By Eric J. Conn, Head of EBG’s national OSHA Practice Group
We have written extensively about problems with OSHA’s controversial Severe Violator Enforcement Program (SVEP) here on the OSHA Law Update blog. If the leadership team in the national office of OSHA invited us to sit down with them to ask questions on behalf of Industry about some of these problems with the SVEP, here is what we would ask them:
- As one would expect for a program designed for recidivists, the punitive elements of the SVEP are significant, including: (a) inflammatory public press releases branding the employer as a severe violator; (b) adding the employer’s name to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) conducting numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) demanding enhanced terms in settlements (such as corporate-wide abatement, requiring the employer to hire third party auditors to report findings to OSHA, etc.). However, with the consequences of “qualifying” into SVEP being so, well, severe, how does OSHA justify the fact that the Agency qualifies employers into SVEP before final disposition of the underlying citations? In other words, how is it lawful, Constitutional, or just plain fair that employers should face these harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP? For more details about this concern, check out our article regarding the legal and constitutional implications of this premature qualification into SVEP.
- For more than two years after OSHA launched the SVEP, the Directive for the Program did not include any explanation for how employers could get out once they officially qualified. When OSHA’s leadership team was asked about this at conferences and meetings, they similarly could not or would not offer any guidance. The SVEP was quite literally a roach motel; you could check in, but you could never leave. After much clamoring from industry representatives, earlier this year, OSHA finally publicized a set of so-called SVEP exit criteria. In short, SVEP employers may get out of the Program if they: (a) pay all the final civil penalties; (b) address all of the abatement required by the citations or settlement; (c) address any other terms of the settlement; (d) make it three full calendar years after final disposition of the citations without receiving any related Serious violations; and (e) even if all of the above is accomplished, the employer may be released from SVEP by the undefined discretion of the OSHA Regional Administrator in the employer’s area. Check out our earlier post on the OSHA Law Update blog about the SVEP exit criteria. As relieved as Industry was to see OSHA announce some exit criteria for getting out of SVEP, the specific exit criteria identified by OSHA raise many questions about fairness and reasonableness. For example, the clock for the three-year “probation/exit period” does not start until “final disposition” of the underlying citations, as opposed to when OSHA qualifies employers into the Program (i.e., immediately upon issuance of the citations). My questions for OSHA about the SVEP exit criteria would be, how does OSHA reconcile the timing for exit against the timing for qualification? Why does the start of the exit clock wait for final disposition, but OSHA does not wait for final disposition to dump employers into the Program to begin with? Also, what criteria or factors will the Regional Administrators consider when exercising their undefined discretion in deciding whether to let employers out of SVEP?
- Also relevant to OSHA’s SVEP exit criteria, if an employer has a good faith disagreement with OSHA about the basis for the qualifying citation(s), and decides to contest the citations through the formal process provided by the OSH Act, that process can take several years. Therefore, if the employer contests the citations, and that contest takes two years, and at the end of that two year contest process, the citation package is cut dramatically by an ALJ, but there still remains one SVEP-qualifying citation on the books, that employer’s exit/probation period will be at least 5 years instead of 3. Hasn’t the employer been punished for exercising his right to contest citations? Put another way, doesn’t three-years from final disposition exit criteria discourage employers from exercising their right to challenge OSHA’s citations?
- Another exit criterion OSHA selected is that employers may not have any related Serious violations during the three-year probation period; i.e., any Serious violation will re-start a new three-year probation clock. First, does the clock restart just based on an “alleged” Serious violation by OSHA, or does that require final disposition confirming the Serious violation (by settlement or order of an ALJ)? Also, why is it that it takes higher caliber Willful and Repeat violations to qualify employers into the SVEP, but the somewhat ubiquitous Serious violation keeps them in? Considering the facts that: (a) being in SVEP can lead to 11 follow-up inspections (i.e., a follow-up inspection at the cited facility, and inspections at as many as 10 related facilities); (b) OSHA issues at least one citation item in approx. 80% of all inspections; (c) the vast vast majority of those citation items are characterized as at least Serious; is it realistic to believe that any employer will ever be able to go 3 years without at least one Serious violation to get out of SVEP? Wouldn’t a more appropriate exit criterion be that another, confirmed Willful or Repeat violation restarts the exit clock?
- In reviewing the data included in OSHA’s White Paper about the SVEP (check out our article about OSHA’s SVEP White Paper), it appears that practically none of the SVEP follow-up inspections or related facility inspections that OSHA has conducted has resulted in new SVEP-qualifying citations. Moreover, nearly 50% of the follow-up inspections have been “in compliance” inspections (i.e., no violations have been found at all), which is 30% higher than the national average. In other words, it seems clear that OSHA is not finding systemic safety issues through the SVEP, and the current batch of Severe Violators are not proving to be the “recalcitrant” employers that OSHA is purportedly targeting with the SVEP. By that same token, it appears from a review of the data that the majority of employers who are qualifying for SVEP are getting in not because of Repeat violations, but because of one-time alleged Willful violations. If the purpose of the SVEP is to identify recidivists, shouldn’t the data reflect more repeat offenders than it has? In other words, is OSHA concerned that its qualifying criteria are flawed, and that the Agency is not sweeping in the right employers?