OSHA’s Severe Violators Grow by 23 Percent from 2013: Construction companies make up about 60 percent of the severe violators list

A total of 423 employers—an increase of 23 percent from a year ago—make up the Occupational Safety and Health Administration’s (OSHA) really bad actors list, according to recently updated data.

Eighty workplaces have been added to OSHA’s Severe Violator Enforcement Program (SVEP) log since July 1, 2013. Five companies successfully contested violations and were removed from the program in that time.

The SVEP is intended to focus enforcement efforts on significant hazards and violations by concentrating inspection resources on employers who have demonstrated recalcitrance or indifference to their Occupational Safety and Health Act obligations, according to OSHA.

The program subjects employers to more-significant enforcement measures and penalties for willful, repeat and failure-to-abate violations. To be declared a severe violator, an employer must have been cited by OSHA as having committed willful, repeat or failure-to-abate violations in any of the following circumstances:

• A fatality or catastrophe situation.
• In industry operations or processes that expose employees to the most severe occupational hazards and those identified as High-Emphasis Hazards, such as falls, amputations, combustible dust, crystalline silica, excavation/trenching, lead and shipbreaking.
• Exposing employees to the potential release of a highly hazardous chemical.
• Any egregious enforcement actions.

Once an establishment is designated a severe violator, OSHA may inspect the employer’s other worksites. The employer can also expect frequent follow-up visits by OSHA inspectors.

Construction companies make up about 60 percent of the severe violators list, with manufacturers representing another 28 percent. About 55 percent of violators are small employers, with less than 10 employees. Only 14 percent are employers with more than 100 workers. Nearly half of the employers on the list are contesting their citations through the Occupational Safety and Health Review Commission.

Removal from SVEP

An employer may be considered for removal from the program after:

• Three years have passed from the final disposition of the citation that produced the SVEP designation. Final disposition includes a final order from the Occupational Safety and Health Review Commission, a court of appeals decision, a settlement agreement with OSHA or a decision not to contest the citation.
• The employer has abated all affirmed violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

If the employer fails to adhere to these terms during the three-year probationary period, it will remain in the program for an additional three years and will then be re-evaluated.

Thirty-nine companies on the current list have completed the probationary period and have undergone their initial follow-up inspections. None of them have been scheduled for removal.

Eric Conn, head of the OSHA Practice Group at Epstein Becker Green, is one of the foremost critics of the program. Among the various issues Conn has brought up since the program’s inception in 2010, he says the most fundamental flaw of the SVEP is branding employers as severe violators before proving the employers broke the law.

“In a society that values due process, OSHA should be required to first prove the underlying violations that serve as the basis for qualifying an employer into the SVEP, before broadcasting to the world that the employer belongs in a special category of bad actors,” he said.

Although it takes willful or repeat violations to get into the SVEP, one serious violation can have lasting repercussions. Conn said few companies will ever make it off the list after enduring three years of follow-up visits, given the fact that OSHA inspections turn up at least one serious violation about 75 percent of the time.

You can view this webinar presented by Conn to learn more about how and when employers are entered into the SVEP, the consequences involved, and tips to help employers.

Source: SHRM.org