to return to Star-level rates.
Therefore, the change in these provisions is to correct an
unintended consequence of current rules. OSHA now may require a 2-year
rate reduction plan whenever a Star participant's rates exceed required
minimum levels. OSHA now may impose 1-year conditional status when an
OSHA onsite team identifies a deficiency in a Star participant's safety
and health management system.
F. Federal Agency Construction Activities
When OSHA opened VPP participation to Federal agencies, the Agency
did not anticipate that some applicant facilities might be engaged
primarily in construction activities. This revision makes clear that
all applicants primarily engaged in construction activities must follow
OSHA's construction regulations and VPP's additional construction
requirements. This includes the requirement to include in a
participant's injury and illness rates the experience of all employees,
including contractors.
G. Expectation of Continuous Improvement
The principle of continuous improvement is integral to the VPP
experience. Participants' required annual self-evaluations are intended
to measure success, identify ``what improvements can be made to make
[the safety and health management system] even more effective''
(Appendix C, VPP Policies and Procedures Manual, OSHA Directive CSP 03-
01-003), and determine goal modifications and needed and desirable
changes. OSHA evaluation teams, during their periodic visits, verify
this improvement and offer suggestions that will help participants
create ever more effective employee protections.
Whenever OSHA officials describe VPP to interested parties, they
stress that participants are expected to continuously improve. This
principle, which is explicit in the VPP Policies and Procedures Manual,
is now made explicit in this Federal Register notice in III.E.
Additional Expectations.
H. Expectation of Outreach and Mentoring Activity
VPP has a long history of participants voluntarily reaching out to
help other businesses, their industries and communities, and OSHA.
Through mentoring, technical assistance, participation in training,
presentations at conferences and other events, community service, and
involvement in the VPP Special Government Employee Program, VPP
participants have helped OSHA spread the message of effective safety
and health management.
OSHA recognizes VPP participants as the best safety and health
performers in the nation, the role models for others wishing to improve
safety and health for their employees. It is through outreach and
mentoring that VPP participants fulfill their responsibilities as role
models and cooperative partners with OSHA.
The Gallup Organization, in its 2005 study commissioned by the
Department of Labor, ``Evaluation of the Voluntary Protection
Program,'' included measuring the overall impact of VPP participants'
outreach and mentoring programs. The study found impressive benefits
and accomplishments in this area. For example, Gallup conservatively
estimated that VPP participants in 2004 had 2,365 people performing
mentoring activities that touched more than 529,000 employees beyond
VPP facilities. Gallup reported that, at the request of organizations
other than OSHA, VPP participants conducted outreach activities at a
cost of 30,000 hours in 2004. Responding to OSHA requests, participants
conducted an additional 41,400 hours of activity that year.
Because of the need for such activity and participants' well-
established track record, OSHA now believes that outreach and mentoring
should be stated principles of VPP. Therefore, they are made explicit
in this Federal Register notice in III.E. Additional Expectations.
III. The Voluntary Protection Programs
A. Purpose of the Voluntary Protection Programs
OSHA has long recognized that a multifaceted approach is the best
way to accomplish all the goals of the OSH Act. Employer compliance
with occupational safety and health standards, OSHA regulations, 29 CFR
part 1960 for Federal agencies, and the general duty clause--all the
requirements of the OSH Act--is essential. Regulations and enforcement
alone, however, cannot replace the understanding of work processes,
materials, and hazards that comes with employers' and employees' daily
on-the-job experience and commitment to workplace safety and health.
This knowledge, combined with an ability to evaluate and address
hazards rapidly, enables employers and employees to take responsibility
for their own safety and health in ways not available to OSHA.
OSHA's substantial experience with safety and health management
systems has shown the value of a comprehensive, systematic approach to
worker protection. The principles of safety and health management can
effectively prevent hazards and protect workers, whether implemented
for fixed worksites or mobile workforces. It is OSHA's policy,
therefore, to promote safety and health management systems tailored to
the needs of particular worksites and situations.
The purpose of the Voluntary Protection Programs (VPP) is to
emphasize the importance of, encourage the improvement of, and
recognize excellence in comprehensive employer-provided, employee-
participative occupational safety and health management systems in
meeting the goal of the OSH Act ``to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources * * *.'' This emphasis
is demonstrated through assistance to employers in their efforts to
reach the VPP level of systems and performance excellence; through
cooperation among government, labor, and management to resolve safety
and health problems; and through official recognition of employers and
employees who together have developed and implemented excellent safety
and health management systems. These systems provide the structures and
strategies for preventing or controlling occupational hazards.
[[Page 933]]
VPP participants are expected to effectively protect workers from
the hazards of the workplace. They do this by meeting VPP's rigorous,
time-testedcriteria for approval, continued participation, and
continuous improvement. Employers who develop and implement VPP-quality
systems not only are working to remain compliant with OSHA's rules, but
also are striving to excel. They use flexible and creative strategies
that go beyond OSHA's basic workplace requirements in a quest to
provide the best feasible protection for their workers.
VPP participants serve as models for effective employee protection
in their industries. Impressive reductions in injuries and illnesses--
participants' rates are well below industry averages--are the most
obvious evidence of VPP's success. Other performance measures, plus
anecdotal evidence and participant testimonials, reveal significant
cost savings, including workers' compensation cost reductions; reduced
employee turnover; improvements in the quality of participants'
products and services; and other benefits. Participants speak often of
the ``cultural transformation'' that can occur during the process of
preparing for application to VPP. These experiences are helping to
convince skeptics that productivity, quality, profitability, and safety
and health are complementary goals.
VPP participants enter into a new relationship with OSHA. In this
innovative public/private partnership, cooperation and trust nourish
improvements in safety and health, not just at VPP sites, but also
beyond the worksite boundaries. VPP companies are afforded the
opportunity to provide the Agency with input on safety and health
matters. At the same time, the recognition and status gained by their
participation in VPP, and their commitment to improving their
industries and communities, enable them to accomplish a broad range of
safety and health objectives. VPP participants mentor other worksites
interested in improving their safety and health management systems;
conduct safety and health training and outreach seminars; and hold
safety and health conferences that focus on leading-edge safety and
health issues. VPP participants also participate with OSHA on VPP
onsite reviews through the innovative VPP Special Government Employee
(SGE) Program. The SGE Program offers private and public sector safety
and health professionals and other qualified participants the
opportunity to exchange ideas, gain new perspectives, and grow
professionally while serving as full-fledged team members on OSHA's VPP
onsite evaluations.
One way OSHA recognizes VPP participants' safety and health
excellence is by removing them from programmed inspection lists for the
duration of their participation, unless they choose to remain on the
lists. This helps OSHA to focus its enforcement inspections on
establishments that are less likely to meet the requirements of the OSH
Act. However, OSHA continues to investigate valid employee safety and
health complaints, fatalities and catastrophes, and other significant
events at VPP sites according to established Agency procedures.
Participation in any of the programs does not diminish existing
employer and employee responsibilities and rights under the OSH Act
and, for Federal agencies, under 29 CFR part 1960. In particular, OSHA
does not intend to increase the liability of any party at an approved
VPP site. Employees or any representatives of employees taking part in
an OSHA-approved VPP safety and health program do not assume the
employer's statutory or common law responsibilities for providing safe
and healthful workplaces; nor are employees or their representatives
expected to guarantee a safe and healthful work environment.
The programs included in the VPP are voluntary in the sense that no
employer is required to participate. Compliance with OSHA's
requirements and applicable laws remains mandatory. Initial achievement
and then continuing maintenance of the VPP requirements are conditions
of participation.
The Assistant Secretary for Occupational Safety and Health
determines approval for initial participation in the VPP, advancement
to the Star Program, all participation in Demonstration Programs, and
termination from the VPP. The OSHA Regional Administrator who has
jurisdiction over a participant determines approval for continuation in
the Star (including 1-year Conditional Star participation) and Merit
Programs.
B. Purpose of This Notice
This notice describes the Voluntary Protection Programs, VPP's
constituent programs, the VPP Safety and Health Management System; how
to apply; ways to participate and criteria for approval; participation
decisions; and post-approval interactions.
C. Programs Within VPP
VPP consists of three programs: Star, Merit, and Demonstration.
The Star Program recognizes employers and employees who
demonstrate exemplary achievement in the prevention and control of
occupational hazards through the development, implementation, and
continuous improvement of their safety and health management systems.
The Merit Program recognizes employers and employees who
have developed and implemented good safety and health management
systems but who must take additional steps to reach Star quality.
The Demonstration Program recognizes employers and
employees who operate effective safety and health management systems
that differ from current VPP requirements. This program enables OSHA to
test the efficacy of different approaches.
1. The Star Program
a. Purpose
The Star Program recognizes leaders in occupational safety and
health who are successfully protecting workers from death, injury, and
illness by implementing comprehensive and effective safety and health
management systems. Star participants willingly share their experience
and expertise, and they encourage others to work toward comparable
success.
b. Experience Operating the Safety and Health Management System
All elements of a successful safety and health management system,
as delineated in Section IV. below, must be operating for a period of
not less than 12 months before Star approval.
c. Injury and Illness Performance Requirements
In order to qualify for the Star Program, applicants/participants
must meet and maintain certain injury and illness rate requirements.
For further specifics on these requirements, see the Injury and Illness
Performance sections at VI.B., C., and D.
2. The Merit Program
a. Purpose
The Merit Program recognizes employers and employees in any
industry who have implemented a safety and health management system
that in one or more elements does not yet meet the level of development
or performance required for the Star Program. If OSHA determines that
an applicant has demonstrated the commitment and possesses the
resources to achieve Star requirements within 3 years, then OSHA may
approve Merit Program participation. As a condition of Merit
participation, the applicant agrees to specified goals that,
[[Page 934]]
when achieved, will raise performance to the Star level.
b. Experience Operating the Safety and Health Management System
To qualify for the Merit Program, an eligible applicant must have a
written safety and health management system.
(1) The basic elements (management leadership and employee
involvement, worksite analysis, hazard prevention and control, and
safety and health training) must all be operational or, at a minimum,
in place and ready for implementation by the date of approval.
(2) The eligible applicant may not have met each of the specific
Star-level requirements comprising each basic element. Participation in
Merit is an opportunity for employers and their employees to work with
OSHA to more fully develop their safety and health management system
and improve its performance. The participant's safety and health
management system must be at Star quality within 3 years. For Star
quality system requirements, see IV. below.
c. Goals
In consultation with the applicant, OSHA will set goals intended to
bring the safety and health management system and its performance up to
Star level.
3. Demonstration Programs
a. Purpose
(1) Demonstration Programs provide the opportunity for
organizations and/or worksites to demonstrate the effectiveness of
alternative methods of achieving safety and health management system
excellence that could modify current VPP requirements. OSHA may approve
a Demonstration Program for such purposes as:
(a) Exploring the application of VPP in industries where OSHA lacks
substantial experience;
(b) Testing alternative application and approval protocols that may
expand VPP eligibility or serve other program objectives;
(c) Demonstrating the feasibility of joint Federal agency oversight
of VPP applicants/participants, including joint evaluations, in the
area of workplace safety and health.
(2) A Demonstration Program also may be used to test the potential
for a new program within VPP or another cooperative initiative.
b. Program Development and Approval
(1). OSHA will develop the basic parameters of a Demonstration
Program at the National Office or Regional level and will include a
clear outline of specific requirements.
(2) The decision to implement a Demonstration Program must be
approved by the Assistant Secretary before any applicants are
considered for participation.
c. Requirements for Demonstration Programs
(1) Safety and Health Management System Requirements. Demonstration
Program applicants must have a safety and health management system
that, at a minimum, addresses the basic VPP elements (management
leadership and employee involvement, worksite analysis, hazard
prevention and control, and safety and health training), plus 29 CFR
part 1960 requirements for Federal agencies and 29 CFR 1926.20
requirements for construction applicants. How the applicant implements
these elements may be the subject of demonstration.
(2) Applicants must demonstrate to the Assistant Secretary's
satisfaction that the alternative approach shows reasonable promise of
being successful and of leading to changes in VPP requirements.
(3) Injury/Illness Performance Requirements. A Demonstration
Program's injury/illness rate requirements will depend on the specific
provisions of the Demonstration.
d. Preapproval Onsite Evaluation
(1) Purpose. The preapproval onsite review, which OSHA conducts in
a non-enforcement capacity, is a review of the applicant's safety and
health management system and the effectiveness of the alternate
criteria being demonstrated. It is conducted to:
(a) Verify the information supplied in the application concerning
qualification for VPP;
(b) Identify the strengths and weaknesses of the applicant's safety
and health management system and evaluate its adequacy to address
hazards and to ensure compliance with all OSHA requirements;
(c) Determine how effectively the applicant has implemented its
safety and health management system;
(d) Identify any deficiencies in the applicant's safety and health
management system that must be satisfactorily addressed before OSHA
will approve the applicant; and
(e) Obtain information to assist the Assistant Secretary in making
the VPP approval decision.
(2) Duration and Scope. The duration and scope of the preapproval
onsite evaluation will depend on the specific provisions of the
demonstration. OSHA expects that the onsite evaluation normally will
include document review, walkthrough, and management and employee
interviews. For more information on what OSHA looks for during onsite
evaluations, see the Preapproval Onsite Review sections at VI.B., C.,
and D.
e. Term of Participation
Applicants may be approved to a Demonstration Program for the
period of time specified in the particular program. The term normally
will not exceed 5 years.
f. Periodic Reevaluation
(1) Purpose. Onsite reevaluation of Demonstration Program
participants is intended to:
(a) Determine continued qualification for the Demonstration
Program;
(b) Document results of Demonstration Program participation in
terms of the evaluation criteria and other noteworthy aspects of the
participant's safety and health management system;
(c) Ensure that the demonstration aspects of the program continue
to be effective and protect employees; and
(d) Identify any problems that have the potential to adversely
affect continued Demonstration Program qualification and determine
appropriate follow-up actions.
(2) Frequency. OSHA will reevaluate Demonstration Program
participants every 12 to 18 months.
(3) Duration and Scope. See III.C.3.d.(2) above.
g. Approval and Transition of Demonstration Program Participants to
Another VPP Program
(1) Approval to another VPP program is contingent upon:
(a) Successful demonstration of the alternatives tested within the
Demonstration Program;
(b) A decision by the Assistant Secretary that changing VPP
requirements to allow inclusion of these alternative provisions is
desirable and will result in a continuing high level of worker
protection. Once the Assistant Secretary decides to change VPP
requirements, the changes will be effective on the date announced to
the public.
(c) OSHA's satisfaction that the participant meets all requirements
of the VPP program to which it is transitioning.
(2) When the VPP changes become effective, a Demonstration
participant may be approved to another program within VPP without
submitting a new
[[Page 935]]
application or undergoing further onsite review, provided that the
approval occurs no later than 18 months following the last OSHA onsite
evaluation under the Demonstration Program. If more than 18 months have
elapsed, OSHA must conduct an onsite evaluation prior to recommending
the participant's approval to another program.
h. Demonstration Termination
(1) OSHA will terminate a Demonstration Program for the following
reasons:
(a) The Demonstration is likely to endanger participating workers;
(b) It is unlikely that the Demonstration will result in
participants' approval to another VPP program, creation of a new
program, or other VPP changes; or
(c) The Demonstration period has expired.
(2) When a Demonstration Program ends, any participants not
approved to another program within VPP will be terminated.
D. Guiding Principles
The following essential principles underlie all VPP participation.
An applicant/participant's failure to adhere to these principles is
grounds for disapproval or termination.
1. Safety and Health Management System Excellence
VPP applicants and participants must demonstrate, in the
development and ongoing implementation of their safety and health
management systems, a level of excellence commensurate with the
rigorous standards and performance requirements embodied within VPP.
VPP-quality safety and health management systems effectively identify,
analyze, and prevent/control hazards, thereby ensuring the protection
of employees and the prevention of workplace injuries and illnesses.
2. Cooperative Relationship
Based on the intent and history of VPP, OSHA expects participants
to work cooperatively and proactively with the Agency, both in the
resolution of safety and health problems and in the promotion of
effective safety and health management systems. This cooperation is
founded in an essential trust among labor, management, and OSHA.
Applicants often report that the experience of developing and
implementing a VPP-quality safety and health management system, with
its emphasis on active management leadership and meaningful employee
involvement, is a powerful catalyst for strengthening cooperation and
trust. OSHA facilitates cooperation by designating a contact person,
usually the Regional VPP Manager, who coordinates each approved
participant's contact with the Agency.
3. Employee Support for VPP Participation
a. Any application received by OSHA must reflect the support of
applicant's employees.
b. When an applicant's employees are unionized,
(1) The applicant may be required to provide evidence of support
from applicable collective bargaining representatives. For specific
requirements concerning union support for VPP participation, see the
Eligibility sections at VI.B., C., and D.
(2) Unions retain the right to withdraw support at any time. In
such event, OSHA will reevaluate the participant's continuing
qualification. If a union's withdrawal of support results in a
participant no longer meeting the VPP eligibility requirements of
VI.B., C., or D., OSHA will ask the participant to withdraw or will
terminate the participant from VPP.
4. Compliance with the OSH Act
All VPP applicants and participants will comply with the OSH Act,
OSHA requirements, and in the case of Federal agencies, 29 CFR part
1960. Any deficiencies related to compliance that are uncovered through
OSHA onsite reviews, self-inspections, employee reports, accident
investigations, process hazard reviews, annual self-evaluations, or any
other means must be corrected promptly. OSHA expects applicants/
participants to provide effective interim protection as necessary to
keep employees safe while corrections are being made.
5. OSHA History
If an applicant has been inspected by OSHA within the 36-month
period preceding application, the inspection, abatement, and/or any
other history of interaction with OSHA must indicate good faith
attempts to improve safety and health. Which aspects of an applicant's
history OSHA will examine depends on how the applicant proposes to
participate, that is, site-based, mobile workforce, or corporate
participation. For further specifics, see the Eligibility sections at
VI.B., C., and D.
6. Assurances
Applications to VPP must be accompanied by certain assurances
describing what the applicant agrees to do if OSHA approves the
application. Some of these assurances apply across the entire VPP.
Others differ slightly, depending on how the applicant proposes to
participate, that is, site-based, mobile workforce, or corporate
participation. See the Assurances sections at VI.B., C., and D.
E. Additional Expectations
The following provisions reflect longstanding aspects of VPP
participation that further define OSHA's expectations for VPP
participants:
1. Continuous Improvement
VPP participants must demonstrate continuous improvement in the
operation and impact of their safety and health management systems.
Annual VPP self-evaluations help participants measure success, identify
areas needing improvement, determine needed changes, and track the
implementation of these changes. OSHA onsite evaluation teams verify
this improvement.
2. Outreach
OSHA expects its VPP participants to serve as models of safety and
health excellence in their industries and their communities. This can
be accomplished in a variety of ways, including
a. Mentoring other worksites interested in improving safety and
health;
b. Participating and giving presentations at safety and health
conferences; training initiatives; meetings of labor, industry and
government groups; and other outreach opportunities;
c. Serving as Special Government Employees on VPP onsite evaluation
teams; and
d. Sharing best practices and success stories.
F. Recognition
When OSHA approves an applicant for participation in the VPP, the
Agency recognizes that the applicant is providing, at a minimum, the
basic elements of ongoing, systematic protection of workers in
accordance with rigorous VPP criteria. This protection makes general
schedule inspections unnecessary. Therefore, the employer's approved
site(s) are removed from OSHA's programmed inspection lists (unless the
participant chooses not to be removed). OSHA also publicizes VPP
participants' successes in a variety of ways, including stories on the
Agency's Web site, http://www.osha.gov; press releases and other Agency
media; and recognition during Agency officials' speeches and
presentations.
[[Page 936]]
The VPP symbols of recognition are plaques of approval and program
flags. The participant also may choose to use the VPP logo on such
items as letterhead, shirts, and mugs.
IV. The VPP Safety and Health Management System
This section sets forth the elements and sub-elements of the
comprehensive workplace safety and health management system required of
VPP participants.
A. Management Leadership and Employee Involvement
Each applicant must be able to demonstrate top-level management
leadership in its safety and health management system. Management
systems for comprehensive planning must address protection of worker
safety and health. Employees must be meaningfully involved in the
safety and health management system.
1. Commitment to Safety and Health Protection
Authority and responsibility for employee safety and health must be
integrated with the overall management system of the organization and
must involve employees. This commitment includes:
a. Policy. Clearly established policies for worker safety and
health protection that have been communicated to and understood by
employees; and
b. Goal and Objectives. Established and communicated goals for the
safety and health management system and results-oriented objectives for
meeting the goals, so that all members of the organization understand
the results desired and the measures planned for achieving them,
especially those factors that directly apply to them.
2. Commitment to VPP Participation
Management must clearly demonstrate commitment to meeting and
maintaining the requirements of the VPP.
3. Planning
Planning for safety and health must be a part of the overall
management planning process. In construction, this includes pre-job
planning and preparation for different phases of construction as the
project progresses.
4. Written Safety and Health Program
All critical elements of a basic safety and health management
system must be part of the written program. These critical elements are
management leadership and employee involvement, worksite analysis,
hazard prevention and control, and safety and health training. Federal
agencies' written programs must also meet the requirements of 29 CFR
part 1960, and construction companies' written programs must also meet
the requirements of 29 CFR 1926.20. All aspects of the safety and
health management system must be appropriate to the size of the
worksite(s) and the type of industry. For small businesses, OSHA may
waive some formal requirements, such as certain written procedures or
documentation, where the effectiveness of the systems has been
evaluated and verified. OSHA will decide waivers on a case-by-case
basis.
5. Management Leadership
Managers must provide visible leadership in implementing the safety
and health management system. This must include:
a. Establishing clear lines of communication with employees;
b. Setting an example of safe and healthful behavior;
c. Creating an environment that allows for reasonable employee
access to top site management;
d. Ensuring that all workers at the site, including contract
workers, are provided equally high quality safety and health
protection;
e. Clearly defining responsibility in writing, with no unassigned
areas. Each employee, at any level, must be able to describe his/her
responsibility for safety and health;
f. Assigning commensurate authority to those who have
responsibility;
g. Affording adequate resources to those who have responsibility
and authority. This includes such resources as time, training,
personnel, equipment, budget, and access to information and experts,
including appropriate use of certified safety professionals (CSP),
certified industrial hygienists (CIH), other licensed health care
professionals, and other experts as needed, based on the risks at the
site; and
h. Holding managers, supervisors, and non-supervisory employees
accountable for meeting their safety and health responsibilities. In
addition to clearly defining and implementing authority and
responsibility for safety and health protection, management leadership
entails evaluating managers and supervisors annually, and operating a
documented system for correcting deficient performance.
6. Employee Involvement
The site culture must enable and encourage effective employee
involvement in the planning and operation of the safety and health
management system and in decisions that affect employees' safety and
health. The requirement for employee participation may be met in a
variety of ways, as long as employees have at least three active and
meaningful ways to participate in safety and health problem
identification and resolution. This involvement must be in addition to
the individual right to notify appropriate managers of hazardous
conditions and practices and to have issues addressed. Examples of
acceptable employee involvement include but are not limited to the
following:
a. Participating in ad hoc safety and health problem-solving
groups;
b. Participating in audits and/or worksite inspections;
c. Participating in accident and incident investigations;
d. Developing and/or participating in employee improvement
suggestion programs;
e. Training other employees in safety and health;
f. Analyzing job/process hazards;
g. Acting as safety observers; and
h. Serving on safety and health committees constituted in
conformance to the National Labor Relations Act.
7. Contract Worker Coverage
All contractors and subcontractors, whether at general industry,
construction, maritime, or Federal agency VPP sites, must follow
worksite safety and health rules and procedures applicable to their
activities while at the site.
a. In addition to ensuring that contractors follow site safety and
health rules, VPP participants are expected to encourage their
contractors to develop and operate effective safety and health
management systems.
b. To this end, participants must have in place a documented
oversight and management system for contractors that ensures the
contractors' employees are provided effective protection and that
drives improvement in contractor safety and health. Such a system
should ensure that safety and health considerations are addressed
during the contractor selection process and when contractors are
onsite.
8. Self-Evaluation of the Safety and Health Management System
The applicant must have a system for annually evaluating the
organization's safety and health efforts. This system will judge
success in meeting goals and objectives, and will assist those
responsible to determine and implement changes for continually
improving worker safety and health protection.
[[Page 937]]
a. The system must provide for an annual written narrative report
with recommendations for timely improvements, assignment of
responsibility for those improvements, and documentation of timely
follow-up action or the reason no action was taken.
b. The evaluation must assess the effectiveness of all elements
described in Section IV and any other elements of the applicant's
safety and health management system.
c. The evaluation may be conducted by competent site, corporate, or
other persons who are trained and/or experienced in performing such
evaluations. The evaluation should follow the format established by
OSHA.
B. Worksite Analysis
The successful management of workplace hazards begins with a
thorough understanding of all hazardous situations to which employees
may be exposed and the ability to recognize and correct all hazards as
they arise. This requires:
1. Procedures to ensure analysis of all newly acquired or altered
facilities, processes, materials, equipment, and/or phases before use
begins, to identify hazards and the means for their prevention or
control.
2. Comprehensive safety and health surveys, at intervals
appropriate for the nature of workplace operations, which include:
a. Identification of safety hazards accomplished by an initial
comprehensive baseline survey and then subsequent surveys as needed;
b. Identification of health hazards and employee exposure levels
accomplished through an industrial hygiene sampling rationale and
strategy. Sampling rationale should be based on data including reviews
of work processes, material safety data sheets, employee complaints,
exposure incidents, medical records, and previous monitoring results.
The sampling strategy should include baseline and subsequent surveys
that assess employees' exposure through screening and full-shift
sampling when necessary; and
c. The use of nationally recognized procedures for all sampling,
testing, and analysis with written records of results.
3. Routine examination and analysis of safety and health hazards
associated with individual jobs, processes, or phases and inclusion of
the results in training and hazard control programs. This may include
job hazard analysis and/or process hazard review. In construction, the
emphasis must be on special safety and health hazards of each craft and
each phase of work.
4. A system for conducting, as appropriate, routine self-
inspections that follows written procedures or guidance and that
results in written reports of findings and tracking of hazard
elimination or control to completion.
a. For general industry and maritime applicants/participants under
the site-based way to participate, these inspections must occur no less
frequently than monthly and must cover the entire worksite at least
quarterly;
b. For construction sites opting for the site-based way to
participate and for all applicants/participants under the mobile
workforce way to participate, these inspections must cover the entire
worksite at least weekly and must involve trained employees.
5. A reliable system for employees, without fear of reprisal, to
notify appropriate management personnel in writing about conditions
that appear hazardous and to receive timely and appropriate responses.
The system must include tracking of responses and tracking of hazard
elimination or control to completion.
6. An accident/incident investigation system that includes written
procedures or guidance, with written reports of findings and hazard
elimination or control tracking to completion. Investigations are
expected to seek out root causes of the accident or event and to cover
``near miss'' incidents.
7. A system to analyze trends through a review of injury/illness
experience and hazards identified through inspections, employee
reports, accident investigations, OSHA logs, and/or other means, so
that patterns with common causes can be identified and the causes
eliminated or controlled.
C. Hazard Prevention and Control
Site hazards identified during the hazard analysis process must be
eliminated or controlled by developing and implementing the systems
discussed at IV.C.2. below and by using the hierarchy provided at
IV.C.3. below.
1. The hazard controls a site chooses to use must be:
a. Understood and followed by all affected parties;
b. Appropriate to the hazards of the site;
c. Equitably enforced through a clearly communicated, written
disciplinary system that includes procedures for disciplinary action or
reorientation of managers, supervisors, and non-supervisory employees
who break or disregard safety rules, safe work practices, proper
materials handling, or emergency procedures;
d. Written, implemented, and updated by management as needed, and
must be used by employees; and
e. Incorporated in training, positive reinforcement, and correction
programs.
2. The required systems of hazard prevention and control are:
a. A system for initiating and tracking hazard elimination or
control in a timely manner;
b. A written system for, and ongoing documentation of, the
monitoring and maintenance of workplace equipment such as preventive
and predictive maintenance, to prevent equipment from becoming
hazardous;
c. An occupational health care program that uses licensed health
care professionals to assess employee health status for prevention,
early recognition, and treatment of illness and injury; and that
provides, at a minimum, access to certified first aid and
cardiopulmonary resuscitation (CPR) providers, physician care, and
emergency medical care for all shifts within a reasonable time and
distance. Occupational health care professionals should be used as
appropriate to accomplish these functions; and
d. Procedures for response to emergencies on all shifts. These
procedures must be written and communicated to all employees; must list
requirements for personal protective equipment, first aid, medical
care, and emergency egress; and must include provisions for emergency
telephone numbers, exit routes, and training drills including, at a
minimum, annual evacuation drills.
3. The following hierarchy should govern actions to eliminate or
control hazards, with a. being the most desirable:
a. Engineering controls are the most reliable and effective type of
controls. These are design changes that directly eliminate (ideally) or
limit the severity and/or likelihood of the hazard, for example,
reduction in pressure/amount of hazardous material, substitution of
less hazardous material, reduction of noise produced, fail-safe design,
leak before burst, fault tolerance/redundancy, ergonomics, etc. This
category also includes protective safety devices such as guards,
barriers, interlocks, grounding and bonding systems, pressure relief
valves to keep pressure within a safe limit, etc. These latter types of
controls, although not as reliable as true engineering controls,
typically seek to reduce indirectly the likelihood of the hazard. These
controls are often linked with caution and warning devices like
detectors and alarms that are either automatic (do not
[[Page 938]]
require a human response) or manual (require a human response);
b. Administrative controls that significantly limit daily exposure
to hazards by control or manipulation of the work schedule or manner in
which work is performed, e.g., job rotation;
c. Work Practice controls, a type of administrative control that
includes workplace rules, safe and healthful work practices, and
procedures for specific operations. Work Practice controls modify the
manner in which an employee performs assigned work. This modification
may result in a reduction of exposure through such methods as changing
work habits, improving sanitation and hygiene practices, or making
other changes in the way the employee performs the job.
d. Personal protective equipment (PPE).
D. Safety and Health Training
Training is necessary to reinforce and complement management's
commitment to prevent exposure to hazards. All employees must
understand the hazards to which they may be exposed and how to prevent
harm to themselves and others from such hazard exposure. Effective
training enables employees to accept and follow established safety and
health procedures. Training for safety and health must ensure that:
1. Managers and supervisors understand their safety and health
responsibilities (see IV.A.) and are able to carry them out
effectively;
2. Managers, supervisors, and non-supervisory employees (including
contract employees) are made aware of hazards, and are taught how to
recognize hazardous conditions and the signs and symptoms of workplace-
related illnesses;
3. Managers, supervisors, and non-supervisory employees (including
contractor employees) learn the safe work procedures to follow in order
to protect themselves from hazards, through training provided at the
same time they are taught to do a job and through reinforcement;
4. Managers, supervisors, non-supervisory employees (including
contractor employees), and visitors on the site understand what to do
in emergency situations; and
5. Where personal protective equipment is required, employees
understand that it is required, why it is required, its limitations,
how to use it, and how to maintain it; and employees use it properly.
V. Application for VPP
A. General
VPP accepts applications from private sector general industry,
maritime, and construction employers subject to the Occupational Safety
and Health Act, and from Federal agencies subject to 29 CFR part 1960.
The VPP applicant must provide OSHA with information that illustrates
an effective safety and health management system.
There is no VPP application form. OSHA prepares, keeps current, and
makes available to all interested parties application guidelines that
explain the information to be submitted for OSHA review.
There is no single correct way to meet VPP requirements. OSHA
expects to see a system that works for the applicant's specific work
activities and hazards. OSHA encourages applicants to use as much
existing material as possible; there is no need to create a large
quantity of new documents.
B. Content
1. Eligible applicants must provide all information described in
the most current version of the relevant application instructions.
2. OSHA will request amendments to submitted applications when the
application information is insufficient to determine eligibility for
onsite review.
3. Materials needed to document the safety and health management
system that may involve trade secrets or employee privacy interests
must not be included in the application. Instead, such materials must
be described in the application and provided only for viewing at the
site during an application assistance visit and/or during the
preapproval onsite review.
C. Submission
The application and copies must be submitted to the appropriate
OSHA Offices, as specified in the application instructions. OSHA
normally will require applications be submitted electronically (on a CD
or by e-mail), but this requirement may be waived depending on
circumstances particular to the program, the applicant, or the OSHA
Office.
D. Acceptance of Application
1. OSHA conducts an initial review of each application to determine
whether it meets VPP criteria that can be substantiated by the
applicant's written safety and health management system and supporting
documentation. The applicant will be given the opportunity to improve
its application by submitting amended or additional materials.
2. If the application is incomplete, and if after notification the
applicant has not responded within 90 days to OSHA's request for more
information, the Agency will consider the application unacceptable and
will return it to the applicant. The applicant may reapply when its
application is complete.
E. Withdrawal of Application
1. Any applicant may withdraw a submitted application at any time.
When the applicant notifies OSHA of its desire to withdraw, OSHA will
delete any electronic application materials it holds, and will return
to the applicant any materials held in hard-copy format.
2. Once an application has been withdrawn, a new submission of an
application is required to be considered for VPP approval.
F. Public Access
The following documents will be maintained by OSHA for public
access beginning on the day the applicant attains VPP approval and
continuing for so long as the approved participant remains in VPP:
1. In the National Office: Participant general information from the
application; OSHA's preapproval report and subsequent evaluation
reports; the Regional Administrator's or Director of Cooperative and
State Programs' recommendation to the Assistant Secretary; and the
Assistant Secretary's and Regional Administrator's approval letters.
2. The National Office also will maintain the complete application
and related correspondence and amendments submitted by corporate
applicants.
3. In the Regional Office: For all VPP applicants except corporate,
the complete VPP application and amendments; preapproval report and
subsequent evaluation reports; the Regional Administrator's
recommendation to the Assistant Secretary via the Director of
Cooperative and State Programs; the Assistant Secretary's and Regional
Administrator's approval letters; any communications related to the
Area Office removing the approved participant from the general
inspection list; and related correspondence.
VI. Ways to Participate
A. Overview
1. This section details the three primary ways in which businesses
and other organizations can participate in
[[Page 939]]
VPP: Site-based, mobile workforce, and corporate. The general
principles and features of VPP-quality safety and health management
systems are generally consistent for all types of participation. These
principles can be found in IV. above.
2. There are some differences, however, in the details and
implementation of these systems, and how OSHA will evaluate applicants/
participants. These differences will depend on whether employees work
at a single fixed site or move from one work project to another, and
also whether an employer is applying individually or through a broader
corporate commitment to VPP. OSHA therefore offers, at VI.B., C., and
D. below, slightly differing requirements for the three participation
options.
3. Demonstration Programs may present unique features,
requirements, and processes that do not fit into a clear-cut VPP
category (way to participate, Star or Merit Program). For this reason,
Demonstration Programs are not addressed in this Ways to Participate
section. Parties interested in a Demonstration Program should refer to
III.C.3. above and the specific provisions of the Demonstration
announced by OSHA.
B. Site-Based Participation
1. Purpose
Site-based participation continues VPP's traditional acceptance of
applications from fixed worksites and some long-term construction
sites.
2. Eligibility
a. General. OSHA welcomes site-based VPP participation and accepts
VPP applications from the owners and site officials who control site
operations and have ultimate responsibility for assuring safe and
healthful working conditions of:
(1) Private-sector fixed worksites in general industry and the
maritime industry;
(2) Construction worksites/projects that will have been in
operation for at least 12 months at projected time of approval and that
expect to continue in operation for at least an additional 12 months;
and
(2) Federal-sector fixed worksites.
OSHA also welcomes applications from:
(3) Resident contractors at participating VPP sites for the
contractors' operations at those VPP sites. However, resident
contractors participating at two or more VPP sites may be eligible for
and prefer the mobile workforce way to participate (see VI.C.1.a.(2));
and
(4) Resident contractors at non-participating sites for the
contractors' operations at those sites, so long as the resident
contractors are part of a larger organization approved to participate
under the corporate option (see VI.D. below).
b. Unionized Sites. At fixed worksites with employees organized
into one or more collective bargaining units, the authorized
representative for each collective bargaining unit must either:
(1) Sign the application or
(2) Submit a signed statement indicating that the collective
bargaining agent supports or is not opposed to VPP participation.
Without such concurrence from all such authorized agents, OSHA will
not accept the application.
c. OSHA History. In addition to the general requirement concerning
an applicant's inspection history (see III.D.5.), the following applies
to site-based participation: The fixed worksite's history must include
no open investigations and no pending or open contested citations or
notices under appeal at the time of application, and no affirmed
willful violations during those prior 36 months.
3. Assurances
Site-based applications must include certain assurances describing
what the applicant agrees to do if OSHA approves the application. The
applicant must assure that:
a. Applicant will comply with the OSH Act and, in the case of
Federal agencies, 29 CFR part 1960, and will correct in a timely manner
all hazards discovered through self-inspections, employee notification,
accident investigations, an OSHA onsite review or enforcement
inspection, process hazard reviews, annual evaluations, or any other
means. The applicant will provide effective interim protection as
necessary to keep employees safe while corrections are being made.
b. Applicant will correct any site deficiencies related to
compliance with OSHA requirements and identified during the OSHA
preapproval onsite review. The correction period will be determined by
the VPP team leader and will not exceed 90 days.
c. Applicant, following approval, will continue to meet and
maintain the requirements of the elements. Site-based applicants whose
primary activity is construction will continue to meet and maintain the
construction requirements of the elements.
d. All employees, including newly hired employees and contractor/
subcontractor employees when they reach the site, will have the VPP
explained to them, including employee rights under the program and
under the OSH Act or 29 CFR part 1960.
e. All employees engaged in safety and health activities, including
those specifically given safety and health duties as part of
applicant's safety and health management system, will be protected from
discriminatory actions resulting from their activities/duties, just as
Section 11(c) of the OSH Act and 29 CFR 1960.46(a) protect employees
who exercise their rights.
f. Employees will have access to the results of self-inspections,
accident investigations, and other safety and health management system
data upon request. At unionized sites, this requirement may be met
through employee representative access to these results.
g. To enable OSHA to determine initial and continued VPP approval,
applicant will maintain and make available for OSHA review the
information listed below:
(1) Written safety and health management system;
(2) All documentation listed at VI.B.6.d. below; and
(3) Any agreements between management and the authorized collective
bargaining agent(s) concerning safety and health.
h. Applicant will make available to OSHA any data necessary to
evaluate the achievement of individual Merit or One-Year Conditional
goals not listed above.
i. Each year by February 15, each site-based participant will send
to its designated OSHA VPP contact (see VIII.A. below):
(1) The site's total recordable case incidence rate (TCIR) for
injuries and illnesses of all employees including temporary employees
for the previous calendar year and
(2) The site's incidence rate for cases involving days away from
work, restricted work activity, and job transfer (DART rate) of all
employees including temporary employees for the previous calendar year.
(3) Contractor data, the requirements for which differ for
construction and non-construction participants.
(a) Fixed worksite participants whose primary activity is
construction will include in the above rates and data required in
VI.B.3.i.(4) below the experience of all employees including temporary
employees and contractor/subcontractor employees.
(b) Fixed worksite participants whose primary activity is not
construction will send to the designated OSHA VPP contact site data on
each applicable contractor's employees. Applicable
[[Page 940]]
contractors are those employers who have contracted with the site to
perform certain jobs and whose employees worked a total of 1,000 or
more hours in at least 1 calendar quarter at the worksite.
The data will consist of the site's TCIR and DART rate for each
applicable contractor's employees; total number of cases from which
these two rates were derived; hours worked; and estimated average
employment for the past full calendar year.
(4) Each site will also submit:
(a) The total number of cases for each of the above two rates;
(b) Hours worked;
(c) Estimated average employment for the past full calendar year;
(d) A copy of the most recent annual self-evaluation of the site's
safety and health management system; and
(e) A description of any worksite success stories, for example,
reductions in workers' compensation rates, increases in employee
involvement in the program, etc.
j. Whenever significant organizational or ownership changes occur,
the site will provide OSHA within 60 days a new Statement of Commitment
signed by management and, when applicable, authorized collective
bargaining agents.
k. Whenever a change occurs in union representation/status, the
participant must notify the OSHA Regional Administrator in writing
within 60 days. The Regional Administrator will determine what steps,
if any, must be taken to reaffirm VPP support.
4. Injury and Illness Performance
In determining a site's qualification for the Star or Merit
Program, OSHA considers the most recent 3-year recordable injury and
illness experience and compares that experience with industry averages
published by the Bureau of Labor Statistics (BLS). Some sites may use
an alternative calculation of injury and illness experience based on
the best 3 out of the most recent 4 years (see c. below). The following
provisions govern the injury and illness performance requirements for
site-based Star and Merit approval.
a. Star Rate Requirements
(1) General industry, maritime, and Federal agency (however, see
Note below) site-based applicants at the time of approval must meet the
following employee performance criteria. Employees include all regular
site employees, including temporary and contractor employees who are
regularly intermingled with the owner's employees and under direct
supervision by management.
Note: Any Federal agency or other site-based applicant whose
work is primarily construction in nature must meet the performance
criteria for site-based construction applicants. See VI.B.4.a.(2)
below.
Two rates reflecting the experience of the most recent 3 calendar
years must be below at least 1 of the 3 most recent years of specific
industry national averages for nonfatal injuries and illnesses at the
most precise level published by BLS. OSHA will compare the two site
rates against the single year that is most advantageous to the site out
of the last 3 published years. These rates are:
(a) The 3-year total recordable case incidence rate (TCIR), a
single rate that reflects 3 years of total recordable injuries and
illnesses, and
(b) The 3-year incidence rate for cases involving days away from
work, restricted work activity, and job transfer (DART rate).
(2) The construction site-based applicant, including certain
Federal agencies and other applicants (see Note at VI.B.4.a.(1) above),
at the time of approval must meet the following criteria:
(a) The site for which VPP application is being made must have been
in operation for at least 12 months.
(b) OSHA will consider the applicant's TCIR and DART rate dating
from time of application back to site inception but in no instance
greater than 3 years (or 4 years if using the alternative method of
calculating rates, VI.B.4.c.). These two rates must include all workers
of all contractors/subcontractors and must be below the national
average for the type of construction at the site according to the most
appropriate and representative NAICS code. The site's NAICS code is
determined by the type of construction project, not individual trades.
b. Merit Rate Requirements
(1) For general industry, maritime, and Federal agencies, if the
applicant's 3-year TCIR and/or the applicant's 3-year DART rate for the
last 3 calendar years prior to approval does not meet the Star rate
requirements (VI.B.4.a.), the applicant must have a plan to achieve
Star rate requirements within 2 years. It must be statistically
possible to achieve this goal.
(2) For the construction industry and other applicants whose
primary work activity at the site is construction, if the incidence
rates for the applicant site are not below the industry averages as
required for Star, the applicant company must demonstrate that the
company-wide 3-year rates are below at least 1 of the 3 most recently
published years of BLS rates for the industry, at the most precise
published level. OSHA will compare the two company-wide rates against
the single year that is most advantageous to the applicant out of the
last 3 published years.
c. Alternative Rate Calculation
Some applicants, usually smaller worksites with limited numbers of
employees and/or hours worked, may use an alternative method for
calculating incidence rates. The alternative method allows the
applicant to use the best 3 out of the most recent 4 years' injury/
illness experience.
(1) To determine whether the applicant qualifies for the
alternative calculation method, do the following:
(a) Using the most recent employment statistics (hours worked in
the most recent calendar year), calculate a hypothetical total
recordable case incidence rate (TCIR) for the employer assuming that
the employer had two cases during the year;
(b) Compare that hypothetical rate to the 3 most recently published
years of BLS combined injury/illness total recordable case incidence
rates for the industry; and
(c) If the hypothetical rate (based on two cases) is equal to or
higher than the national average for the firm's industry in at least 1
of the 3 years, the employer qualifies for the alternative calculation
method.
(2) If the applicant qualifies for the alternative calculation
method, the best 3 of the last 4 calendar years may be used to
calculate both 3-year rates (specified in VI.B.4.a. and b. above).
5. Additional Safety and Health Management System Requirements
For site-based construction applicants/participants and others
whose primary work activity is construction, the following applies in
addition to the safety and health management system annual self-
evaluation requirements found at IV.A.8. above:
The self-evaluation must be conducted annually and immediately
prior to completion of construction. The final evaluation is to
determine what has been learned about safety and health activities that
can be used to improve the participant's safety and health management
system at other sites. If a participant does not provide this final
evaluation, OSHA will not consider subsequent VPP applications from the
participant.
[[Page 941]]
6. Preapproval Onsite Review of Site-Based Applicants
a. Purpose. The preapproval review, which OSHA conducts in a non-
enforcement capacity, is a review of the site's safety and health
management system. It is conducted to:
(1) Verify the information supplied in the application concerning
qualification for VPP;
(2) Identify the strengths and weaknesses of the applicant's safety
and health management system, and evaluate its adequacy to address the
site's hazards;
(3) Determine whether the applicant's safety and health management
system meets the requirements for Star or Merit approval;
(4) Determine how effectively the applicant has implemented its
safety and health management system;
(5) Identify any deficiencies in the applicant's safety and health
management system that must be satisfactorily addressed before OSHA
will approve the applicant;
(6) Determine whether the applicant is in compliance with OSHA
regulations; and
(7) Obtain information to assist the Assistant Secretary in making
the VPP approval decision.
b. Preparation. The review will be arranged at the mutual
convenience of OSHA and the applicant. The review team will consist of
a team leader; a back-up team leader (when needed); and health, safety,
and other specialists as required by the size of the site and the
complexity of its operations.
c. Duration. The time required for the preapproval onsite review
will depend upon the size of the site and the complexity of its
operations. Preapproval reviews usually average 4 days onsite, but may
be shorter or longer based on the decision of the Regional
Administrator or Regional VPP Manager.
d. Scope. All preapproval onsite reviews follow a three-pronged
strategy that assesses a site's safety and health management system by
means of document review, site walkthrough, and employee and management
interviews.
The onsite review will include a review of injury, illness, and
fatality records; recalculation and verification of the TCIR and the
DART rate (the two rates submitted with the application); a general
assessment of safety and health conditions to determine if the safety
and health management system adequately protects workers from the
hazards at the site; verification of compliance with OSHA and VPP
requirements; and verification that the safety and health management
system described in the application has been implemented effectively.
The review will include random formal and informal interviews with
relevant individuals such as members of any safety and health
committees, management personnel, randomly selected non-supervisory
employees, union representatives, and contract workers.
Onsite document review will entail examination of the following
records (or samples) if they exist and are relevant to the application
or to the safety and health management system. (OSHA will accommodate
trade secret concerns to the extent feasible.)
(1) Written safety and health management system;
(2) Management statement of commitment to safety and health and
union statement of support if applicable;
(3) The OSHA Form 300 log (or a successor OSHA form) for the site
and for all site contractor employees who are required to report;
(4) Safety and health manuals;
(5) Safety rules, emergency procedures, and examples of safe work
procedures;
(6) The system for enforcing safety rules;
(7) Reports from employees of safety and health problems and
documentation of management's response;
(8) Self-inspection procedures, reports, and correction tracking;
(9) Accident investigation reports and analyses;
(10) Safety and health committee minutes;
(11) Employee orientation and safety training programs and
attendance records;
(12) Baseline safety and industrial hygiene exposure assessments
and updates;
(13) Industrial hygiene monitoring records, results, exposure
calculations, analyses, and summary reports;
(14) Annual safety and health management system self-evaluations,
site audits, and, when needed to demonstrate that VPP criteria are
being met, corporate audits that a site voluntarily chooses to provide
in support of its application. The review of evaluative documents
needed to establish that the site is meeting VPP requirements will
cover at least the last 3 years and will include records of follow-up
activities stemming from self-evaluation recommendations;
(15) Preventive maintenance program and records;
(16) Accountability and responsibility documentation, for example,
performance standards and appraisals;
(17) Contractor safety and health programs, including applicable
contractor injury and illness data that non-construction site-based
participants must maintain (see VI.B.3.i.(3));
(18) Occupational health care programs and records;
(19) Available resources devoted to safety and health;
(20) Hazard and process analyses;
(21) Process Safety Management (PSM) documentation, if applicable;
(22) Employee involvement activities; and
(23) Other records that provide relevant documentation of VPP
qualifications.
7. Term of Participation
a. Star Program. A site-based participant's term of participation
in the Star Program is open-ended so long as the participant:
(1) Continues to maintain its excellent safety and health
management system as evidenced by favorable reevaluation by OSHA every
30 to 60 months; and
(2) Submits the annual information required, including annual rates
data and program self-evaluation (see VI.B.3.i.).
b. Merit Program. Site-based participants in the Merit Program are
approved for a period of time agreed upon in advance of approval but
not to exceed 3 years. The term will depend upon how long it is
expected to take the applicant to accomplish the goals for Star
participation. Merit participation terminates at the end of the term
unless approval for a second term is recommended and is approved by the
Assistant Secretary. Approval for a second term will be recommended
only when unanticipated unique circumstances slow the participant's
progress toward accomplishing the goals.
Note: For site-based construction participants in both the Star
and Merit Programs, participation ends with the completion of
construction work at the site.
c. Demonstration Programs. See III.C.3.e.
8. Periodic Reevaluation of Site-Based Participants--Star Program
a. Purpose. OSHA periodically conducts onsite reevaluations of Star
participants to:
(1) Determine continued qualification for the Star Program;
(2) Document results of program participation in terms of the
evaluation criteria and other noteworthy aspects of the site's safety
and health management system; and
(3) Identify any problems that have the potential to adversely
affect
[[Page 942]]
continued qualification and determine appropriate follow-up actions.
b. Frequency. OSHA will conduct the first reevaluation within 30 to
42 months of the initial Star approval or, in the case of a
Demonstration Program site that has been approved to Star, within 30 to
42 months of the last Demonstration evaluation. Subsequently, all site-
based Star participants will be reevaluated at no greater than 60-month
intervals. The identification of potentially serious safety and health
risks may create the need for more frequent evaluation.
c. Scope. OSHA's reevaluation of site-based Star Program
participants will consist mainly of an onsite visit similar in scope to
the preapproval review described in VI.B.6.d. OSHA will review the
documentation of system implementation since preapproval review or
since the previous evaluation.
(1) The evaluation will include a review of employee incidence
rates and supporting data specified at VI.B.4.
(2) For non-construction site-based participants, the review of
applicable contractor data (see VI.B.3.i.(3)) will be part of OSHA's
evaluation of the effectiveness of the site's contractor oversight and
management system. For construction site-based participants, the
performance of all contractors will be part of OSHA's evaluation (see
VI.B.4.).
d. Measures of Effectiveness. OSHA will use the following factors
in the reevaluation of site-based Star Program participants:
(1) Continued compliance with the program requirements and
continuous improvement in the safety and health management system;
(2) Satisfaction and continuing demonstrated commitment of
employees and management;
(3) Nature and validity of any complaints received by OSHA;
(4) Nature and resolution of problems that may have come to OSHA's
attention since approval or the last evaluation; and
(5) The effectiveness of employee involvement provisions within the
safety and health management system.
9. Periodic Reevaluation of Site-Based Participants--Merit Program
a. Purpose. OSHA periodically conducts onsite reevaluations of
Merit participants to:
(1) Determine continued qualification for the Merit Program, or
determine whether the participant may be approved to the Star Program;
(2) Determine whether adequate progress has been made toward the
agreed-upon Merit goals;
(3) Identify any problems in the safety and health management
system or its implementation that need resolution in order to continue
qualification or meet agreed-upon goals;
(4) Document system improvements and/or improved results; and
(5) Provide advice and suggestions for needed improvements.
b. Frequency. OSHA will conduct the first reevaluation of a site-
based Merit participant within 24 months (18 months is recommended) of
approval. The site may request an earlier reevaluation if it believes
it has met Star Program qualifications.
c. Scope. OSHA's reevaluation of site-based Merit participants will
consist mainly of an onsite visit similar in scope to the preapproval
review described at VI.B.6.c-d. OSHA will review documentation of
system implementation since the preapproval review or the previous
evaluation. The reevaluation will include a review of TCIR and DART
rates for both the site and its applicable contractor employees as
described at VI.B.4.
d. Measures of Effectiveness. OSHA will use the following factors
in the reevaluation of site-based Merit Program participants:
(1) Continued adequacy of the safety and health management system
to address the hazards of the workplace;
(2) Comparison of employer and contractor rates to the industry
averages;
(3) Satisfaction and continuing demonstrated commitment of
employees and management;
(4) Nature and validity of any complaints received by OSHA;
(5) Nature and resolution of problems that may have come to OSHA's
attention since approval or the last evaluation;
(6) The effectiveness of employee involvement provisions within the
safety and health management system; and
(7) Progress made toward goals specified in the preapproval or
previous evaluation report.
10. Periodic Reevaluation of Site-Based Participants--Demonstration
Program
See III.C.3.f.
C. Mobile Workforce Participation
1. Purpose and Distinguishing Features
a. Mobile workforce participation is intended for:
(1) Applicants/participants whose employees move physically from
one work project to another; and
(2) Applicants/participants whose employees work as resident
contractors at two or more fixed locations.
b. Participation Plan. Each applicant will develop a unique
Participation Plan that includes a discussion of safety and health
management system elements that differ in substance or emphasis from
the basic system requirements provided at IV above. This may include,
for example, management leadership and employee involvement strategies
that ensure employee protection, such as employees' ability to leave
the worksite if unsafe conditions exist; hazard analysis that uses
historical sampling data for a baseline; emergency response policies
and evacuation procedures appropriate to construction and other mobile
workforce projects; and other alternative approaches to safety and
health.
c. Designated Geographic Area (DGA). OSHA, after consulting with an
applicant and considering the applicant's preference, will define a
geographic area for VPP participation. The DGA will enable the
applicant to achieve VPP participation and receive OSHA recognition for
all its temporary work projects and resident contractor work projects
in the designated area. This contrasts with site-based participation
described at VI.B. above.
(1) A DGA cannot be smaller than an OSHA Area Office boundary and
cannot exceed an OSHA Regional Office boundary.
(2) OSHA will provide procedures for mobile workforce applicants
seeking to participate in, and approved participants seeking to expand
into, more than one Region.
(3) The DGA will become part of the applicant's Participation Plan.
2. Eligibility
a. General. OSHA welcomes mobile workforce VPP participation and
accepts VPP applications from:
(1) Private sector employers at various organizational levels in
the construction industry, general industry, and the maritime industry;
and
(2) Federal agency employers at various organizational levels.
b. Designated Geographic Area (DGA). The DGA will define the
physical boundaries of the applicant's VPP participation. See VI.C.1.c.
above.
(1) At time of application, the applicant must have at least one
active work project within the DGA.
(2) If the applicant has only one active work project within the
DGA at time of application, applicant must have at least one additional
work project scheduled to begin during the coming 12 months.
c. Unionized Workforce
(1) When, at the time of application, a majority of an applicant's
employees and contractor/subcontractor employees are represented by
unions, the applicant
[[Page 943]]
must provide to OSHA signed documentation that the unions either
support VPP participation or are not opposed to participation.
(2) OSHA expects each applicant to determine whether the
requirement for union support applies. Calculate the percentage of
employees (including temporary employees) and contractor/subcontractor
employees who are represented by unions at the time of VPP application.
Then use the chart below.
----------------------------------------------------------------------------------------------------------------
If . . . Then . . .
----------------------------------------------------------------------------------------------------------------
Majority of employees are represented by Signed statement(s) required. Must be obtained from enough unions
unions. to represent a majority of all employees.
Some employees but less than a majority of No statement of union support required.
all employees are represented by unions.
No employees are represented by unions...... Requirement not applicable.
----------------------------------------------------------------------------------------------------------------
(3) An applicant required to obtain union support must obtain
support from the authorized bargaining agents at its sites within the
DGA; individual local unions that represent the applicant's employees;
or, when appropriate, blanket support from a local, regional, or
national industry council. Without such concurrence, OSHA will not
accept the application.
(4) Where documented union support for VPP participation is not
required, OSHA still will evaluate, through onsite interviews,
employees' support for participation. A lack of employee support, for
any reason, will impact OSHA's decision on the applicant's
qualification. See Guiding Principles, Employee Support for
Participation, III.D.3.
d. OSHA History
In addition to the general requirement concerning an applicant's
inspection history (see III.D.5.), the following applies to mobile
workforce participation:
The applicant's history within the DGA must include no open
investigations and no pending or open contested citations or notices
under appeal at the time of application, and no affirmed willful
violations during those prior 36 months.
3. Assurances
Mobile workforce applications must include certain assurances
describing what the applicant agrees to do if OSHA approves the
application. The applicant must assure that:
a. Applicant will comply with the OSH Act and, in the case of
Federal agencies, 29 CFR part 1960, and will correct in a timely manner
all hazards discovered through self-inspections, employee notification,
accident investigations, an OSHA onsite review or enforcement
inspection, process hazard reviews, annual evaluations, or any other
means. The applicant will provide effective interim protection as
necessary.
b. Applicant will correct any site deficiencies related to
compliance with OSHA requirements and identified during the OSHA
preapproval onsite review. The correction deadline:
(1) Will depend on the length of the work project and the nature of
the deficiency;
(2) Will be determined by the OSHA VPP team leader; and
(3) In no instance will exceed 30 days.
c. The systems and procedures of the safety and health management
system are in place and effectively implemented at all work projects,
and management provides effective oversight, to assure VPP-quality
safety and health protection throughout the DGA.
d. Applicant, following approval, will continue to meet and
maintain the requirements of the elements.
e. All employees, including newly hired employees and contractor/
subcontractor employees, will have the VPP explained to them before
they perform any work. This explanation will include employee rights
under the program and under the OSH Act or 29 CFR part 1960.
f. All employees engaged in safety and health activities, including
those specifically given safety and health duties as part of
applicant's safety and health management system, will be protected from
discriminatory actions resulting from their activities/duties, just as
Section 11(c) of the OSH Act and 29 CFR 1960.46(a) protect employees
who exercise their rights.
g. Employees will have access to the results of self-inspections,
accident investigations, and other safety and health management system
data upon request. For a unionized workforce, this requirement may be
met through employee representative access to these results.
h. To enable OSHA to determine initial and continued VPP approval,
applicant will maintain and make available for OSHA review the
information listed below:
(1) Written safety and health management system;
(2) All documentation listed at VI.C.6.e-f. below; and
(3) Any agreements between management and the authorized collective
bargaining agent(s) concerning safety and health.
i. Applicant will make available to OSHA any data necessary to
evaluate the achievement of individual Merit or One-Year Conditional
goals and not listed above.
j. Each year by February 15, each mobile workforce participant will
send to its designated OSHA VPP contact (see VIII.A. below):
(1) The DGA's total recordable case incidence rate (TCIR) for
injuries and illnesses for the previous calendar year; and
(2) The DGA's incidence rate for cases involving days away from
work, restricted work activity, and job transfer (DART rate) for the
previous calendar year.
(3) The participant will also submit:
(a) The total number of cases for each of the above two rates;
(b) Total hours worked;
(c) Estimated average employment for the past full calendar year;
(d) A copy of the most recent annual self-evaluation of the
participant's safety and health management system; and
(e) A description of any success stories, for example, reductions
in workers' compensation rates, increases in employee involvement in
the program, etc.
k. Whenever significant organizational or ownership changes occur,
the mobile workforce participant will provide OSHA within 60 days a new
Statement of Commitment signed by management and, when applicable, any
authorized collective bargaining agents.
l. The percentage of employees represented by unions may change.
Therefore, an approved mobile workforce participant will report to
OSHA, as part of its annual evaluation, any change in this percentage
that
[[Page 944]]
would have the effect of changing the participant's union support
requirement.
m. When OSHA needs to visit a particular work project that the
mobile workforce applicant/participant does not control, the applicant/
participant will inform and should gain written permission from the
controlling employer (for example, the general contractor) for OSHA to
enter.
(1) In these instances, OSHA will provide reasonable notice prior
to its visit.
(2) Should the controlling employer refuse permission for OSHA to
enter, OSHA may consider visiting a different work project.
n. Project Lists
(1) Prior to OSHA's VPP preapproval onsite evaluation visit and
subsequent reevaluation visits, the applicant/participant will provide
OSHA with a list including addresses of all active work projects;
(2) If the applicant/participant is a controlling employer at any
work projects within the DGA, it will provide OSHA with a list
including addresses of all such active work projects and all such work
projects scheduled or expected for the next 12 months;
(a) Applicant/participant will submit this list annually as part of
the self-evaluation due by Feb. 15;
(b) For the purpose of VPP, a controlling employer is any entity at
a work location (such as a general contractor or manager at a
construction project) that controls project/site operations and has
ultimate responsibility for assuring safe and healthful work conditions
at the project/site.
4. Injury and Illness Performance
In determining a mobile workforce applicant's qualification for the
Star or Merit Program, OSHA considers the most recent 3-year recordable
injury and illness experience for all work conducted within the DGA
(including work conducted by contractors/subcontractors) and compares
that experience with industry averages published by the Bureau of Labor
Statistics. Some applicants may use an alternative calculation of
injury and illness experience based on the best 3 out of the most
recent 4 years (c. below). The following provisions govern the injury
and illness performance requirements for mobile workforce Star and
Merit approval. They also address a temporary policy that allows
applicants who do not maintain sufficient contractor/subcontractor data
to phase in their reporting of this required data.
a. Star Rate Requirements
The mobile workforce applicant at the time of approval must meet
the following employee performance criteria for the company's workforce
within the DGA.
(1) The workforce consists of all employees over whom the applicant
has responsibility and authority for safety and health, including
regular hires plus temporary, contractor, and subcontractor employees.
The term ``combined workforce rates'' as used here means injury and
illness rates calculated from data that combine an applicant's regular
workforce (which includes temporary employees) and its contractor/
subcontractor employees.
(a) It is the applicant's responsibility to maintain records of
hours worked by contractor/subcontractor employees under its control
within the DGA plus any recordable injuries and illnesses these
employees may experience.
(b) However, see VI.C.4.d. below for a phase-in of this combined
workforce rate requirement.
(2) Two combined workforce rates reflecting the experience of the
most recent 3 calendar years must be below at least 1 of the 3 most
recent years of specific industry national averages for nonfatal
injuries and illnesses at the most precise level published by the
Bureau of Labor Statistics (BLS). OSHA will compare the two DGA-wide
rates against the single year that is most advantageous to the
applicant out of the last 3 published years. These rates are:
(a) The 3-year total recordable case incidence rate (a single rate
that reflects 3 years of total recordable injuries and illnesses), and
(b) The 3-year incidence rate for cases involving days away from
work, restricted work activity, and job transfer (DART rate).
b. Merit Rate Requirements
If an applicant's 3-year TCIR and/or the applicant's 3-year DART
rate for the last 3 calendar years prior to approval does not meet the
Star rate requirements (immediately above), the applicant must have a
plan to achieve Star rate requirements within 2 years. It must be
statistically possible to achieve this goal.
c. Alternative Rate Calculation
Some applicants, usually smaller employers with limited numbers of
employees/contractors/subcontractors and/or hours worked, may use an
alternative method for calculating incidence rates. The alternative
method allows the applicant to use the best 3 out of the most recent 4
years' injury/illness experience.
(1) To determine whether the applicant qualifies for the
alternative calculation method, do the following:
(a) Using the most recent employment statistics (hours worked in
the most recent calendar year), calculate a hypothetical total
recordable case incidence rate for the employer assuming that the
employer had two cases during the year;
(b) Compare that hypothetical rate to the 3 most recently published
years of BLS combined injury/illness total recordable case incidence
rates for the industry; and
(c) If the hypothetical rate (based on two cases) is equal to or
higher than the BLS national average for the employer's industry in at
least 1 of the 3 years, the employer qualifies for the alternative
calculation method.
(2) If the applicant qualifies for the alternative calculation
method, the best 3 of the last 4 calendar years may be used to
calculate both 3-year rates (specified in VI.C.4.a above).
d. Phase-in of combined workforce rate requirement. OSHA expects to
receive a 3-year combined workforce rate from each mobile workforce
applicant. However, for a limited time period, a phase-in combined rate
requirement is available for applicants who do not maintain sufficient
contractor/subcontractor data.
Note: Mobile workforce participants who came into VPP as part of
the Mobile Workforce Demonstration for Construction, and who have
not completed that program's available phase-in, may continue their
phase-in schedule.
To apply using the phase-in policy:
(1) For the year 2009, as part of an applicant's mobile workforce
application, OSHA expects to receive:
(a) Combined workforce TCIR and DART rates for calendar year 2008,
plus
(b) Company-only rates (that include temporary employees) for
calendar years 2007 and 2006.
These 3 years of rates should reflect an applicant's nonfatal
injury and illness experience within the DGA only.
(2) For calendar year 2010, new applicants and participants who
applied using the phase-in rate requirement must provide to OSHA:
(a) Combined workforce TCIR and DART rates that reflect the
experience of the company's regular workforce (including temporary
employees) and contractors/subcontractors for calendar years 2008 and
2009, plus
(b) Company-only TCIR and DART rates (which include temporary
employees) for calendar year 2007.
[[Page 945]]
(3) Beginning January 1, 2011, all applicants and participants must
provide to OSHA combined workforce TCIR and DART rates for the 3 most
recent calendar years in the DGA. The data for each of these 3 calendar
years must reflect the experience of the company's regular workforce
(which includes temporary employees) combined with its contractors/
subcontractors at projects DGA-wide.
5. Additional Safety and Health Management System Requirements
a. The mobile workforce applicant's safety and health management
system must be fully established at the Star level and, therefore, must
incorporate all elements of the VPP safety and health management
system, as delineated at IV. above. Approval to either the Merit or
Star Program will be determined by the degree and effectiveness of
implementation at individual sites/projects.
b. Because the mobile workforce participant often relies on
contractor/subcontractor employees, contract worker coverage (addressed
at IV.A.7 above) is particularly critical for effective worker
protection. Therefore, a mobile workforce participant's safety and
health management system must provide thorough, documented oversight
and management of all contractors/subcontractors under its control.
This oversight and management must include specific procedures for
considering safety and health performance during the contractor
selection process. If circumstances prevent the selection of
contractors with a history of good safety and health performance, the
participant's management system must provide sufficiently rigorous
oversight to ensure the safety and health of all employees.
c. All mobile workforce applicants/participants must perform
routine self-inspections of all their active worksites within the DGA.
These self-inspections must follow written procedures or guidance,
involve trained employees, and result in written reports of findings
and tracking of hazard elimination or control to completion. Each
worksite must be covered in its entirety at least weekly.
6. Preapproval Onsite Review of Mobile Workforce Applicants
OSHA conducts a two-phased onsite review of mobile workforce
applicants. The first phase consists of an evaluation of the
applicant's safety and health management system. This is followed by a
second phase, during which OSHA conducts onsite evaluations of selected
temporary, currently active worksites/projects within the DGA.
a. Purpose. This two-phased preapproval review, which OSHA conducts
in a non-enforcement capacity, is intended to:
(1) Verify the information supplied in the application concerning
qualification for VPP;
(2) Identify the strengths and weaknesses of the applicant's safety
and health management system, and evaluate its adequacy to address the
hazards of the applicant's worksites/projects;
(3) Determine whether the applicant's safety and health management
system meets the requirements for Star approval;
(4) Determine how effectively the applicant has implemented its
safety and health management system at its sites/projects, and how
effectively it provides continuing oversight;
(5) Identify any deficiencies in the applicant's safety and health
management system that must be satisfactorily addressed before OSHA
will approve the applicant;
(6) Determine whether the applicant is in compliance with OSHA
regulations; and
(7) Obtain information to assist the Assistant Secretary in making
the VPP approval decision.
b. Preparation. The review will be arranged at the mutual
convenience of OSHA and the applicant. The review team will consist of
a team leader; a back-up team leader (when needed); and health, safety,
and other specialists as required by the complexity of applicant's
operations and the size and complexity of the worksites/projects OSHA
visits.
c. Duration. The time required for the preapproval onsite review
will depend upon the complexity of applicant's operations and the
number, size and complexity of the worksites/projects OSHA visits.
d. Scope. The preapproval onsite review for mobile workforce
applicants will consist of two phases: An evaluation of the applicant's
safety and health management system, and onsite evaluations of
temporary, currently active worksites/projects.
e. Phase 1: Safety and Health Management System Review. OSHA
initially will conduct an evaluation of the applicant's safety and
health management system to determine whether the system meets Star
requirements. It will include systems for ensuring implementation and
oversight of safety and health protection at all worksites/projects
within the DGA. This evaluation normally will take place at the fixed
location where the applicant maintains safety and health records
(typically the applicant's headquarters).
(1) Management Commitment. OSHA will carefully assess the
applicant's management commitment to safety and health and to VPP. This
assessment will include interviews with senior officials, employees,
and union representatives where applicable.
(2) Document Review. OSHA will examine the following records (or
samples) if they exist and are relevant to the application or to the
safety and health management system. (OSHA will accommodate trade
secret concerns to the extent feasible.)
(a) Written safety and health management system;
(b) Management statement of commitment to safety and health;
(c) The OSHA Form 300 log (or a successor OSHA form) for all sites/
projects within the DGA;
(d) Safety and health manuals;
(e) Safety rules, emergency procedures, and examples of safe work
procedures;
(f) The system for enforcing safety rules;
(g) Reports from employees of safety and health problems and
documentation of management's response;
(h) Self-inspection procedures, reports, and correction tracking;
(i) Accident investigation reports and analyses;
(j) Safety and health committee minutes;
(k) Employee orientation and safety training programs and
attendance records;
(l) Baseline safety and industrial hygiene exposure assessments and
updates;
(m) Industrial hygiene monitoring records, results, exposure
calculations, analyses and summary reports;
(n) Annual safety and health management system self-evaluations,
site audits, and, when needed to demonstrate that VPP criteria are
being met, corporate audits that an applicant voluntarily chooses to
provide in support of its application. The review of evaluative
documents needed to establish that the applicant is meeting VPP
requirements will cover at least the last 3 years and will include
records of follow-up activities stemming from self-evaluation
recommendations;
(o) Preventive maintenance program and records;
(p) Accountability and responsibility documentation, e.g.,
performance standards and appraisals;
(q) Contractor safety and health programs;
(r) Occupational health care programs and records;
[[Page 946]]
(s) Available resources devoted to safety and health;
(t) Hazard and process analyses;
(u) Process Safety Management (PSM) documentation, if applicable;
(v) Employee involvement activities; and
(w) Other records that provide relevant documentation of VPP
qualifications.
(3) Rates Review. OSHA will review DGA-wide injury, illness, and
fatality records; and recalculate and verify the TCIR and the DART rate
(the two rates submitted with the application).
f. Phase 2: Site/Project Evaluation. OSHA then will visit one or
more temporary worksites/projects within the DGA. These worksite
evaluations will assess how effectively the applicant has implemented
its safety and health management system, including its system of
oversight. The OSHA team will employ a strategy of site walkthrough,
employee interviews, and site-specific document review.
(1) Site Walkthrough. The site walkthrough is a general assessment
of safety and health conditions. It aims to determine whether the
safety and health management system described in the application has
been implemented effectively and is adequately protecting workers from
site hazards. The walkthrough also will verify compliance with OSHA and
VPP requirements.
(2) Interviews. The review will include random formal and informal
interviews with relevant individuals, such as members of any safety and
health committees, management personnel, randomly selected non-
supervisory employees, temporary employees, union representatives, and
contract workers.
(3) Site-Specific Document Review. OSHA will examine documents that
demonstrate the site's implementation of applicant's safety and health
management system, for example, specific rules regarding site hazards
and site operations.
(4) Whenever possible, the onsite evaluations that OSHA conducts
will be unannounced.
(5) However, when OSHA needs to visit a site that an applicant does
not control,
(a) OSHA will provide reasonable notice prior to its visit;
(b) The applicant must inform and gain written permission from the
controlling employer (for example, the general contractor) for OSHA to
enter; and
(c) The applicant must inform the controlling employer that, while
OSHA will focus primarily on the applicant's work at the site, any
conditions (including those created by others) that OSHA views and
deems a violation must be abated immediately or confirmed as abated
according to an abatement plan approved by OSHA. In the VPP spirit of
cooperation, OSHA will take no enforcement actions and issue no
citations if the hazardous conditions are corrected immediately or with
an OSHA-approved abatement plan. Only if correction does not occur will
OSHA have the option to exercise normal enforcement procedures.
(6) Number of Site/Project Evaluations. The number of site/project
evaluations will depend on the complexity and scope of applicant's
operations and the number of sites/projects within the DGA, and will be
determined by the Regional Administrator.
(7) Evaluation of Fixed Locations. Some applicants may conduct
certain operations at fixed locations, such as a headquarters,
warehouse, or construction yard, that impact the safety and health of
the applicant's mobile workforce. OSHA reserves the right to evaluate
these fixed locations, although they will not be considered a worksite
for purposes of mobile workforce participation. Should an applicant
desire to bring such fixed work locations into VPP, OSHA will accept
applications under VPP's site-based participation requirements, as
provided in VI.B. above.
7. Term of Participation
a. Star Program. A mobile workforce participant's term of
participation in the Star Program is open-ended so long as the
participant:
(1) Continues to maintain its excellent safety and health
management system at its sites/projects within the DGA as evidenced by
favorable reevaluation; and
(2) Submits the annual information required, including annual rates
data and program self-evaluation (see VI.C.3.j. above).
b. Merit Program. Mobile workforce participants in the Merit
Program are approved for a period of time agreed upon in advance of
approval but not to exceed 3 years. The term will depend upon how long
it is expected to take the applicant to accomplish the goals for Star
participation. Merit participation terminates at the end of the term
unless approval for a second term is recommended and is approved by the
Assistant Secretary. Approval for a second term will be recommended
only when unanticipated unique circumstances slow the participant's
progress toward accomplishing the goals.
c. Demonstration Program. See III.C.3.e.
8. Periodic Reevaluation of Mobile Workforce Participants--Star Program
a. Purpose. Periodic evaluation of Star participants is intended
to:
(1) Determine continued qualification for the Star Program;
(2) Document results of program participation throughout the DGA in
terms of the evaluation criteria and other noteworthy aspects of the
participant's safety and health management system; and
(3) Identify any problems that have the potential to adversely
affect continued qualification and determine appropriate follow-up
actions.
b. Frequency.
(1) OSHA will conduct the first post-approval reevaluation of a
mobile workforce participant's sites/projects within 18 to 24 months of
the initial Star approval or, in the case of a Demonstration Program
participant that has been approved to Star, within 18 to 24 months of
the last Demonstration evaluation.
(2) Subsequently, OSHA will reevaluate sites/projects within the
DGA at no greater than 36-month intervals. The identification of
potentially serious safety and health risks may create the need for
more frequent evaluation.
(3) OSHA will reevaluate the participant's safety and health
management system, normally at the participant's headquarters,
beginning with the second post-approval reevaluation (see VI.C.8.b(2)
above), and subsequently at the time of every second reevaluation
period.
c. Scope. OSHA's reevaluation of mobile workforce Star Program
participants will consist mainly of site/project visits and/or safety
and health management system reviews similar in scope to the
preapproval review described in VI.C.6.e-f. above. OSHA will review the
documentation of system implementation since preapproval review or
since the previous evaluation. The evaluation will include a review of
DGA-wide incidence rates and supporting data (specified in VI.C.4.
above) for all employees including temporary workers and contractor/
subcontractor employees throughout the DGA for the latest 3 complete
calendar years.
d. Measures of Effectiveness. OSHA will use the following factors
in the evaluation of mobile workforce Star Program participants:
(1) Continued compliance with the program requirements and
continuous improvement in the safety and health management system;
[[Page 947]]
(2) Satisfaction and continuing demonstrated commitment of
employees and management;
(3) Nature and validity of any complaints received by OSHA;
(4) Nature and resolution of problems that may have come to OSHA's
attention since approval or the last evaluation; and
(5) The effectiveness of employee involvement provisions within the
safety and health management system.
9. Periodic Reevaluation of Mobile Workforce Participants--Merit
Program
a. Purpose. Periodic reevaluation of Merit participants is intended
to:
(1) Determine continued qualification for the Merit Program, or
determine whether the participant may be approved for the Star Program;
(2) Determine whether adequate progress has been made toward the
agreed-upon Merit goals;
(3) Identify any problems in the safety and health management
system or its implementation that need resolution in order to continue
qualification or meet agreed-upon goals;
(4) Document system improvements and/or improved results; and
(5) Provide advice and suggestions for needed improvements.
b. Frequency.
(1) OSHA will reevaluate a mobile workforce participant's sites/
projects every 12 to 18 months or, in the case of a Demonstration
Program participant that has been approved to Merit, every 12 to 18
months following the last Demonstration evaluation. The identification
of potentially serious safety and health risks may create the need for
more frequent evaluation.
(2) The participant may request an earlier reevaluation if it
believes it has met Star Program qualifications.
(3) OSHA will reevaluate the participant's safety and health
management system, normally at corporate headquarters, before making
any recommendation to advance the participant to the Star Program.
c. Scope. OSHA's reevaluation of mobile workforce Merit Program
participants will consist mainly of site/project visits and safety and
health management system reviews similar in scope to the preapproval
review described in VI.C.6.e-f. above. OSHA will review the
documentation of system implementation since preapproval review or the
previous evaluation. The reevaluation will include a review of DGA-wide
incidence rates and supporting data (specified in VI.C.4. above) for
all employees including temporary workers and contractor/subcontractor
employees throughout the DGA for the latest 3 complete calendar years.
d. Measures of Effectiveness. OSHA will use the following factors
in the reevaluation of mobile workforce Merit Program participants:
(1) Continued adequacy of the safety and health management system
to address the hazards at sites/projects throughout the DGA;
(2) Comparison of injury/illness rates to the industry average;
(3) Satisfaction and continuing demonstrated commitment of
employees and management;
(4) Nature and validity of any complaints received by OSHA;
(5) Resolution of problems that have come to OSHA's attention;
(6) The effectiveness of employee involvement provisions within the
safety and health management system; and
(7) Progress made toward goals specified in the preapproval or
previous evaluation report.
10. Periodic Reevaluation of Mobile Workforce Participants--
Demonstration Program.
See III.C.3.f.
D. Corporate Participation
The corporate way to participate may be appropriate for large
organizations that have committed to bringing multiple facilities into
VPP.
1. Purpose and Distinguishing Features
a. Corporate participation is intended for applicants/participants
who:
(1) Are committed to achieving VPP approval for multiple specified
individual sites and/or sites within Designated Geographic Areas (DGAs)
within their organization;
(2) Utilize a well-established, standardized safety and health
management system at all sites and/or DGAs seeking VPP approval; and
(3) Employ prescreening processes to ensure that their sites have
effectively implemented the safety and health management system,
addressed site-specific hazards, satisfied the VPP requirements, and
completed all sections of the application before submitting it to OSHA.
b. Streamlined application and onsite evaluation processes.
Organizations who achieve corporate VPP status are able to utilize
streamlined application and onsite evaluation processes to bring into
VPP individual sites or all sites within a DGA. These streamlined
processes focus on implementation of the corporation's standardized
safety and health policies and systems and any site-specific programs.
Typically, less time is required for application preparation and review
and the onsite evaluation, because:
(1) OSHA completes its evaluation of the corporation's standardized
safety and health management system before focusing on individual
sites/DGAs; and
(2) Before individual sites/DGAs apply under this option, they
first undergo extensive screening processes, conducted by corporate
personnel, to ensure readiness for VPP.
Individual sites/DGAs that come into VPP continue to be subject to
the policies and requirements outlined in VI.B (site-based) and VI.C
(mobile) above.
2. Eligibility
a. General. OSHA welcomes corporate VPP participation and accepts
VPP applications from:
(1) Employers at various organizational levels in general industry,
the construction industry, and the maritime industry; and
(2) Federal agencies.
All applicants must have a demonstrated working knowledge and
experience of VPP, either through the traditional site-based program or
the mobile workforce approach, and must have resources dedicated to
establishing VPP throughout the organization.
b. Unionized Organizations. Organizations whose employees are
organized into one or more collective bargaining units may wish to
involve the unions during the corporate approval process. Individual
sites/DGAs applying for VPP through the streamlined corporate
application and onsite evaluation processes must adhere to the policies
set forth in sections VI.B.2.b and VI.C.2.c above.
c. OSHA History. In addition to the general requirement concerning
an applicant's inspection history (see III.D.5.), the following applies
to corporate participation:
The applicant must not have any affirmed willful violations
organization-wide during its most recent 36-month period. The
applicant's history may include open investigations and/or pending or
open contested citations or notices under appeal at the time of
application. However, OSHA will review the applicant's most recent 36-
month history for evidence of an overarching safety and health
management system deficiency or events/actions that call into question
the cooperative spirit and trust inherent in the VPP relationship (see
III.D.1.).
3. Assurances
Corporate applications must include certain assurances describing
what the
[[Page 948]]
applicant agrees to do if OSHA approves the application. The applicant
must assure that:
a. Applicant will comply with the OSH Act and, in the case of
Federal agencies, 29 CFR part 1960, and will correct in a timely manner
all hazards discovered through self-inspections, employee notification,
accident investigations, an OSHA onsite review, process hazard reviews,
annual evaluations, or any other means. The applicant will provide
effective interim protection as necessary.
b. Applicant will correct any deficiencies related to compliance
with OSHA requirements and identified during the OSHA preapproval
onsite reviews. The correction deadline:
(1) Will depend on the nature of the deficiency;
(2) Will be determined by the OSHA VPP team leader; and
(3) In no instance will exceed 90 days.
c. A system for overseeing and monitoring safety and health
management system implementation is maintained for all worksites/
projects.
d. A system is maintained for pre-screening site/DGA readiness for
VPP, so that at least 80 percent of an organization's site/DGA
applicants are sufficiently qualified to achieve Star approval.
e. Applicant, following approval, will continue to meet and
maintain the requirements of the VPP safety and health management
system elements.
f. Applicant will bring no fewer than 10 sites and/or DGAs into VPP
within 5 years of corporate approval, and then will continue to bring
sites/DGAs into VPP.
g. Applicant has established and will maintain a documented,
corporate-wide goal for VPP participation. Applicant will communicate
this goal to employees organization-wide.
h. At applicant and approved sites, all employees, including newly
hired employees and contractor/subcontractor employees, will have the
VPP explained to them before they perform any work. This explanation
will include employee rights under the program and under the OSH Act or
29 CFR part 1960.
i. All employees engaged in safety and health activities, including
those specifically given safety and health duties as part of
applicant's safety and health management system, will be protected from
discriminatory actions resulting from their activities/duties, just as
Section 11(c) of the OSH Act and 29 CFR 1960.46(a) protect employees
who exercise their rights.
j. Employees will have access to the results of self-inspections,
accident investigations, and other safety and health management system
data upon request. For a unionized workforce, this requirement may be
met through employee representative access to these results.
k. To enable OSHA to determine initial and continued VPP approval,
applicant will maintain and make available for OSHA review the
information listed below:
(1) Written safety and health management system;
(2) All documentation listed at VI.D.6.d. below; and
(3) Any agreements between management and the authorized collective
bargaining agent(s) concerning safety and health.
l. Applicant will make available to OSHA any data not listed above
that is necessary to evaluate identified deficiencies.
m. Each year by February 15, each corporate participant will send
to its designated OSHA VPP contact (see VIII.A. below) data that will
enable OSHA to evaluate its overall VPP performance and compare that
performance to the organization's non-participating sites. This data
will include:
(1) Total recordable case incidence rate (TCIR) for injuries and
illnesses at all approved sites for the previous calendar year;
(2) Total recordable case incidence rate (TCIR) for injuries and
illnesses at all non-VPP sites for the previous calendar year;
(3) Total recordable incidence rate for cases involving days away
from work, restricted work activity, and job transfer (DART rate) at
all approved sites for the previous calendar year;
(4) Total recordable incidence rate for cases involving days away
from work, restricted work activity, and job transfer (DART rate) at
all non-VPP sites for the previous calendar year;
(5) The participant will also submit:
(a) Total number of cases and hours worked for each of the above
four rates;
(b) Number and percentage of U.S.-based VPP-approved facilities for
the past full calendar year;
(c) Number and percentage of U.S.-based employees participating in
VPP for the past full calendar year;
(d) A list of applications submitted during the past full calendar
year, and a list of projected applications for the current full
calendar year;
(e) Any corporate-level safety and health management system policy/
procedure changes;
(f) Any major changes in corporate management or structure;
(g) Information on Special Government Employee, mentoring, and
other outreach activities for the past full calendar year; and
(h) Corporate-wide success stories/best practices.
n. Whenever significant organizational or ownership changes occur,
the corporate participant will provide OSHA within 60 days a new
Statement of Commitment signed by management and, when applicable, any
authorized collective bargaining agents.
4. Injury and Illness Performance
There are no organization-wide injury and illness rate requirements
for organizations desiring to come into VPP via the corporate way to
participate. OSHA will examine, however, injury and illness trends
during its review of an applicant's safety and health management
system. After OSHA approves an organization under the corporate option,
the individual sites/DGAs that apply are subject to the VPP rate
requirements of a program (Star or Merit) and the chosen manner of
participation (site-based or mobile workforce).
5. Additional Safety and Health Management System Requirements
a. The corporate applicant's safety and health management system
must be fully established at the Star level and, therefore, incorporate
all elements of the VPP safety and health management system, as
delineated in IV. above. OSHA may approve individual sites/DGAs to
either the Star or Merit Program, depending on the degree and
effectiveness of safety and health management system implementation.
OSHA expects that at least 80 percent of an organization's sites/DGAs
will achieve Star approval.
b. Pre-screening. A corporate applicant must have effective
internal pre-screening processes to evaluate its sites/DGAs' level of
preparedness to participate in VPP. VPP pre-screening processes are
required for evaluating the implementation of the safety and health
management system at each candidate site/DGA and the completeness of
the VPP application prior to submission to OSHA.
c. A corporate applicant's safety and health management system must
provide thorough, documented oversight, management, and evaluation of
employee safety and health at all sites/DGAs.
6. Preapproval Onsite Review of a Corporate Applicant's Safety and
Health Management System
When an organization chooses the corporate way to participate, the
first step in OSHA's preapproval onsite
[[Page 949]]
review process will be an evaluation of the applicant's standardized
safety and health management system. This will be followed by onsite
evaluations of all applicant sites/DGAs.
a. Purpose of the Safety and Health Management System Review. This
preapproval review, which OSHA conducts in a non-enforcement capacity,
is intended to:
(1) Verify the information supplied in the application concerning
qualification for VPP;
(2) Identify the strengths and weaknesses of the applicant's safety
and health management system, and evaluate its adequacy to address the
hazards of the applicant's sites/DGAs;
(3) Determine whether the applicant's safety and health management
system meets the requirements for Star approval,
(4) Determine how effectively the applicant's safety and health
management system addresses safety and health implementation at its
sites/DGAs, and how effectively the system provides pre-screening and
continuing oversight and evaluation;
(5) Identify any deficiencies in the applicant's safety and health
management system that must be satisfactorily addressed before OSHA
will approve the applicant.
(6) Determine whether the applicant is in compliance with OSHA
regulations; and
(7) Obtain information to assist the Assistant Secretary in making
the VPP approval decision.
b. Preparation. The review will be arranged at the mutual
convenience of OSHA and the applicant. The review team will consist of
a team leader; a back-up team leader (when needed); and health, safety,
and other specialists as required by the complexity of applicant's
operations.
c. Duration. The time required for the preapproval onsite review
will depend upon the complexity of applicant's operations but normally
will last 3 days.
d. Scope. OSHA will conduct an evaluation of the applicant's safety
and health management system to determine whether the system meets Star
requirements. It will include systems for ensuring safety and health
management system implementation, pre-screening, and continuing
oversight and evaluation of safety and health protection at sites/DGAs
within the corporation. This evaluation normally will take place at the
fixed location where the applicant maintains safety and health records
(typically the applicant's headquarters).
(1) Management Commitment. OSHA will carefully assess the
applicant's management commitment to safety and health and to VPP. This
assessment will include interviews with senior officials, regular and
temporary employees, and union representatives where applicable, from
headquarters and select sites/DGAs.
(2) Document Review. OSHA will examine the following records (or
samples) if they exist and are relevant to the application or to the
safety and health management system. (OSHA will accommodate trade
secret concerns to the extent feasible.)
(a) Written safety and health management system, including policies
and procedures that ensure compliance with OSHA standards;
(b) Management statement of commitment to safety and health;
(c) Safety and health manuals;
(d) Safety rules, emergency procedures, and examples of safe work
procedures;
(e) The system for enforcing safety rules;
(f) The system for employee reporting of safety and health problems
and management response;
(g) Self-inspection procedures, reports, and correction tracking;
(h) The system for investigating, documenting and analyzing
accidents;
(i) The system for establishing and tracking safety and health
performance goals;
(j) The system for tracking and responding to injury and illness
trends;
(k) Employee orientation and safety training programs;
(l) The system for measuring, documenting, and assessing safety and
industrial hygiene exposures;
(m) The system for conducting annual safety and health management
system self-evaluations and site/DGA oversight and evaluation;
(n) The system for preventive maintenance;
(o) Accountability and responsibility documentation, e.g.,
performance standards and appraisals;
(p) Contractor safety and health programs;
(q) The system for occupational health care;
(r) Available resources devoted to safety and health;
(s) The system for conducting hazard and process analyses;
(t) The system to ensure meaningful employee involvement in safety
and health;
(u) Other records that provide relevant documentation of VPP
qualifications.
7. Site/DGA Evaluation. After OSHA reviews a corporate applicant's
safety and health management system and grants VPP corporate approval,
the Agency will accept streamlined applications and conduct streamlined
onsite evaluations of corporate sites/DGAs. These evaluations and
subsequent reevaluations will focus on how effectively the sites/DGAs
implement the corporate-wide safety and health management system and
additional protective measures that address specific site/DGA
conditions. The evaluations and reevaluations will conform to OSHA's
policies and requirements for site-based participation (see VI.B.
above) and mobile workforce participation (see VI.C. above).
8. Term of Participation
a. A corporate participant's term of participation is open-ended so
long as the participant:
(1) Continues to maintain its excellent safety and health
management system;
(2) Submits the annual information required (see VI.D.3.n. above);
(3) Continues to bring acceptable numbers of new sites/DGAs into
VPP (see VI.D.3.f. above).
b. The term of participation for individual sites/DGAs will depend
on the program to which they are approved (Star or Merit) and their
manner of participation (site-based or mobile workforce).
c. In the event a corporation withdraws from VPP, completes its
participation, or is terminated by OSHA, individual qualified sites/
DGAs are entitled to continue their participation under the site-based
option.
9. Periodic Reevaluation of Corporate Safety and Health Management
System
a. Purpose. OSHA periodically conducts onsite reevaluation of a
corporate participant's safety and health management system to:
(1) Determine continued qualification for corporate participation;
(2) Document results of participation in terms of the evaluation
criteria and other noteworthy aspects of the participant's safety and
health management system; and
(3) Identify any problems that have the potential to adversely
affect continued qualification and determine appropriate follow-up
actions.
b. Frequency. OSHA will conduct reevaluations of corporate
participants' safety and health management systems at no greater than
60-month intervals. (Significant changes in the safety and health
management system, corporate leadership or structure may trigger more
frequent evaluation.) For corporate participants who participated in
the Corporate Pilot, OSHA will conduct the initial reevaluation of the
safety and health management system within 60
[[Page 950]]
months of the last Corporate Pilot evaluation.
c. Scope. OSHA's reevaluation of corporate participants will
consist mainly of an onsite visit similar in scope to the preapproval
onsite review described in VI.D.6. above.
d. Measures of Effectiveness. OSHA will use the following factors
in the reevaluation of corporate participants:
(1) Continued compliance with VPP requirements and continuous
improvement in the safety and health management system;
(2) Satisfaction and continuing demonstrated commitment of
employees and management; and
(3) Nature and resolution of problems that may have come to OSHA's
attention since approval or the last evaluation.
VII. Participation Decisions
A. Recommendation for Program Approval
1. Approval
If, in the opinion of the OSHA preapproval onsite review team, the
applicant has met the qualifications for participation, the team leader
will submit the team's recommendation to the appropriate OSHA official,
normally the Regional Administrator. This official, on concurrence,
will recommend approval to the Director of Cooperative and State
Programs. The Director of Cooperative and State Programs will review
the preapproval report for compliance with program criteria and
consistent application of the qualifications requirements and, on
concurrence, will forward the recommendation to the Assistant Secretary
to approve participation. Approval will occur on the day that the
Assistant Secretary signs a letter informing the applicant of approval.
2. Deferred Approval
If the preapproval review determines that the applicant needs to
take steps to meet one or more program requirements or to come into
compliance with OSHA rules, the applicant will be given reasonable time
(up to 90 days) before a recommendation for VPP approval is made to the
Assistant Secretary. When necessary, an onsite visit will be made to
verify the actions taken after the preapproval onsite review visit.
Upon satisfactory completion of the above steps, the onsite review
team leader will initiate the approval process described in VII.A.1.
above.
3. Rejection of the Recommendation to Approve
Should the Assistant Secretary for any reason reject the
recommendation to approve made by the Regional Administrator or other
appropriate official, a letter from the Assistant Secretary denying
approval and explaining the rejection will be sent to the applicant.
The denial will occur as of the date of the Assistant Secretary's
letter.
B. Recommendation for Program Denial
1. If OSHA determines that the applicant does not meet the
requirements for VPP participation, the Agency will allow reasonable
time (not to exceed 30 calendar days) for the applicant to withdraw its
application or submit an appeal of the team recommendation.
a. If the applicant chooses to withdraw its application, the
provisions of V.E. above will apply and no onsite team report will be
generated.
b. If an applicant chooses to appeal the recommendation, it should
submit its appeal within 30 calendar days to the Regional Administrator
or other appropriate OSHA official. That official will submit the
appeal, along with a denial recommendation, to the Director of
Cooperative and State Programs, who will review the submission and
forward it to the Assistant Secretary.
2. The Assistant Secretary will make a binding decision.
a. If the Assistant Secretary accepts the applicant's appeal, the
applicant will be approved to VPP on the day the Assistant Secretary
signs a letter conveying this decision to the applicant.
b. If the Assistant Secretary denies the applicant's appeal,
participation denial will occur on the day the Assistant Secretary
signs a letter conveying this decision to the applicant.
C. Reapproval Recommendations and Decisions
1. Star Program
The Regional Administrator or other appropriate official will make
one of the following decisions/recommendations following a Star
periodic reevaluation visit:
a. Decision to continue participation in the Star Program;
b. Decision to allow a 1-year conditional participation in the Star
Program. The VPP onsite review team may recommend this alternative if
it finds that the participant has allowed one or more safety and health
management system elements to slip below Star quality. Before a
participant can be placed on 1-year conditional status, the participant
first must return its safety and health management system to Star
quality within 90 calendar days of the evaluation visit and must
demonstrate a commitment to maintain that level of quality;
c. Recommendation to remove a Star participant's 1-year conditional
status. A VPP onsite review team will return to a conditional Star
participant's site/DGA 1 year after the onset of conditional status to
determine if the participant's safety and health management system
remains at Star quality. If the team is satisfied that Star quality has
been maintained, it will recommend the participant be reapproved to the
Star Program; or
d. Recommendation to Terminate. After considering the
recommendation of the VPP onsite review team, the Regional
Administrator or other appropriate official may recommend to the
Assistant Secretary that a participant be terminated if the participant
has been found to have significantly failed to maintain its safety and
health management system at Star quality or meet other VPP
requirements.
2. Merit Program
The Regional Administrator or other appropriate official will make
one of the following decisions/recommendations following a Merit
periodic evaluation visit:
a. Decision for continued Merit participation;
b. Recommendation for advancement to the Star Program;
c. Recommendation for termination; or
d. Recommendation for a second Merit term. This recommendation will
occur only when unanticipated unique circumstances slow the
participant's progress toward accomplishing the goals.
3. Demonstration Program
The Regional Administrator or other appropriate official will make
one of the following decisions/recommendations to the Assistant
Secretary following a Demonstration periodic reevaluation visit.
a. Decision to continue participation in the Demonstration Program
at current recognition level (Star or Merit);
b. Recommendation for advancement to Star level recognition within
the Demonstration Program; or
c. Recommendation for termination. This recommendation may occur
when the unique aspects of the Demonstration do not provide VPP-quality
protection or when the participant has significantly failed to maintain
a VPP-quality safety and health management system.
4. Corporate Safety and Health Management System
The Regional Administrator or other appropriate official will make
one of the
[[Page 951]]
following recommendations to the Assistant Secretary following a
periodic reevaluation visit to reassess a corporate participant's
organization-wide safety and health management system.
a. Recommendation to continue participation; or
b. Recommendation for termination.
5. Effective Date of Reapproval Decisions
a. When the Regional Administrator or other appropriate official
has authority to make a reapproval decision, the effective date will be
the day the deciding official signs a letter conveying the decision to
the participant.
b. When the Regional Administrator or other appropriate official
makes a reapproval recommendation to the Assistant Secretary, the
effective date will be the day the Assistant Secretary signs a letter
conveying the decision to the participant.
D. Voluntary Withdrawal
1. A participant may withdraw from VPP for any reason, including
receipt of an OSHA notice of intent to terminate, by submitting written
notification to the Regional Administrator or other appropriate OSHA
official.
2. The completion of work by a site-based construction participant,
and the resulting final self-evaluation (see VI.B.5.), will constitute
a withdrawal.
3. Before acting to terminate a participant from VPP (see VII.E.
below), OSHA normally will give the participant the opportunity to
voluntarily withdraw.
E. Termination of Participation
1. Reasons for Termination. OSHA will terminate a participant from
VPP when:
a. Participant's management, or the duly authorized collective
bargaining agent, where applicable, withdraws support for VPP
participation;
b. A participant fails to maintain its safety and health management
system in accordance with program requirements;
c. Following a fatality or other significant event and completion
of OSHA enforcement action and/or a VPP reevaluation (see VIII.C.2-3),
OSHA determines that the event reflects a serious deficiency in the
participant's safety and health management system that warrants
termination.
d. No significant progress has been made toward achieving the
established Merit goals or 1-year Star Conditional goals;
e. The 2-year period for a Rate Reduction Plan has expired without
the participant returning injury and illness rates to acceptable
levels;
f. The Merit term of approval has expired, and no recommendation
has been made for a second term;
g. The sale of a VPP participant to another company or a management
change has significantly weakened the safety and health management
system;
h. Resident contractor participation is no longer possible because
the host site no longer participates in VPP and no other appropriate
option is available. This reason for termination does not apply to
resident contractors that are participating as part of a larger
organization approved under the corporate option;
i. A corporate participant fails to meet expected numbers of new
site/DGA participants;
j. OSHA terminates a Demonstration Program for just cause; or
k. The Regional Administrator or other appropriate official
presents written evidence to the Assistant Secretary that the essential
trust and cooperation among labor, management, and OSHA no longer
exist, and therefore recommends termination, and the Assistant
Secretary concurs.
2. Termination Notification and Appeal or Withdrawal
a. Under most circumstances, OSHA will provide the participant and
bargaining unit representatives 30 days' notice of intent to terminate
participation in the VPP. During the 30-day period, the participant is
entitled to appeal in writing to the Assistant Secretary and to provide
reasons why it believes it should not be removed from the VPP.
b. OSHA will not provide 30 days' notice when:
(1) Other terms for termination were agreed upon before approval;
or
(2) A set period for approval is expiring.
3. Reapplication Following Termination
a. Reinstatement to VPP following termination requires
reapplication.
b. OSHA will not consider the reapplication of a terminated
participant for a period of 3 years from the date of termination.
VIII. OSHA's Post-Approval Contact with Participants
A.OSHA Contact Person
The Contact Person for each VPP participant will be the appropriate
Regional VPP Manager or his/her designee, or the appropriate OSHA
National Office representative. This person will be available to assist
the participant, as needed.
B. OSHA Compliance Assistance
1. In some cases, OSHA may schedule and conduct an onsite
assistance visit, for example, to respond to employer technical
inquiries or to ensure the efficacy of a Demonstration.
2. Whenever significant changes in ownership or organizational
structure occur, or a change occurs in an authorized collective
bargaining agent required to provide evidence of support for VPP, OSHA
may make an onsite assistance visit if needed to determine the impact
of the changes on VPP participation. In the event of such changes, the
Regional Administrator or other appropriate OSHA official must be
notified of the change within 60 days, and a new signed Statement of
Commitment will be required. The Statement must be signed by management
and appropriate bargaining representatives.
3. Whenever a 3-year rate (either the TCIR or the DART rate) of a
Star Program participant exceeds the 3 most recent years' national
averages published by BLS, at the discretion of the Regional
Administrator or other appropriate OSHA official, the participant may
be required to develop an agreed upon 2-year rate reduction plan.
a. If appropriate, OSHA may make an assistance visit to help the
participant develop the plan.
b. The plan may be developed in conjunction with needed corrections
to deficiencies within the safety and health management system that
have resulted in OSHA placing the participant on 1-year conditional
status. (See VII.C.1.b.)
(1) OSHA may lift a participant's conditional status before
completion of the rate reduction plan.
(2) If, after 2 years, a participant's rates have not returned to
acceptable levels, the participant will be asked to withdraw from VPP.
Failure to withdraw will result in termination.
C. OSHA Enforcement
1. Programmed Inspections. VPP applicants and participants, unless
they choose otherwise, will be removed from OSHA's programmed
inspection lists, including any lists of targeted sites.
a. OSHA will remove an individual site applicant or multiple sites
within an applicant DGA from the programmed inspection lists.
(1) This will occur no more than 75 calendar days prior to the
commencement of the scheduled preapproval onsite review.
(2) The applicant will remain off these lists until official denial
of the application, applicant withdrawal of its
[[Page 952]]
application, or, if the applicant is approved to the VPP, subsequent
cessation of active participation in the VPP.
b. Upon approval, VPP participants will continue to be removed from
OSHA inspection lists for the duration of approved participation.
c. Removal from OSHA programmed inspection lists does not apply to
a corporate headquarters or DGA headquarters unless these locations
have applied or been approved for site-based participation.
2. Unprogrammed Inspections
a. Workplace complaints to OSHA, all fatalities and catastrophes,
and other significant events will be handled by enforcement personnel
in accordance with normal OSHA enforcement procedures.
b. The history of the VPP demonstrates that safety and health
problems discovered during any contact with VPP participants normally
are resolved cooperatively. Nevertheless, OSHA must reserve the right,
where employees' safety and health are seriously endangered and
management refuses to correct the situation, to refer the situation to
the Assistant Secretary for review and enforcement action. The employer
will be informed that a referral will be made to the Assistant
Secretary and that enforcement action may result.
3. Additional VPP Investigations
a. Following significant events, e.g., fatalities, chemical spills
or leaks, or other accidents, OSHA may choose to use VPP personnel to
conduct an onsite review to determine a participant's continued
eligibility for VPP.
b. OSHA also may choose to investigate other significant accidents
or events that come to its attention and that are not required to be
handled with normal OSHA enforcement procedures, whether or not injury/
illness is involved. OSHA will use VPP personnel to determine whether
the accident or incident reflects a serious deficiency in the
participant's safety and health management system that warrants
reevaluation of the participant's VPP qualification.
Authority: The Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq.
Signed at Washington, DC, this 5th day of January, 2009.
Thomas M. Stohler,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E9-165 Filed 1-8-09; 8:45 am]
BILLING CODE 4510-26-P