All about OSHA's Cooperative Compliance Program
The announcement of OSHA’s Cooperative Compliance Program last November—OSHA chief Charles Jeffress calls it "an inspection assignment system"—has caused a stir in industry. Thousands of employers received letters from the agency indicating that they were inspection targets. Industrial Safety & Hygiene News visited with OSHA officials in Washington in February to get answers to some of employers’ most pressing questions about this new enforcement strategy.
This is how the CCP works: Last year, 80,000 worksites sent OSHA information detailing their 1996 injury and illness experiences. The agency then identified 12,250 workplaces with serious injury and illness rates almost double the national average.
The 500 workplaces with the worst rates and/or a history of poor OSHA compliance will receive mandatory inspections beginning immediately. Remaining companies had to make a decision by February 17: If they signed an agreement with OSHA to improve their safety and health programs, they were put on a "secondary" inspection list, meaning they have a 30 percent chance of getting inspected in the next two years. If they decided not to "cooperate," they face a 100 percent chance of inspection.
Targeted companies on the list with 100 or fewer employees could decide to sign up for free help from their state OSHA consultation program. By doing so, they reduced their chances of getting inspected in the next two years to 10 percent.
If you are in a state with its own OSHA program, the CCP does not apply. The 12,250 worksites targeted are all located in the 29 states that come under federal enforcement for private industry employers. States with their own OSHA programs cannot be forced to adopt their own version of a CCP targeting system, but most probably will develop some variation in coming years, says Richard Fairfax, deputy director of OSHA’s compliance programs.
If you haven’t received a letter from OSHA by now, you’re not on their list. Letters were sent late last year to those 12,250 employers who reported to OSHA that their 1996 lost-workday injury and illness rate averaged 7.0 or more cases per 100 full-time workers. That’s almost twice the national average for 1996 of 3.6 cases.
Construction companies are not being targeted. The CCP specifically targets companies in manufacturing and 14 non-manufacturing Standard Industrial Classification (SIC) codes, such as nursing and personal care facilities, warehouses, and grocery and beverage wholesalers. OSHA chief Jeffress says separate targeting must be devised for the construction industry due to the lack of site-specific injury data, and the prevalence of small contractors who do not have at least 60 employees—the minimum to become a potential target in the CCP. OSHA will continue to inspect about 17,000 construction sites annually—half of its total inspection activity.
You can’t get off the list once you’re on it. You can enroll in the CCP, but you’ll never officially graduate, says Fairfax. This differs from earlier targeting programs in Maine and Wisconsin, where targeted companies received letters formally removing them from the targeting list after meeting certain requirements. The only way you cease to be an OSHA target is if you lower your injury and illness rates over a period of years to below the cut-off for future CCPs. The current program runs for two years, and then a new target list will be drawn up.
OSHA will not penalize targeted employers if their rates do not decline, says Jeffress. In fact, OSHA expects the rates of many targeted companies to initially increase as workers are encouraged to report more safety problems. But as improved safety efforts take hold over time, OSHA expects the rates to fall.
OSHA will never know for certain if most CCP employers have indeed followed through on their signed commitment. OSHA will use the threat of randomly inspecting three out of every ten cooperating employers to motivate all CCP employers. And Fairfax expects employees, especially in union worksites, to file complaints with OSHA if employers aren’t acting on their commitment to find and fix hazards.
Targeted employers are not required to document their efforts and send reports to OSHA. This proved to be a tremendous paperwork burden on targeted companies in Maine. The only way OSHA will monitor the progress of CCP companies is through year-to-year injury and illness rates that the companies will forward to the agency, according to Fairfax.
Targeted employers will not be held to a higher standard than other employers. OSHA chief Jeffress says there’s no double standard—"These people will be held to no higher standard than the general industry standards that are out there."
Employers who agree to implement or improve a comprehensive safety and health program (as outlined by the agency’s 1989 voluntary guidelines and the current Program Evaluation Guide) will not be cited if inspectors do not find key elements of such programs, such as management leadership or employee involvement, because no existing standard requires these elements.
The same holds true for employers who need to identify and correct ergonomic-related hazards. Since an ergo standard doesn’t exist, inspectors will ask, "Have you done everything you could" to analyze problems as required by the general duty clause (the 1970 Occupational Safety and Health Act’s blanket requirement for employers to provide a safe and healthful workplace) says Jeffress.
How does OSHA define "employee involvement"? "We are not mandating that employers set up safety committees by any means," asserts Fairfax. He offers a flexible definition that could include use of suggestion boxes, tool box safety meetings—any number of steps that create a workplace "atmosphere that allows a free exchange" of safety information between workers and managers, says Fairfax. Definitions of employee involvement and management leadership can be found in OSHA’s Program Evaluation Guide, which has been sent to all targeted companies.
How will inspectors evaluate employee involvement and management commitment? They won’t use the Program Evaluation Guide, says Fairfax. All inspectors will receive special training in evaluating safety and health programs, based on the premise that "no one program fits all sizes of workplaces," says Fairfax. He says companies that lack any evidence of employee participation procedures tend to have deficiencies in training and other violations that can be cited, based on OSHA’s experience with the Maine 200 targeting program.
Basically, inspectors will be looking for evidence that employers, with the help of their employees, are trying to find and fix workplace hazards. "If they’re really trying and violations are still found, they’ll get the maximum good faith penalty reduction," says Fairfax. Minor, other-than-serious violations will not be cited.
This is how ergonomic hazards will be handled, as well, according to Fairfax. If an employer is aware of ergo hazards that create an unsafe workplace and is working to fix them, OSHA will send a letter following the inspection indicating that violations (under the general duty clause) have been noted, and the employer is requested to update OSHA on corrective actions. No citations or fines will be levied. If the employer is aware of ergo hazards and is doing nothing about them, general duty clause citations and penalties could be issued.
The incentive for targeted employers is to lower their rates so they don’t make the next CCP list compiled by OSHA. The plan (subject to change) is for OSHA to draw up a new CCP list every two years, based on injury and illness data collected from 80,000 worksites. This initial CCP effort, based on 1996 data, will run until the end of 1999. In the year 2000, OSHA will again target approximately the same number of companies (12,000+) for inspections, based on 1998 injury and illness records, according to Fairfax.
But in future CCPs, OSHA might single out industries not targeted in the current program. Smaller employers with 30, 40, or 50 employees might be targeted. And the injury rate used to define the target list might well change, according to Fairfax.
While new CCPs will be set up every two years, OSHA will collect injury data every year for various enforcement purposes, including identifying and inspecting annually the 500 workplaces with the worst safety and health performance.
If you’re not on the current CCP list, you should work to make sure your rates stay low enough to avoid future CCP targeting. Companies "not on the list now have some breathing room," says Fairfax. But he says "who knows" what the targeting criteria will be in the future. Translation: Don’t let up if you’ve got a good program.
If you’re not on the list, your chances of seeing an OSHA inspector in the next two years are slim. Of course, they always have been. Jeffress estimates that under the old "lottery" system, employers in high-hazard industries had a two-percent chance of being inspected each year. Now, the math works out this way: OSHA plans to conduct roughly 34,000 inspections across states without their own OSHA programs. Half will be in construction. Of the remaining 17,000, Jeffress estimates 6,000 to 7,000 inspections will be conducted in CCP-targeted worksites; and another 6,000 to 7,000 inspections will be in response to complaints, fatalities, serious accidents, and referrals. That leaves only 3,000 to 4,000 inspections, and some of those will be directed at workplaces falling under special emphasis enforcement campaigns, such as currently underway for worksites with silica and lead exposures.
OSHA is fully aware of the potential for employers to underreport injuries in order to stay off the target list. Field officers have been specially trained to conduct 250 in-depth records evaluations (out of 80,000 worksites submitting data), says Fairfax. Plus, on each CCP inspection compliance officers will verify records by going back and checking original accident reports. Fairfax adds that in unionized workplaces, "I’m real comfortable that we’ll be told of any underreporting."