OSHA: Federal Court Blocks Compliance Program

April 1, 1998 Advisory
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On February 17, 1998, the U.S. Court of Appeals for the D.C. Circuit granted an industry groups' petition for an emergency stay temporarily blocking the implementation of OSHA's Cooperative Compliance Program (CCP). OSHA had hailed the CCP as an alternative enforcement strategy, inviting certain employers to implement a comprehensive safety and health program rather than face traditional inspections. The CCP targeted 12,000 employers in 29 states, including Connecticut, mostly from manufacturing and health care, that had injury and illness rates that were at least twice the national average.

OSHA sent each employer a letter informing the businesses that they were on OSHA's primary inspection list, but could reduce their chances of an inspection if by February 17, 1998, (extended from January 30, 1998) the business elected to participate in the CCP. By electing to participate, the employer had to agree to implement a comprehensive safety and health program including, among other requirements, work site analysis, and worker involvement. If the employer failed to participate, then that employer remained on OSHA's high hazard, primary inspection list and would undergo an OSHA comprehensive, wall-to-wall inspection within the year.

The Stay and its Effect
Lead by the United States Chamber of Commerce, an industry group, including the National Association of Manufacturers, the American Trucking Association, Inc. and the Food Marketing Institute filed suit on January 22, 1998 in the U.S. Court of Appeals for the D.C. Circuit to strike down OSHA's Cooperative Compliance Program. The industry group charged that OSHA's CCP constituted a standard that had not been properly promulgated, and would force employers to address areas such as ergonomics where there is no standard. Further, the industry group alleged that OSHA was coercing employers into participating in the voluntary project by threatening mandatory, white-glove inspections.

The effect of the temporary stay is that OSHA cannot go forward with enforcing the Cooperative Compliance Program until the Court issues an opinion on the validity of the program. Targeted employers, therefore, are not required to notify OSHA about their election to participate, and the CCP is currently unenforceable as to those that already have. OSHA may continue to inspect employers for the purpose of verifying the accuracy of their recordkeeping. However, no walkaround, comprehensive inspections are authorized in regards to record verification inspections, and OSHA may not conduct any inspection pursuant to the CCP.

The parties in the case do not expect the Court to make a final decision on the merits of the Cooperative Compliance Program until, at the earliest, the fall and possibly not until 1999.