What the court defeat of the Cooperative Compliance Program means for OSHA's rulemaking future and your workplace.
On April 9, the U.S. Court of Appeals for the District of Columbia struck down OSHA's Cooperative Compliance Program (CCP), an initiative developed to leverage the agency's resources by forcing employers to adopt comprehensive safety and health programs or face wall-to-wall inspections. Chamber of Commerce of the United States, et al v. Department of Labor, United States Court of Appeals for the District of Columbia, Docket No. 98-1036. The court's decision may have an important impact on the comprehensive safety and health programs rule OSHA may propose as early as July. In addition, OSHA recently issued an inspection plan in response to the court's decision that will initially result in programmed inspections for facilities with lost workday injury rates of 16.0 or higher, followed by inspections of facilities with rates between 10.0 and 16.0.
In November 1997, OSHA issued CPL 2-0.119 titled "High Injury/Illness Rate Targeting and Cooperative Compliance Programs," popularly known as CCP. OSHA targeted employers for participation in CCP based on the results of the 1996 Data Collection Initiative, a survey sent to 80,000 employers in certain SIC codes requesting injury and illness rate information. Employers with lost workday injury rates of 7.0 or higher were sent letters asking if they wanted to participate in CCP. Employers who agreed to participate were taken off the "primary inspection list"; those who declined faced an almost-certain programmed inspection.
CPL 2-0.119 described the program as "an alternative enforcement strategy" offering employers "a choice between a traditional inspection and working cooperatively with OSHA to reduce injuries and illnesses in the workplace." Participating employers were obligated to "identify and correct" safety and health hazards; "actively involve" workers in the "identification and abatement of hazards," implement a "comprehensive safety and health program" based on OSHA's 1989 voluntary guidelines, "actively involve" workers in the safety and health program, and "work significantly to reduce" their lost workday injury and illness (LWDII) rates.
OSHA clearly envisioned in CCP a means to require employers to go beyond the compliance obligations of the Occupational Safety and Health Act (OSH Act). CPL 2-0.119 states that "although compliance with the law, including specific OSHA standards, is an important objective, an effective program looks beyond specific requirements of law to address all hazards; it will seek to prevent injuries and illnesses, whether or not compliance is at issue." CCPs' safety and health program component required employers to identify and abate many hazards that are not the subjects of OSHA standards. According to CPL 2-0.119, an effective safety and health program mandates that the employer comply with "voluntary standards," "industry practices" and even "suppliers' safety recommendations." Thus, CCP contemplated the following trade-off: In exchange for abating hazards identified in a variety of sources and going beyond the compliance obligations of OSHA standards and, conceivably, the General Duty Clause, the employer is alm ost assured of avoiding programmed inspections.
CCP was challenged by a group of industry associations led by the U. S. Chamber of Commerce that included the National Association of Manufacturers, the American Trucking Association and the Food Marketing Institute. The Chamber's basic argument was that CCP was a substantive rule that required OSHA to use notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA). In addition, the Chamber argued that CCP violated the Fourth Amendment because the primary inspection list of employers was not compiled neutrally. The employers who end up on the list, the Chamber argued, are not there for neutral reasons, rather, because other employers have removed themselves from the list by agreeing to participate in CCP. …