OSHA's Cooperative Compliance Program (CCP) is illegal and cannot be used by the agency because it is, in essence, a standard and the agency failed to allow for the required stakeholder review and comments prior to implementation, according to a decision by the U.S. Court of Appeals for the District of Columbia Circuit.
After reviewing the case, the court found that CCP "is a standard." The court said, "OSHA may not ... tell employers in one breath that participation in the CCP requires more than mere compliance with the OSH Act, which clearly ups the substantive ante, and tell us in the next that the sole purpose of the CCP is to make unnecessary the inspections it performs in order to uncover violations of the act."
Since CCP amounts to a new government regulation, the agency has to go through the rigorous standard-setting process, which includes a comment period, before it can be implemented, the court said.
OSHA unveiled CCP last January as a way to target high-hazard workplaces. The agency declared that 12,250 employers with lost workday injury and illness rates of 7.0 or higher nearly twice the national average of 3.6 would agree to join the program or face a wall-to-wall inspection. The plan called for each employer to identify and correct hazards, including ergonomics hazards, and create a safety and health program that fully involved employees.
Shortly after CCP was released, the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM) and other industry groups filed a lawsuit claiming the program was an agency attempt to circumvent the law. The lawsuit said the agency was trying to force employers to go beyond what is required by OSHA rules without allowing input. Industry felt that the agency was pushing for an ergonomics rule, a safety and health program regulation and other standards it was having trouble getting through the rigorous standard-setting process.
"This is an unmistakable victory over ambush rulemaking," said Jennifer Krese, NAM's director of employment policy. "The manner in which OSHA tried to ram this 'cooperative' program down manufacturers' throats was more like coercion than cooperation."
The agency claimed and still claims CCP is merely an enforcement strategy.
"We continue to believe that the Cooperative Compliance Program would benefit employers, employees and taxpayers by enabling OSHA to focus our enforcement efforts on the most dangerous workplaces," said Secretary of Labor Alexis Herman. "We will continue to zero in on workplaces where high injury and illness rates show that people are being hurt."