OSHA is coming under criticism because of changes it has made to its Safety and Health Achievement Recognition Program (SHARP).  The details were outlined in a memorandum to Regional Administrators dated November 24, 2014.  However, opponents to the changes are upset because the memorandum was not posted on OSHA’s website and the decision to limit the size of employers who are eligible for the SHARP program is being viewed as a disincentive for employers to participate in the program. In addition, states with approved State Plans are required to implement the new consultation procedures.

The November memorandum references the size requirements outlined in the Consultation Policies and Procedures Manual (CPPM) Ch. 8, II for employer eligibility:

The size requirements for participation in SHARP are employers with 250 or fewer onsite employees and fewer than 500 corporate-wide employees.

Enforcing these size limits reverses a February 2012 memorandum in which OSHA allowed employers who did not meet the size requirements to nonetheless be considered for the program with prior approval from the Regional Administrator or State Designee.   In its’ November 24, 2014 memorandum, OSHA states that the reasoning behind this flexible approach was “to consider for SHARP the subsidiaries of larger companies that did not receive adequate support from their parent company for establishing a safety program.”

One of SHARP’s appeals is that participation is free and companies meeting all the eligibility requirements are exempt from programmed OSHA inspections for 2 or 3 years.  The first step in the program is for an employer to request a visit from an OSHA-approved consultation service which then inspects the worksite and any hazards identified during that inspection must be corrected by the employer.  On-Site Consultation Projects and the employer work collaboratively to assist the employer in meeting SHARP standards.  The amount of time required to successfully operate On-site Consultation Projects has led OSHA to the conclusion that it needs to tailor the program by concentrating its focus on small businesses.  According to the memorandum, OSHA “is therefore implementing a more definitive interpretation of the Employer Eligibility requirements.”   Although companies with more than 500 corporate-wide employees are now exempt from participating in the program, this does not include individual franchisees which are not owned by the corporation but are operated as distinct corporate entities.

OSHA has come under further fire because the memorandum applies retroactively.  Companies who are no longer eligible for SHARP will not be grandfathered-in but will instead be encouraged to participate in the Voluntary Protection Program (VPP) which is an alternative cooperative program offered by OSHA aimed at large employers.  Employers wishing to participate in VPP undergo a vigorous evaluation but may also be exempt from programmed OSHA inspections while they maintain VPP status.  OSHA has defended its position, but it also recognizes that it takes time to apply for VPP and the changes to SHARP will result in a backlog.  In a conciliatory move, OSHA is allowing companies who until recently were eligible for SHARP to remain in the program while they await completion of their VPP evaluation, provided they submit their application within a year of the November 2014 memorandum and also that they continue to meet other eligibility requirements.  To learn more about VPP, see https://www.osha.gov/dcsp/vpp.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.