OSHA program finally dies in federal court
OSHA program finally dies in federal court
The program may be resurrected later
The Cooperative Compliance Program (CCP), touted by the federal Occupational Safety and Health Administration (OSHA) in Washington, DC, as a nicer way of dealing with employers instead of threats and intimidation, is no more. After a long fight, a federal appeals court stuck the final dagger in the heart of the program.
The program could be resurrected at a later date if the government decides to try again, but for now, the appeals court ruling means that the program is dead. The District of Columbia Court of Appeals ruled against the CCP in a suit brought by the U.S. Chamber of Commerce in Washington, DC, and other organizations.1 Eighteen months ago, OSHA launched the program and hailed it as a new way of encouraging safety in the workplace. CCP avoided some of the punitive measures and scare tactics that some employers associate with OSHA.
Were some companies OSHA targets?
Many employers, however, saw the program differently. They asked the courts to block CCP, charging that OSHA was unfairly targeting employers with frequent injuries rather than those with severe injuries. That focus put some companies under the spotlight purely because of high number of minor injuries even though there were other companies that posed far more risk to workers, they argued.
OSHA countered that CCP was an innovative and creative strategy to reduce worker injuries and illnesses at the most hazardous workplaces, those with higher-than-average injury and illness rates. CCP was designed to benefit employers, employees, and taxpayers by encouraging employers to develop effective workplace safety and health programs and find and fix hazards on their own in exchange for a reduced chance of inspection.
By March 1998, nearly 87% — about 10,000 of the 12,000 employers invited to join CCP — had signed up. All had experienced injury and illness rates in 1996 that were double or higher than the national average rate. The program was stalled by the legal challenges, primarily allegations that OSHA had not followed federal guidelines on rule making by failing to give proper notice and solicit comments from affected parties.
A three-judge panel agreed with most of that argument and vacated the rule, meaning OSHA cannot enforce it any way. Robin Conrad, vice president of the U.S. Chamber Litigation Center, the Chamber of Commerce’s litigation arm, tells Occupational Health Management that the ruling slams the lid on the current version of CCP. OSHA cannot simply reintroduce the program at a later date; instead it must begin at square one with the rule-making process, and that means a delay of at least a couple of years before the program could be enacted again.
OSHA officials say they do intend to give CCP another go. In a statement released after the program was struck down, U.S. Secretary of Labor Alexis Herman said, "We are deeply disappointed in the court’s ruling today. While we are reviewing the decision, we will continue our outreach efforts aimed at helping high-hazard employers learn how they can improve workplace safety and health before an OSHA inspector arrives at their door.
"Today’s ruling does not affect our program of targeting inspections to the most dangerous workplaces. We will continue to zero in on workplaces where high injury and illness rates show the people are being hurt," she added.
Reference
1. U.S. Chamber of Commerce v. U.S. Department of Labor, No. 98-1036, U.S. Court of Appeals for the District Court of Columbia Circuit (April 9, 1999).
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