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Further Improvements to VPP - May 30, 2018


U.S. Department of Labor

Occupational Safety and Health Administration
Washington, D.C. 20210

DOL Seal

May 30, 2018

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
AREA OFFICE DIRECTORS

FROM:

DOUGLAS J. KALINOWSKI, Director
Directorate of Cooperative and State Programs

SUBJECT:

2018 Revised VPP Policy Memorandum #7: Further Improvements to the Voluntary Protection Programs

This memorandum supplements the August 3, 2009, memorandum, "Improving the Administration of the Voluntary Protection Programs (VPP)," subsequent VPP policy memoranda, and clarifies Agency efforts to improve the administration of the VPP. It revises policy and procedures for National Office notification of a fatality/catastrophe at a VPP site and details new policy and procedures for the VPP following a work-related fatality and/or a participant's failure to report an incident within the statutory period.

In addition to reporting workplace fatalities and catastrophes, this memo addresses non-reporting of hospitalizations, amputations, or loss of an eye, as a result of work-related incidents, within the required time period. This memorandum replaces the May 29, 2013, memorandum and is effective immediately.

Actions to be Taken

Upon being informed of a fatality/catastrophe at a VPP site, including a non-VPP contractor working at a VPP site, the Region will notify the Office of the Assistant Secretary (OAS) via the Directorate of Cooperative and State Programs (DCSP). The above notification will also occur if an employer fails to report the fatality/catastrophe or other significant incidents as outlined in 29 CFR 1904.39, within the required time frame. (The text of 29 CFR 1904.39 is located in the Attachment.) An email will be sent to the DCSP Director from the Regional Administrator (RA) and will include the following information for either a host employer and/or contractor employer, to the extent possible:

  • Site Name
  • Site Address
  • Contractor Name and Address, if Applicable
  • Fatality or Catastrophe (yes or no)
  • Failure to Report (yes or no)
  • VPP Status
  • Date of Initial Approval
  • Date of Most Recent Reapproval
  • North American Industry Classification System (NAICS) Code
  • Date of the Incident
  • Brief Incident Description (Include the Number of Fatalities and/or Employees Hospitalized and Inspection Number, if possible)
  • Union Information, if Applicable

The instructions detailed in the April 7, 2014, memorandum to the RAs, OIS Enforcement Coding Regarding Voluntary Protection Programs (VPP) Worksites (O:\DCSP\OPR\VPP\Revised VPP OIS Enforcement Coding Memo.pdf) will remain in place regardless of the type of enforcement activity. During the course of the inspection, the Region will keep DCSP advised of any significant facts and findings in the case. The Region will also coordinate with the Directorate of Enforcement Programs or Directorate of Construction, as appropriate.

  1. Change in VPP Status

    Within 30 calendar days following a report of a fatality of a VPP site employee, a catastrophe at a VPP site, or a VPP employer's failure to report significant incidents within the required time frame, the status of the VPP participant will be changed to "Inactive Pending Inspection." At that time, the following will occur:

    • The Region will notify the VPP site in writing of the change in status, request that they not display the VPP flag, plaque, publications and/or certificates, and inform any Special Government Employees (SGEs) that they may not act as SGEs while the site is in "Inactive Pending Fatality/Catastrophe Inspection" status. In addition, the company's internal and external references to being a VPP site will also be amended, which includes their electronic media.
    • DCSP will change the site's VPP status in all OSHA print and electronic materials, including the OSHA Website, and tracking systems.
  2. Termination

    When a fatality/catastrophe is deemed work-related (program-related) or the participant fails to report a fatality/catastrophe or other significant incident within the required statutory time period to the Region, and citations are issued, the RA will issue a "Notice of Intent to Terminate" (ITT) within 30 calendar days of citation issuance based on the following:

    • Prior to the ITT, the Region/Area Office will facilitate a review and a meeting with the site, to discuss additional information surrounding the incident, and to assess the status of the employer's safety and health management program.
    • If the Region determines that termination is not a recommended resolution based on the review and meeting above, the RA will send an email to the DCSP Director verifying that no further action is required.
    • A participant's review and meeting with the Region will not impact their right to appeal the ITT within the 30 calendar days to the OAS or to withdraw from VPP.
    • If the Region determines that the site no longer meets the criteria for remaining in VPP, the site will be offered the opportunity to withdraw or will be issued an ITT if they choose not to withdraw.
    • During the meeting, the RA (or their designee) will allow the site to identify why they should remain in VPP and discuss the option to withdraw from VPP.
    • If the employer intends to reapply to VPP, they may state that in their materials.
    • The Region will provide DCSP with copies of the ITT and other information received during the informal meeting.
    • If the Region determines that termination is recommended, the RA will send a memorandum to the DCSP Director, along with a copy of the ITT sent to the site.
  3. Appeal Process

    If the participant decides to appeal the ITT, the following applies:

    • The participant has 30 calendar days from the receipt of the notice to appeal the ITT.
    • The participant must provide to the Assistant Secretary in writing, the reasons why the site should not be removed from the VPP.
    • Upon review of the participant's justifications for continued participation, the Assistant Secretary, in consultation with the Regional Administrator and DCSP, will make the final decision.

    The RA will send a memorandum with the Region's recommendation on the VPP site's continued participation in VPP along with the site file.

  4. DCSP Role

    The Director of the Directorate of Cooperative and State Programs and the VPP staff will review the recommendation package, work with the Region to prepare a briefing document and after concurrence, will transmit it to the Assistant Secretary. This will be done, within 30 days, and pending receipt of all the appropriate information related to the case.

  5. OAS Decision

    The participant will be notified in writing with the outcome of their appeal.

    If the termination is upheld, the participant:

    • may no longer display the VPP flag, plaque, and/or certificates. All references to the site having VPP status, in print or electronically, will be removed.
    • is subject to programmed inspections.
    • will be removed from the VPP public files maintained in the OSHA Regional Office.
    • may not reapply for VPP participation for three years.

    If the appeal is granted by the Assistant Secretary, the participant will be reinstated to VPP status.

    DCSP will notify the RA of the Assistant Secretary's decision via email and provide a copy of the Assistant Secretary's correspondence to the participant. The RA will immediately notify the appropriate Area Office.

    The VPP Policies and Procedures Manual will be revised to reflect the changes included in this memorandum.

Attachment

ATTACHMENT

29 CFR, Part 1904.39, Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA.

1904.39(a)(1)
Within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor.

1904.39(a)(2)
Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee's amputation or an employee's loss of an eye, as a result of a work-related incident, you must report that in-patient hospitalization, amputation, or loss of an eye to OSHA.

1904.39(a)(3)
You must report the fatality, inpatient hospitalization, amputation, or loss of an eye using one of the following methods:

1904.39(a)(3)(i)
By telephone or in person to the OSHA Area Office that is nearest to the site of the incident.

1904.39(a)(3)(ii)
By telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).

1904.39(a)(3)(iii)
By electronic submission using the reporting application located on OSHA's public Web site at www.osha.gov.

1904.39(b)
Implementation

1904.39(b)(1)
If the Area Office is closed, may I report the fatality, in-patient hospitalization, amputation, or loss of an eye by leaving a message on OSHA's answering machine, faxing the Area Office, or sending an email? No, if the Area Office is closed, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye using either the 800 number or the reporting application located on OSHA's public Web site at www.osha.gov.

1904.39(b)(2)
What information do I need to give to OSHA about the in-patient hospitalization, amputation, or loss of an eye? You must give OSHA the following information for each fatality, in-patient hospitalization, amputation, or loss of an eye.

1904.39(b)(2)(i)
The establishment name;

1904.39(b)(2)(ii)
The location of the work-related incident;

1904.39(b)(2)(iii)
The time of the work-related incident;

1904.39(b)(2)(iv)
The type of reportable event (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye);

1904.39(b)(2)(v)
The number of employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;

1904.39(b)(2)(vi)
The names of the employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;

1904.39(b)(2)(vii)
Your contact person and his or her phone number; and

1904.39(b)(2)(viii)
A brief description of the workrelated incident.

1904.39(b)(3)
Do I have to report the fatality, inpatient hospitalization, amputation, or loss of an eye if it resulted from a motor vehicle accident on a public street or highway? If the motor vehicle accident occurred in a construction work zone, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye. If the motor vehicle accident occurred on a public street or highway, but not in a construction work zone, you do not have to report the fatality, inpatient hospitalization, amputation, or loss of an eye to OSHA. However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

1904.39(b)(4)
Do I have to report the fatality, inpatient hospitalization, amputation, or loss of an eye if it occurred on a commercial or public transportation system? No, you do not have to report the fatality, in-patient hospitalization, amputation, or loss of an eye to OSHA if it occurred on a commercial or public transportation system (e.g., airplane, train, subway, or bus). However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

1904.39(b)(5)
Do I have to report a work-related fatality or in-patient hospitalization caused by a heart attack? Yes, your local OSHA Area Office director will decide whether to investigate the event, depending on the circumstances of the heart attack.

1904.39(b)(6)
What if the fatality, in-patient hospitalization, amputation, or loss of an eye does not occur during or right after the work-related incident? You must only report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident. For an in-patient hospitalization, amputation, or loss of an eye, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident. However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.

1904.39(b)(7)
What if I don't learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye right away? If you do not learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye at the time it takes place, you must make the report to OSHA within the following time period after the fatality, in-patient hospitalization, amputation, or loss of an eye is reported to you or to any of your agent(s): Eight (8) hours for a fatality, and twenty-four (24) hours for an in-patient hospitalization, an amputation, or a loss of an eye.

1904.39(b)(8)
What if I don't learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident? If you do not learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident, you must make the report to OSHA within the following time period after you or any of your agent(s) learn that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident: Eight (8) hours for a fatality, and twenty-four (24) hours for an inpatient hospitalization, an amputation, or a loss of an eye.

1904.39(b)(9)
How does OSHA define "in-patient hospitalization"? OSHA defines inpatient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment.

1904.39(b)(10)
Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing? No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each inpatient hospitalization that involves care or treatment.

1904.39(b)(11)
How does OSHA define "amputation"? An amputation is the traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.

[66 FR 6133, Jan. 19, 2001; 79 FR 56187-56188, September 18, 2014]

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