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When Safety Becomes Voluntary: Workplace Self-Policing Program Under Scrutiny

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Michelle ChenWhat’s the value of a worker’s life? According to the calculus of corporate efficiency, it’s often still cheaper to put workers at risk than to spend money to protect them. And the federal government generously rewards those who have perfected this cost-containment strategy in industries where workplace hazards are just part of business as usual.

For years, the federal Occupational Safety and Health Administration (OSHA) has granted many companies a pass on government oversight with the Voluntary Protection Program (VPP). Touting big-name members like Coca Cola and ExxonMobil, the program works like a sort of gold star for employers with good safety records, which OSHA believes are capable of regulating themselves. As In These Times has reported previously, many companies granted this status can basically enjoy years of relief from regular federal evaluation.

To ordinary citizens this may seem like a fox guarding a hen house packed with dynamite, but many employers champion the VPP as a way of “partnering” with government to avoid onerous state oversight. Congress recently reviewed the program at a hearing of the House Subcommittee on Workforce Protections, which examined the VPP in light of recent reports about horrid workplace accidents, along with criticisms that the initiative undermines both labor standards and the government’s role in protecting the public from industrial exploitation.

Rena Steinzor, a University of Maryland law professor with the think tank Center for Progressive Reform, told ITT, “What the voluntary program does, let’s make no mistake about it, is it allows people to self-regulate. Basically, if you have someone who can fill out the paperwork, you’re off the hook.”

Evidently, not even the death of a worker is enough to persuade the government to revoke a company’s privileged status. According to a 2011 report by the Center for Public Integrity’s iWatch News:

Workers at plants billed as the nation’s safest have died in preventable explosions, chemical releases and crane accidents. They have been pulled into machinery or asphyxiated. Investigators, called in because of deaths, have uncovered underlying safety problems — failure to follow recognized safety practices, inadequate inspections and training, lack of proper protective gear, unguarded machinery, improper handling of hazardous chemicals. Yet these companies have rarely faced heavy fines or expulsion from the program. In death cases in which OSHA found at least one violation, VPP companies ultimately paid an average of about $8,000 in fines. And at least 65 percent of sites where a worker has died since 2000 remain in VPP today.

The Reagan-Era program has ballooned in recent years, tripling the number of worksites covered between 2000 and 2008. The ideological foundation of the program reflects a general hostility to safety and environmental regulation under the Bush administration.

Although we’re several generations removed from the workplace atrocities of the early industrial age, workers becoming ill or dying from their jobs remains a routine aspect of working life in the U.S. Even outside of special deals with OSHA like the VPP, a lack of resources for inspections and enforcement means that many companies escape oversight by default.

Keith Wrightson, a Worker Safety and Health Advocate with Public Citizen, told ITT, “VPP takes the OSHA inspector out of the picture.” When protection is “voluntary” on the part of bosses, employees have little reason to volunteer to report a workplace violation if it might get them fired. In general, he said, “OSHA inspections are nil. Why do we want to further dissolve what authority it does have over the workplace?”

From the employer’s standpoint, Wrightson noted, “If there’s fewer injuries on the job then the workers’ comp rates don’t rise. Your health insurance costs do not rise and your liability insurance does not rise.” But in the political debate, he said, “we don’t see those facts at the forefront. … The idea of VPP is a free market, where nobody should regulate, nobody should look, it’s laissez faire, and it’s not good.”

But EHS Today reported that the House committee hearing did at least review new research showing that state workplace monitoring can protect workers and save companies money at the same time:

The study found that within high-hazard industries in California, inspected workplaces reduced their injury claims by 9.4 percent and saved 26 percent on workers’ compensation costs in the 4 years following the inspection, compared to a similar set of uninspected workplaces. On average, inspected firms saved an estimated $355,000 in injury claims and compensation for paid lost work over that period. What’s more, there was no discernible impact on the companies’ profits.

So if profits aren’t hurt by inspections, corporations appear to reject government oversight simply on principle.

Steinzor sees a blatant imbalance in the way the government weighs health and safety needs against the profits of its corporate partners. “I think this is a class issue,” she said. “And it’s shameful that the content and implementation of the nation’s laws on occupational safety and the environment show systematic neglect of working-class people’s lives in heavy industrial jobs, and far more concern for the well-being of yuppies in the exurbs.”

In a system that tends to make the law comply with corporations rather than the other way around, “voluntary protection” seems to do exactly what the phrase implies: to make workers’ rights optional.

This blog originally appeared in Working In These Times on July 10, 2012. Reprinted with permission.

About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

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Government Accountability Office Report Highlights Shortcomings of OSHA’s Voluntary Protection Program

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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.

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