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August 23, 2013
Lawyer disagrees with OSHA assessment of enforcement program

OSHA says its Severe Violator Enforcement Program (SVEP) is off to a good start and is already meeting some of its goals. But a review of the program by a law firm comes to different conclusions.

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Keep reading to learn who’s saying what and why.

The SVEP took effect in 2010. It targets “recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful repeated or failure-to-abate violations relating to significant hazards.”

Employers are placed in the special enforcement program if they meet criteria including:

  • Any egregious violation;
  • One or more willful or repeat violations or failure-to-abate notices associated with a fatality or overnight hospitalization of three or more employees;
  • Two or more willful or repeat violations or failure-to-abate notices in connection with a special emphasis hazard; or
  • Three or more willful or repeat violations or failure-to-abate notices related to process safety management.

The program replaces OSHA’s Enhanced Enforcement Program (EEP), which was criticized because the agency failed to conduct follow-up inspections.

Attorney Eric J. Conn questions OSHA’s positive assessment of the first 18 months of SVEP. After scrutinizing program data, Conn, who heads the OSHA practice group of Epstein Becker & Green P.C., found several “glaring problems with how the SVEP is being administered.”

According to Conn, the program:

  • Disproportionately targets small employers with enforcement rather than compliance assistance;
  • Provokes more than four times as many legal challenges compared to the average OSHA enforcement action;
  • Encounters significant obstacles in the execution of follow-up inspections of SVEP employers; and
  • Is not capturing the recalcitrant employers that are its target.
Conn states that another problem with the program is that OSHA places employers in the SVEP at the time it issues citations, not as a result of a final review of any contested citation. As a result, employers are branded as severe violators “before OSHA has proven that the employer has violated the law at all, let alone in the egregious manner proscribed by the SVEP.”

What does OSHA say?

In its own review of the program, OSHA said that making enforcement consequences public through news releases and other means has resulted in greater awareness by employers.

In a white paper published in January 2013, OSHA states that the SVEP is working as designed. According to OSHA, the SVEP has led to a significant increase in follow-up inspections and has succeeded in directing enforcement resources where they’re needed most: to high-hazard environments and businesses where employers show a disregard for worker safety.

Although it is true that 50% of all SVEP cases target companies with between 1 and 25 employees, these cases are disproportionately in the construction industry, where 70% of SVEP cases involved companies with between 1 and 25 employees. For general industry, employers with 250 or more make up the largest percentage of SVEP cases, at 41%. And the emphasis on small construction companies may not be unjustified: A recent study by McGraw-Hill Construction found that while 92% of construction employers with over 500 employees reported having comprehensive safety programs, just 48% of smaller firms said the same.

Despite the generally positive assessment, OSHA’s evaluation of the program points out challenges to its effectiveness. For example, it can be difficult to conduct follow-up inspections of many small construction companies due to their transitory nature.

Regardless of whose assessment of the SVEP is closer to the truth, the program is likely not going away any time soon, so it’s important to make sure you’re in compliance with all applicable regulations.

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