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
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.
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.
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.
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:
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.