November, 9 2009

This memorandum which supplements my August 3, 2009 memorandum -- "Improving the Administration of the Voluntary Protection Programs (VPP)" -- delineates additional actions you will implement in OSHA's continuing efforts to improve its administration of VPP. The following instructions clarify issues and procedures related to the VPP onsite evaluation teams' conduct of onsite evaluations and the phase-out of a VPP pilot, the Modified Application Process (MAP). Unless otherwise noted, these instructions are effective immediately.

1. Modified Application Process (MAP)
   
   The MAP is being phased out. No further VPP applications using the MAP will be accepted. If you have received a MAP application, you may continue its processing so long as you can complete the VPP onsite evaluation by December 31, 2009. If an onsite evaluation for a MAP applicant cannot be completed by December 31, 2009, the Region must return the application to the applicant and request that the applicant submit a new application using the standard VPP application format.
    
2. Medical Access Orders (MAO)
    
   1. Timeframe for Submitting an MAO Request. VPP Team Leaders are to submit their MAO request at least three (3) weeks prior to a scheduled onsite evaluation. Please do not submit requests more than five weeks in advance because information may change.
       
   2. 15-Day Posting Requirement. The Directorate of Technical Support and Emergency Management (DTSEM) has advised that the current VPP Policies and Procedures Manual requirement - that facilities must post the approved MAO and cover letter for at least 15 working days prior to a VPP onsite evaluation – is a misinterpretation of federal regulation. "Access to employee exposure and medical records," 29 CFR 1910.1020, provides in part:
      
      (e)(3)(ii) Whenever OSHA seeks access to personally identifiable employee medical information by presenting to the employer a written access order pursuant to 29 CFR 1913.10(d), the employer shall prominently post a copy of the written access order and its accompanying cover letter for at least fifteen (15) working days.
      
      The VPP requirement is therefore modified to be consistent with the Code of Federal Regulations.
       
   3. Union Notification. Regions are reminded to follow the "Rules of agency practice and procedure concerning OSHA access to employee medical records" (29 CFR 1913.10), including:
      
      (e)(1) The Principal OSHA Investigator, or someone under his or her supervision, shall present at least two (2) copies each of the written access order and an accompanying cover letter to the employer prior to examining or obtaining medical information subject to a written access order. At least one copy of the written access order shall not identify specific employees by direct personal identifier. The accompanying cover letter shall summarize the requirements of this section and indicate that questions or objections concerning the written access order may be directed to the Principal OSHA Investigator or to the OSHA Medical Records Officer.
      
      (e)(2) The Principal OSHA investigator shall promptly present a copy of the written access order (which does not identify specific employees by direct personal identifier) and its accompanying cover letter to each collective bargaining agent representing employees whose medical records are subject to the written access order.

The VPP Policies and Procedures Manual will be revised to reflect all changes included in this memorandum. If you have any comments or questions, please contact the Directorate of Cooperative and State Programs, Office of Partnerships and Recognition.