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OSHA’s Severe Violators Offered a Fresh Start
 

By Roy Maurer  9/13/2012
 

Since the June 2010 start of the Severe Violator Enforcement Program (SVEP), the Occupational Safety and Health Administration (OSHA) has named 330 employers as severe violators, according to OSHA data.

Fifty-nine establishments that had been added to the list since the program’s start have been removed after successfully appealing a citation that landed them in the program. How else can an employer get off the bad-actor list?

OSHA issued a memorandum Aug. 16, 2012, to its regional administrators informing them of the criteria employers must meet to be removed from the SVEP, a program that subjects employers to more-significant enforcement measures and penalties for willful, repeat and failure-to-abate violations of the Occupational Safety and Health (OSH) Act.

To be declared a severe violator, an employer must have experienced a fatality or an accident that hospitalized at least three workers or must have been cited for significant violations of OSHA standards, especially if the violations were found as part of a national emphasis program.

Once an establishment is designated a severe violator, OSHA may inspect other worksites of the employer. Also, the employer is expected to establish a safety program that could involve outside consultants and frequent follow-up visits by OSHA inspectors.

Criteria for Removal from the SVEP

According to the memorandum, an employer may be considered for removal from the program by an OSHA regional administrator after:

  • Three years have passed from the final disposition of the citation that produced the SVEP designation. Final disposition includes a final order from the Occupational Safety and Health Review Commission, a court of appeals decision, a settlement agreement with OSHA or a decision not to contest the citation.
  • All affirmed violations have been abated, all final penalties have been paid, the employer has abided by and completed all settlement provisions, and the employer has not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

In the event an employer fails to adhere to the terms and provisions of the agreement, the employer will remain in the program for an additional three years and will then be re-evaluated, OSHA said.

Approval of the employer’s removal will be at the discretion of the regional administrator except in cases where national corporatewide settlements are involved. The decision on those employers’ SVEP status will be made by OSHA’s Directorate of Enforcement office in Washington, D.C.

“I’m pleased to see OSHA take real steps to improve SVEP procedures; however, I remain disappointed that it took a federal agency this long to finish what was an otherwise incomplete policy,” Sean Thurman, legislative director for Associated Builders and Contractors (ABC), told SHRM Online.

From a policy standpoint, it was irresponsible to establish such a harsh program with no means of ever getting out, Thurman said. “ABC and its members strive for zero-accident worksites and believe in world-class safety practices, and I take OSHA at its word that entities on the SVEP list deserve to be there. However, the inclusion of removal criteria merely brings the program in line with what should be deemed acceptable public policy in this country,” Thurman said.

Eric Conn, head of the OSHA Practice Group at Epstein Becker Green in Washington, D.C., finds much fault with the removal criteria. “I find it grossly unfair that OSHA will not start the three-year clock for removal from SVEP until after the underlying enforcement action becomes a final order, but at the same time the agency does not wait for a final order to qualify employers for the program in the first instance,” Conn told SHRM Online. As a result, employers feel the adverse consequences of being in the program before OSHA has proved that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP, Conn said. “In my opinion, by initiating the punitive elements of the SVEP for employers whose alleged violations have not yet become a final order, OSHA is not only treating employers unfairly, the agency is actually violating the due process guarantees of the U.S. Constitution,” he added.

Conn pointed out that more than two-thirds of SVEP cases are contested by the cited employer. Of the 200-plus contested SVEP cases reflected on OSHA’s SVEP log, nearly half of the employers still have open contests and the case has not yet been resolved, according to Conn. “Some of those employers have been on the list for more than two years despite OSHA not proving that the named employer violated a single OSHA standard, and, during that time, the employer suffered the consequences,” he explained.

According to Conn, employers that exercise their rights to challenge OSHA citations are effectively punished because the three-year penalty period will not begin until the challenge has been decided, which itself may drag on for years.

Another problem with the removal guidelines, according to Conn, is that an employer’s place in the program can be extended not by the type of willful and repeat violations that are required to initially qualify, but by any related serious violation. “Over the past three years, OSHA has been handing out serious violations like Halloween candy,” Conn said. Between 2006 and 2010, the types of violations that will keep employers in the SVEP were up 247 percent while the types of violations that are allowable (known as other-than-serious violations) were down more than 10 percent, he said.

In an environment where OSHA is conducting a series of follow-up inspections as mandated by the SVEP, and the agency characterizes virtually every alleged violation as serious or worse, the exit ramp from the SVEP seems “more like a tightrope without a net,” Conn said.

Roy Maurer is an online editor/manager for SHRM.

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