On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.
Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.
Historical Per-Instance Enforcement
OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.” This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful. Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →
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:
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.
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 Continue reading →
On August 17, 2022, Aaron R. Gelb and special guest, Tabitha Thompson, presented a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.
Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar took a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.
Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar will take a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.
As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry. That is the origin of OSHA’s controversial policy of “Regulation by Shaming.” During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the piècede résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.
The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.
[Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
[Part 2]: Five common mistakes employers make when implementing the LOTO requirements.
Part 1: Why it is Critical for Employers to Get LOTO Right
The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.
Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized. Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled. The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.
OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.” OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.
While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.
1. Amputation Injuries Create Special Reporting Obligations
Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA. Continue reading →
The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat. The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014. OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.
Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual. The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.
In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years. Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.
The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy. OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading →
OSHA’s Severe Violator Enforcement Program (SVEP) is an enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.” Employers who “qualify” for SVEP by being accused of committing Willful or Repeat violations in certain categories face a heavy dose of public shaming, but more importantly, will receive a heavy dose of OSHA inspections at the same and related facilities throughout the organization. The SVEP also includes a harsh and unrealistic “exit criteria,” so once you check in, you may never leave. To make matters worse, OSHA qualifies employers into SVEP just based on allegations, not proven violations.
The webinar explained what SVEP is, reviewed how employers qualify, described the types of companies that are being ensnared and in what circumstances, and provided recommendations for how to avoid SVEP and how to get removed if you do qualify.
Topics included:
Background about the Severe Violator Enforcement Program
It has been five years since OSHA launched its Severe Violator Enforcement Program (“SVEP”), and two years since an agency White Paper trumpeted the program’s “strong start” and progress on “key goals.” A closer examination of OSHA’s SVEP data, however, reveals that:
SVEP disproportionately targets small employers;
SVEP cases are contested more often than other OSHA citations;
OSHA has trouble conducting follow-up inspections of small employers, especially those in the construction industry; and
The program fails to reach the recalcitrant employers it was designed to target.
The fact is, SVEP (which succeeded OSHA’s controversial Enhanced Enforcement Program) has shown troubling trends from the start. Not only do the criteria weigh against smaller employers, but the consequences for employers thus labeled are dire, placing them in a precarious position, even before OSHA has proven that the employer violated the law at all, let alone in such an egregious manner as to warrant inclusion in SVEP.
Repeat Overkill
SVEP was instituted to target “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.” To that end, OSHA created four categories that would land an employer in SVEP. However, over the life of the program, one qualifying category has been invoked predominantly: an employer who has two or more willful, repeat, or failure-to-abate citations related to High Emphasis Hazards (NF-2WRF).
Willful violations are those committed by an employer who knows the applicable standard but intentionally disregards it. Repeat violations have a much lower standard and require no aggravated intent. The employer does not have to know the law or be indifferent to safety.
Through the first several years of SVEP, this NF-2WRF category accounted for nearly 70% of all SVEP cases. On the surface, this suggests that the program is reaching those bad actors, who deliberately flout the law; i.e., employers that have committed multiple willful violations. However, the reality is that only one in four qualifying cases involves any willful violations. More than 75% of this category is based on repeat violations, which, again, do not require any specific or aggravated intent.
Moreover, OSHA reports that nearly 60% of SVEP employers have fewer than 25 total employees, and 75% have fewer than 100. Often, these employers are not “recalcitrant” and have not acted with indifference toward safety or the law. Rather, they generally do not know what OSHA’s vast portfolio of regulations require and/or lack the resources to comply.
Bad Timing
An employer is entered into SVEP at the outset of an OSHA case, prior to an 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:
Mandatory follow-up inspections at that cited facility and up to ten sister facilities within the organization; and
More expansive settlement terms than ever before, 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.
Getting Out
More than half of SVEP citations have been contested, with 30% of those contests still in process. Some disputed citations have taken more than three years to resolve.
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming. It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings. There are also links below to the registration pages for the remaining webinars in the series. Check out the completed webinars and plan to join us for all or some of the rest of the series.
