The Government Accountability Office has recently released a report showing that the Occupational Safety and Health Administration’s Voluntary Protection Program is ineffective. OSHA’s VPP, established in 1982 and expanded to over twice the number of job sites during the Bush administration, allows businesses to avoid routine OSHA inspections by, among other things, demonstrating below average injury and illness rates, and having a good health and safety program. This allows businesses that participate to voluntarily monitor employee health and safety, without much government oversight. This “hands-off” approach by OSHA was seen by many as giving too much leeway to employers, and insufficient to protect the health and safety of the workers. United States Senator Patty Murray (D-WA) even declared it a “recipe for disaster.”
Unsurprisingly, the GAO report concluded that not all participants in the VPP were maintaining the minimum safety levels required by the program, yet there was not an adequate system set up within the VPP to ensure that only qualified participants were allowed to remain in the program. First, there was no policy that requires documentation of OSHA’s follow-up actions in response to jobsite injuries or fatalities and second, there are no internal controls within the VPP that monitor jobsite injuries and fatalities to ensure that they stay below a minimum required for the program.
According to OSHA’s VPP manual, regional offices are required to review the safety and health systems of a jobsite following a serious injury or fatality. These reviews are supposed to help to protect the workers by determining if changes are needed to prevent that type of accident from happening again, or by removing the jobsite from the VPP. The problem is there is no requirement that these reviews be documented within the VPP files. Documentation would allow OSHA to maintain a check on the regional offices and ensure that appropriate actions were being taken; however, in their study, the GAO found no documentation of actions taken by VPP staff in regard to a number of jobsite fatalities. GAO’s further inquiry determined that while a small number of these sites voluntarily removed themselves from the VPP, a much larger number remained VPP participants, including a site which had three fatalities in five years and a site which received ten violations relating to a fatality, including seven serious violations. A small number of these sites never even received a complete investigation after an onsite fatality. These discoveries left the GAO to conclude that several sites, including sites that were part of the VPP’s Star program (the highest level of safety standards and least frequency of OSHA reviews), did not “successfully protect employees from fatality, injury, and illness” and yet remained in the program.
The GAO has suggested that if OSHA is going to continue with this “hands-off” approach they should, at the very minimum, establish better internal controls, which will help regional offices to ensure that only job sites that truly have exceptional health and safety procedures and records to remain participants of the VPP. The GAO found that the vast majority of jobsite reviews performed by regional OSHA offices were performed without access to past medical records of workers at that site, which is information that should have been obtained from the national office before the review. This information is required for the jobsite reviews to provide the national office with accurate jobsite injury and illness rates. The GAO also found that the OSHA’s national office took no effort to review the actions of the regional offices to ensure that only jobsites that met the minimum health and safety levels remained as participants in the VPP. As a result, the GAO found that 12 percent of jobsites had injury and illness rates that were higher than the national average for their respective industries, including a jobsite that had an injury and illness rate that was 4 times higher than the industry average. It does not take much to realize that a jobsite with an injury and illness rate 4 times higher than the industry average should not be able to forgo routine inspections by OSHA, and having jobsites such as these seems to defeat the whole purpose of the VPP. Needless to say, this “hands-off” approach has some serious shortcomings, and maybe trusting companies to maintain safe work environments is not such a good idea if the program does not have a procedure for dealing with jobsites that do not actually keep workers safe.
The final major flaw that the GAO discovered when compiling their report was that OSHA has set no performance goals for the VPP nor found ways to measure its actual effectiveness. OSHA has acknowledged they do need to set up performance goals in accordance with the Government Performance and Results Act of 1993, but have claimed as evidence of the program’s effectiveness that VPP participants’ safety rate are consistently lower than the national averages. However, the GAO investigation discovered that there were discrepancies between the injury and illness rates shown in OSHA’s annual reports and the actual rates shown by the jobsites. Additionally, the GAO investigation found some workers who claimed that “the injury and illness rates requirements of the VPP are used as a tool by management to pressure workers not to report injuries and illness.” This means that OSHA’s claims about the effectiveness are not backed by any real data, and further goes to show the serious shortcomings of the VPP.
While OSHA has stated that they have accepted the GAO’s recommendations, maybe the solution is to not try and patch together this broken and faulty program. Maybe it is just not possible to trust the health and safety of America’s workforce with the employers who are encouraged to cut corners on safety procedures to save money. It seems a “hands-off” approach to worker health and safety simply may not be a viable option.
David Combiths: David Combiths is a Legal Intern with Workplace Fairness, where he writes and edits legal content relating to employee health, safety, injury and illness issues. He is currently a second year student at the George Washington University Law School in Washington, DC.