OSHA considering changes to Voluntary Prevention Programs

Safety-worker Since 1982, the Occupational Safety and Health Administration (OSHA) has administered “Voluntary Protection Programs” (VPPs) to encourage employers to establish and implement worker Safety and Health Programs that exceed minimal efforts to comply with applicable OSHA standards. OSHA designs VPP eligibility to encourage employer/employee/OSHA cooperation, and to reward such cooperation by granting employers increased flexibility and reduced likelihood of inspection. OSHA presently oversees three programs (which I described in more detail HERE), and is undertaking a “VPP Modernization” initiative to evaluate ways for “modernizing, improving, and expanding” these efforts. On February 16 OSHA posted questions about possible changes, which I discuss in the rest of this note.

What are OSHA’s VPP programs?

OSHA offers three programs:

- Star Program – for worksites that meet all VPP criteria
- Demonstration Program – for worksites where the employer claims to meet at least some Star Program criteria using non-standard methods
- Merit Program – for worksites that meet most Star Program criteria and are working under a definite plan to qualify for the Star Program

I provided more detailed explanations of these provisions in my earlier note.

What are OSHA’s VPP Modernization initiative goals?

As described by OSHA, the agency is focused on expanding and reinforcing the use of safety and health management systems (SHMS), to accomplish the following:

- Modernize VPP to align more closely with recent OSH practices and SHMS standards,
- Expand the number of VPP participants to better demonstrate the effectiveness of SHMSs and how they support the agency’s “Safety as a Core Value” initiative, and
- Expand ways to enlist the assistance of Special Government Employees (SGE), certified safety and health professionals, 3rd party auditors/certifications, and others to ensure the ongoing quality of VPP participants’ SHMSs.

To support these goals, OSHA has just published a set of 41 questions for public comment, through a docket established on the Regulations.gov website. These questions are organized under major themes:

General observations – abut VPP:

1. What is working well with VPP?
2. What could be improved?
3. What has not worked well with VPP?

Incentives to participate:

1. To what extent does OSHA’s recognition as a VPP participant motivate organizations to improve safety and health?
2. Is the existing exemption from programmed inspections an effective motivator, and are they sufficient?
3. Does the existing exemption from programmed inspections create any concerns about workplace safety and health at these facilities?
4. What other incentives could OSHA offer to encourage VPP participation?
5. Should all types of workplaces be included in the scope of VPP?
6. Should the manufacture or use of any specific hazardous materials preclude involvement or require special conditions?

Assessing SHMS effectiveness:

1. What criteria should OSHA consider for eligibility in VPP?
2. What concerns exist with the use of injury rates for participation in VPP?
3. Should OSHA consider the relative importance of various criteria (e.g., a weighting system) for eligibility and performance criteria, to reflect the performance of VPP applicants and participants more accurately?
4. What weight should DART and TCIR be given in an overall assessment of the effectiveness of a VPP participants’ SHMS?
5. What leading indicators should OSHA consider using to assess the performance of VPP participants’ SHMS?
6. Should any programs, policies, or practices that may affect injury reporting be excluded from VPP site SHMS?

Use of consensus standards as a pathway to VPP:

1. Should OSHA create a new and separate pathway for organizations that are already certified to SHMS consensus standards to join VPP?
2. What additional criteria, if any, should such organizations be required to meet to be eligible for VPP recognition?
3. Are there any current VPP application requirements that should be waived for organizations already certified to SHMS consensus standards such as ISO 45001?
4. Should organizations that voluntarily follow any of these consensus standards, but that have not been certified by a third party, have an easier path to VPP?
5. What concerns exist for facilities that are voluntarily following or are certified to a consensus standard such as ISO 45001 that might reduce the effectiveness of their entry to the VPP program through an alternative entrance route?

Role of accredited certification bodies in VPP reviews

1. Is there a role for certification bodies who are accredited to audit organizations for conformance to SHMS consensus standards to perform or assist in performing VPP application reviews?
2. Should OSHA engage with certification bodies and those who accredit them to create a hybrid SHMS certification option for industry (e.g., ISO 45001-VPP)?
3. Are there aspects of the VPP review that would not be suitable for SHMS certification bodies to perform?

Role of certified safety and health professionals in VPP reviews

1. Is there a role for certified safety and health professionals (e.g., CSP or CIH) or senior worker safety and health representatives (e.g., a long-term safety committee member) to perform (or assist in performing) VPP application reviews?
2. Should OSHA engage with organizations that credential safety and health professionals to create a designation or special training that helps such professionals demonstrate their competence to perform VPP reviews?
3. Are there any aspects of the review that would not be suitable for certified safety and health professionals or senior worker safety and health representatives to perform?
4. Are there other credentialed safety and health professionals who should be allowed to perform or assist in VPP application reviews?

Tiered VPP

1. Should OSHA consider a tiered approach to VPP?
2. What criteria could the VPP program use to distinguish between, for example, a new participants tier, a tier for organizations with fully functional SHMS programs, and VPP participants who are truly exceptional?
3. What benefits could OSHA provide that would encourage organizations to improve their performance and move from a lower to a higher tier?

Effective VPP administration

1. What data should be collected during the initial application process and periodic evaluations to ensure that VPP applicants are, and remain, eligible to participate in VPP?
2. Are there issues related to data integrity and confidentiality in the collection and storage of data from VPP initial applications and periodic evaluations? If so, how should these issues be addressed?
3. If OSHA were to engage or authorize third-party reviewers to conduct on-site evaluations, what review process should be used to ensure the quality of the data produced during such evaluations?
4. How can OSHA use technology and the internet to streamline and improve VPP? For example, should OSHA develop an online application and renewal system? Should OSHA create a VPP web page dedicated to sharing best practices?
5. What steps can OSHA take to ensure that any use of third-party certification does not result in facilities with less than exemplary SHMS being admitted to the program?

VPP worker and safety professional involvement

1. OSHA utilizes Special Governmental Employees (SGEs) to assist with the evaluation process. Should SGE use be expanded to provide additional capacity to the program?
2. Should SGE training be standardized to ensure consistency?
3. Are there items that should be included in SGE curricula that are not currently included?

VPP name

1. Should OSHA consider “rebranding” VPP and giving it a new name?
2. What considerations should OSHA factor in when considering any new program name?
3. Should OSHA sponsor a naming contest for the program?

Now what?

As I noted, OSHA has established a docket on Regulations.gov, to which members of the public can submit their answers to any or all of these 41 questions. Any such comments are due by April 13, 2023. After that, OSHA will consider comments when deciding whether and how to revise its VPP programs.

Self-Assessment Checklist

Do any of the organization's locations participate in one of OSHA’s VPP programs?

Star program (fully qualified)
Demonstration program (conditionally qualified)
Merit program (participating while completion qualifications)

Would the organization’s eligibility change if OSHA adopts the changes under discussion in the agency’s call for comments?

Is the organization preparing to submit comments on any or all of the 41 questions raised by OSHA?

Where Can I Go For More Information?

About the Author

jon_f_elliott1-resized-600 Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com

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