The Occupational Safety and Health Administration (“OSHA”) rolled out its Severe Violator Enforcement Program (“SVEP”) in 2010 and has touted it as a key tool in the enforcement of sanctions against employers whom OSHA believes demonstrate indifference towards their workplace safety and health obligations. In 2015 alone, more than 100 employers were placed on the Severe Violator log, subjecting them to increased, multi-worksite inspections. According to OSHA’s Severe Violator Enforcement Program White Paper (January 2013), half of all SVEP cases concern small employers with twenty-five employees or less. This article details the SVEP and recommends actions employers should consider to ensure that they are not identified as Severe Violators.
Criteria for Selection
Any inspection that meets one or more of the following criteria will make an employer a candidate for Severe Violator enforcement:
- Fatality/Catastrophe – if OSHA finds one or more willful or repeated violations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations
- High Emphasis Hazards – if OSHA finds two or more willful or repeated violations or failure to abate notices based on high gravity serious violations related to a high emphasis hazard (such as fall hazards, amputation hazards, combustible dust hazards, crystalline silica hazards, lead hazards, excavation/ trenching hazards, or shipbreaking hazards)
- Hazards Due to the Potential Release of a Highly Hazardous Chemical – related to petroleum refinery hazards
- Egregious Violations – all per-instance enforcement actions.
Consequences of Selection
Placement in the program will trigger onerous consequences for employers. The possibilities include any of the following:
- Enhanced Follow-Up Inspections – a follow-up inspection must be conducted by OSHA after the SVEP-related citations become final; the purpose of the follow-up includes assessment of whether the employer is committing similar violations
- Nationwide Inspections of Related Workplaces/Worksites – establishments that share common ownership, including corporate subsidiaries, affiliates and parents, may be targeted to determine if there is a pattern of noncompliance
- Increased Company Awareness of OSHA Enforcement – OSHA will mail copies of citations and notices to company headquarters and to employee representatives, such as unions
- Enhanced Settlement Provisions – OSHA will consider pushing Severe Violators to accept settlement terms that include: 1) hiring an independent consultant to develop and implement a compliance program; 2) applying the agreement company-wide; 3) implementing interim abatement controls if full abatement will take time; 4) providing a list of all current and future job sites for a period of time; 5) submitting logs of all work-related injuries and illnesses for a period of time and consenting to OSHA inspections based on the information; and 6) providing employer consent to entry of a court enforcement order
- Enforcement Orders – OSHA will strongly consider seeking court enforcement orders in Severe Violator cases to assure compliance
Removal from the Program
A controversial element of the SVEP is the fact that placement is based merely upon the issuance of citations, before a company has had a chance to defend itself and prove that it does not merit placement in the SVEP. Once in the program, a company has to suffer the consequences until it comes off the Severe Violator log.
The only two ways an employer can come off the log are by “lining out” or by formal removal. Lining out occurs either by a settlement agreement or court adjudication that deletes or reclassifies the citations such that they no longer qualify the employer for the SVEP. As the agency has explained in its Severe Violator White Paper, lining out indicates that the employer should not have been included in the program in the first place. The adjudicatory process can take several years, while the employer remains listed on the agency’s website as a Severe Violator and may have been the subject of a press release labeling them a Severe Violator. Such a black mark can have a negative impact on a company’s dealings with unions, employees, contractors, insurers and customers.
Formal removal from the log occurs only after an employer meets certain good behavior criteria. As an initial matter, employers must remain in the SVEP a minimum of three years after they either accept the citations or the case is fully adjudicated. During that period, the employer must abate all SVEP-related hazards; pay all final penalties; abide by and complete settlement terms; and avoid receiving any additional serious citations related to the hazards that put it into the SVEP at the initial workplace or any related workplaces. This last requirement can be a tall order, especially given that subsequent inspections are conducted by inspectors who perceive the employer as a Severe Violator before they even cross the threshold.
Best Practices for Avoiding Placement in the Severe Violator Program
Employers should consider implementing the following practices, with counsel:
- strengthen communications among all related workplaces regarding OSHA enforcement at any one workplace
- conduct periodic audits to ensure that all recent citations have been fully abated and that similar problems do not exist at related workplaces
- identify job sites where high-emphasis hazards are present and periodically audit safety practices in these areas
- employers who have received citations arising out of a fatality or catastrophe should consider proactive strategies to avoid future placement in the program, such as hiring an independent safety consultant
- if initially placed in the program and there are grounds for doing so, contest the citations with the goal of reclassifying them so that lining out is achieved.
As the old saying goes, the best defense is a good offense, especially when the odds of emerging from the SVEP are so slim.