The Occupational Safety and Health Administration (OSHA), like many federal agencies, has finite resources for carrying out its essential functions. Such limitations mean it simply isn’t feasible, nor efficient or effective, for OSHA regulators to visit every employer in the country in order to ensure the safety of workers. Apart from increasing technology and streamlining reporting requirements, OSHA took an infamous turn toward targeting its efforts and resources to employers deemed more likely to violate workplace health and safety regulations. Its solution: The Severe Violator Enforcement Program.
OSHA’s Severe Violator Enforcement Program (SVEP) has received mixed feedback in the nearly 10 years since it has been in effect. Sometimes hailed by safety advocates for protecting workers against the worst of the worst, it’s often denigrated by employers who feel the program’s focus on shame and severe penalties unfairly create insurmountable barriers for some businesses. What’s largely agreed upon, however, is that the program is one you don’t want to find yourself in if you’re an employer.
Below, our OSHA defense attorneys break down OSHA’s Severe Violator Enforcement Program and a few important things you should know.
1. Why SVEP Was Created
OSHA’s Severe Violator Enforcement Program was launched in June of 2010 to replace the Enhanced Enforcement Program (EEP), which was criticized heavily by government auditors. The program’s mission, as the name implies, focuses on the worst of the worst; employers which have demonstrated indifference to their OSHA obligations through repeated, willful, or failure-to-abate violations. It was arguably one of the broadest workplace safety initiative in recent years.
Among the many changes from its predecessor, SVEP was intended to prevail where EEP failed. That meant the new program would:
- Enforce more stringent requirements
- Target High-Emphasis Hazards (i.e. fall hazards)
- Facilitate follow-up inspections for “recalcitrant” employers
- Create a nationwide referral procedure
2. How an Employer Is Placed into SVEP
“Severe Violator” wouldn’t be much of a title for a program which targets employers for violating minor workplace regulations, which is why OSHA has criteria for placing employers into it Severe Violator Enforcement Program. Per the SVEP directive, employers must meet at least one of the following:
- Fatality / Catastrophe Inspections (following employee death or hospitalization of 3 or more workers) which result in a citation for a willful or repeat violations, or a failure to abate notice for a serious violation.
- High-Emphasis Hazards cited as the basis for 2 or more willful, repeat, or failure-to-abate violations. These may include falls, trenching, amputations, and other hazards identified in Section XII.
- Potential Hazard Chemical Release cited as the basis for citations for 3 or more willful, repeat, or failure-to-abate violations, as defined in the PSM standard.
- Egregious Enforcement Actions, meaning all per-instance citations
3. How SVEP Uses Public Shaming
One of SVEP’s most notable aspects is its SVEP case log, which is made available online. Regularly published case logs detail the names, locations, and citations of employers in the program.
For some of the more than 600 employers listed on SVEP’s list of bad actors (as of March 1, 2019), such as chemical conglomerate DuPont, the shaming may not have overtly devastating consequences. For others, including smaller employers and the large percentage of construction companies in the program, many with under a dozen workers, it can be a potentially fatal blow.
4. Consequences of SVEP Status
Because the program qualifies employers into SVEP at the issuance of a citation, prior to an employer being able to defend itself against alleged violations, employers are immediately subject to consequences. In addition to subjecting employers to a form of public shaming by publishing their status as a Severe Violator, other penalties and indirect consequences include:
- Mandatory follow-up inspects, at the cited facility and multiple sites within the company
- Expansive settlements, including mandatory hiring of personnel and company-wide terms
- Reputational harm, lost clientele or contracts
- Loss of personnel and deterrence to prospective employees
- Difficulties with business loans and lines of credit
5. Getting Out of the SVEP
Once in, it’s tough to get out – at least for three to six years. Two ways to do so include formal processes known as “Lining out” or “Removal.”
- Lining Out – Lining out requires an Informal Settlement Agreement, Formal Settlement Agreement, or adjudication from the court to delete the classification, or reclassify the citation so it no longer meets the criteria for SVEP status, which results in being “lined out” of the log. Settlements, either informal or formal, require employers to prove their arguments for factual changes in their case and provide evidence.
- Removal – SVEP cases may be removed when employers meet certain criteria for good behavior. After three years, from a SVEP inspection disposition, employers may qualify if they abate related hazards, pay all penalties, comply with settlement terms, and remain free from any new serious citations relating to hazards identified in the initial SVEP inspection (at the facility in question and any related site). Failing to meet these criteria means an employer must remain on the SVEP log for an additional three years.
Of course, the best way to get off the list is to never get there in the first place. Prevention is a step in that direction, as is working with experienced lawyers to ensure compliance proactively. In the event employers do face actions which may lead to SVEP status – such as experiencing a fatality or catastrophe on a worksite, being notified of a pending inspection, or being cited for a criteria violation – acting fast to prepare, respond, and contest accordingly is critical.
Hendershot Cowart P.C.: OSHA Lawyers Protecting Your Business
The OSHA defense attorneys at Hendershot Cowart P.C. help employers throughout Texas and beyond protect their workers from preventable harm, and their businesses from potentially disastrous repercussions. We do this by providing both proactive / preventive counsel, as well as responsive defense.
Call (713) 909-7323 or contact us online to speak with an OSHA attorney.