Is OSHA's Severe Violator Enforcement Program Broken?

OSHA issued a White Paper on February 26, 2013, analyzing the first 18 months of its new, controversial enforcement initiative known as the “Severe Violator Enforcement Program” (“SVEP”). The White Paper concludes that the SVEP is “off to a strong start” and “already meeting certain key goals,” including:

1. Identifying recalcitrant employers whose violations of the OSH Act “demonstrate indifference to the health and safety of their employees.”
2. Effectively guiding OSHA’s enforcement resources toward those employers by “targeting high-emphasis hazards, facilitating inspections across multiple worksites . . . and by providing Regional and State Plan offices with a nationwide referral procedure.”
3. Demonstrating its effectiveness by creating a “significant increase in follow-up inspections and enhanced settlements.”

However, Eric J. Conn, the head of Epstein Becker & Green''s OSHA Group and the author of the OSHA Law Update, suggests in a newly published article titled " 'Off To A Strong Start'?: OSHA’s Dubious Assessment Of Severe Violator Enforcement Program", that OSHA overstates its case and ignores the negative impacts its policies have had on regulated entities.

According to Conn, careful scrutiny of the data available regarding the SVEP casts doubt on the program’s effectiveness and reveals several glaring problems with how the SVEP is being administered. Most notably, the Severe Violator Enforcement Program:

1. Disproportionately targets small employers with enforcement rather than compliance assistance;
2. Provokes more than four times as many legal challenges to the underlying citations as compared to the average OSHA enforcement action;
3. Encounters significant obstacles in the execution of follow-up inspections of SVEP-qualified employers; and
4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted (i.e., the Program is not capturing recalcitrant employers).

Conn concludes that SVEP is, at its core, a program based on admirable principles and agrees that OSHA should focus its enforcement resources on bad actors. However, as it is being implemented, according to Conn, the Program prematurely punishes employers, and in many instances, punishes the wrong employers altogether. In order for SVEP to avoid failing like its predecessor, EEP, OSHA needs to make significant changes to the selection process, the timing for implementing the Program, and the manner in which implements the Program.

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