By Eric J. Conn and Ashley D. Mitchell

On September 15, 2022, OSHA announced a significant set of updates to its dreaded Severe Violator Enforcement Program (“SVEP”), the first update to the program in over a decade. In a Press Release accompanying the update, Doug Parker, the Assistant Secretary of Labor for OSHA, explained:

The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . . Today’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.

Two of the three SVEP-qualifying criteria have not changed, and they are:

1. Fatality/Catastrophe Criterion – A fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death or three or more employee hospitalizations.
2. Egregious Criterion – All egregious enforcement actions (i.e., per-instance citations).

But historically, the principal way that employers “qualified” into SVEP was by enforcement actions that included 2+ willful or repeat violations related to a particular set of standards that represented “high emphasis hazards.” Indeed, that criteria has accounted for more than 70% of all SVEP-qualifying citations. Those “high emphasis hazards” essentially reflected the subjects of OSHA’s active enforcement National Emphasis Programs, including:

• Fall Hazards in all industries
• Amputation Hazards covered by Lockout/Tagout and Machine Guarding standards
• Combustible Dust Hazards
• Crystalline Silica Hazards
• Lead Hazards
• Grain Handling Hazards
• Excavation/Trenching Hazards

The most important change in the updated SVEP is that OSHA has eliminated the high emphasis hazard element of the qualifying criteria. That is, to fall into SVEP now, an employer merely needs to receive two or more high gravity Repeat or Willful violations (or Failure to Abate notices) in the same inspection involving any hazards/any standards.

This is a substantial change that will result in exponentially more employers qualifying into SVEP.  OSHA data indicates that there would have been at least 100 more SVEP cases last year if this criteria was in effect.  It is not surprising to see more changes from OSHA designed to sharpen its enforcement teeth under the Biden Administration, especially given President Biden’s promise to be the most labor friendly administration in history.

What is a “High Gravity” Violation?

There is still a requirement that the Repeat and Willful violations be “High Gravity,” which means they have both a high severity and a greater probability. To determine the gravity of a violation, OSHA will make following two assessments:

• The severity of the injury or illness which could result from the alleged violation.
• The probability that an injury or illness could occur as a result of the alleged violation.

There are 3 severity types, low medium and high, but only a high severity hazard qualifies an employer for SVEP, coupled with a greater probability.

• High Severity hazards are those that pose a risk of death from injury or illness; injuries involving permanent disability; or chronic, irreversible illnesses.
• Medium Severity. Injuries or temporary, reversible illnesses resulting in hospitalization for a variable but limited period of disability.
• Low Severity. Injuries or temporary, reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment

If the severity is high, OSHA then will look at probability, which will be categorized either as greater or as lesser.

• Greater Probability: Results when the likelihood that an injury or illness will occur is judged to be relatively high.
• Lesser Probability: Results when the likelihood that an injury or illness will occur is judged to be relatively low.

OSHA will consider the following factors when evaluating probability:

• Number of employees exposed;
• Frequency and duration of employee exposure to hazardous conditions, including overexposures to contaminants;
• Employee proximity to the hazardous conditions;
• Use of appropriate personal protective equipment;
• Medical surveillance program;
• Age of employees;
• Training on the recognition and avoidance of the hazardous condition;
• Other pertinent working conditions

What else about SVEP has OSHA changed?

The updated SVEP directive does change the manner in which OSHA implements the follow-up and sister facility inspections that come with being an SVEP employer. While this change is not as substantial, it does show a focus on qualifying large national employers into the program and then using the program as a tool to get into numerous sites around the country.

Finally, the Directive permits OSHA to maintain employers on the SVEP Public Log for at least three years from the date of receiving acceptable abatement verification. Historically, OSHA did not begin the removal clock until the qualifying citations became a Final Order of the OSH Review Commission.  Presumably now, an employer could demonstrate that the hazard has been abated even while contesting and litigating the underlying citation, and get out of SVEP sooner.  But getting out is not automatic. To be eligible for removal, SVEP employers must show they have:

1. Abated all SVEP-related hazards;
2. Paid all final penalties;
3. Where applicable, followed and completed all applicable settlement provisions;
4. Received no additional serious citations related to the hazards identified in the original SVEP inspection or any related establishments; and
5. Received one follow-up or referral OSHA inspection.

The changes OSHA announced yesterday are not retroactive. They will apply only to new citations issued after September 15, 2022.

Within 60 days, state plans are required to submit a notice of intent indicating whether they will adopt or already have in place policies that are identical to or at least as effective as federal program update. State plans will have 6-months to adopt identical or different but as effective updates to their versions of SVEP.

The SVEP Updates Exacerbate the Historical Flaws in the Program

We have long been critical of the way OSHA implements SVEP.  Among its most egregious flaws are the timing for when employers qualify into SVEP and the agency’s focus on the wrong types of violations/violators, as discussed below. The updates just announced by OSHA do nothing to address those flaws.  Rather, they only stand to make them worse.

Bad Timing

Employers are entered into SVEP at the time OSHA issues its citations, which are nothing more than allegations of wrongdoing.  At that stage of an OSHA case, the employer has had no opportunity to defend itself and prove wrong OSHA’s alleged violations. Notwithstanding this end run around Constitutional Due Process, once in the program, SVEP employers are immediately subject to:

• Public shaming by OSHA through both an inflammatory, embarrassing, and one-sided press release detailing the alleged violations and by posting the employer’s name on a Severe Violator list on OSHA’s public website;
• Mandatory follow-up inspections at that cited facility and at numerous sister facilities within the organization; and
• More onerous settlement terms than typical cases, including corporate-wide requirements.

SVEP status also has serious indirect consequences:

• Harm to the company’s reputation;
• Loss of customers and clients;
• Defection by current employees and obstruction of recruiting prospective employees;
• Denial of, or increased interest rates on, business loans and lines of credit;
• Higher insurance rates or loss of insurance coverage; and
• Use of the SVEP designation in talking points for organized labor and interests adverse to the employers.

And all of this happens before any adjudication process—in other words, before OSHA proves that a violation of the law even occurred. And OSHA has a pretty awful track record of actually validating its SVEP qualifying citations. The last time we analyzed the data, OSHA was getting it wrong close to half of the time.  That is, more than 40% of employers who had been summarily dumped into SVEP based on alleged repeat and willful violations, either proved those allegations wrong through adjudication before OSHRC or convinced OSHA to withdraw or amend the citations through settlement negotiations.

Given this shoddy track record, one might have expected OSHA to update its SVEP directive in a way that would ensure fewer employers are unjustly qualified into SVEP (for example, by waiting until citations become a Final Order), but yesterday’s announcement will do the exact opposite.

The Wrong Targets

SVEP was instituted to target bad actors “who demonstrate indifference to the health and safety of their employees.”  To that end, OSHA designed the qualifying criteria to include willful and repeat violations related to high emphasis hazards.  True indifference to safety is what OSHA must demonstrate to establish a willful violation. Willful violations are those committed by an employer who knows the applicable standard but intentionally disregards it.  Those kinds of violations and violators, therefore, would seem to be an entirely appropriate subject of a program like SVEP.

However, OSHA has not focused its resources through SVEP on those willful violators. Whereas the vast majority of SVEP cases have been in that category (2+ willful or repeat violations related to a high emphasis hazard), very few have involved willful violations.  The 2+ willful or repeat high emphasis hazard category accounted for nearly 70% of all SVEP cases, but only one in four qualifying cases involved any willful violations. More than 75% of that 70% has been based on repeat violations, which, unlike willful violations, do not require any showing of specific or aggravated intent.  It simply requires the same standard to have been violated in a fed OSHA state within a five year period at any facility within the same organization.  For large national employers, a repeat violation may be more technicality than any indication of a bad actor.

Given that OSHA’s SVEP has done a poor job of focusing enforcement resources on willful violators, one might have expected OSHA to amend the SVEP directive to make sure OSHA was really targeting the right employers and the right kinds of violations.  Instead, by eliminating the high emphasis hazard requirement, this latest update to SVEP ensures that not only will OSHA continue to focus more on repeat violations than willful ones, but it also guarantees that OSHA will begin to squander more resources on lower priority hazards.

SVEP Strategies

Given the high stakes of SVEP, and the focus on repeat violations, employers should consider:

• Increasing communication among related facilities in the corporate family about OSHA activity at any facility;
• Proactively correcting any OSHA-cited condition at all locations after a citation at one location;
• Challenging and vigorously defending SVEP-qualifying citations because getting those citations withdrawn or re-characterized before they become a Final Order is the easiest way to get out of SVEP; and
• Challenging and vigorously defending any citations that have a high potential to be repeated.