Tuesday, September 25, 2012

More signs of ramped-up OSHA enforcement and penalties

It seems that some of these efforts have drawn some controversy, most notably the agency's Severe Violator Enforcement Program (SVEP), which kicked off two years ago, replacing the agency's Enhanced Enforcement Program with the aim of focusing enforcement efforts upon:

(H)igh-emphasis hazards, which are defined as high gravity serious violations of specific fall standards -- 23 such standards are listed in general industry, construction, shipyards, marine terminal, and longshoring -- or standards covered in National Emphasis Programs focused on amputations, combustible dusts, crystalline silica, lead, excavation/trenching, shipbreaking, and process safety management.

To be declared a severe violator, an employer must have experienced a fatality or an accident that hospitalized at least three workers or must have been cited for significant violations of OSHA standards, especially if the violations were found as part of a national emphasis program.  
Once an establishment is designated a severe violator, OSHA may inspect other worksites of the employer. Also, the employer is expected to establish a safety program that could involve outside consultants and frequent follow-up visits by OSHA inspectors.

Nearly half the firms on the last added to the program were added over the last year (182) only 59 companies were removed from the list. Of the companies listed as being subject to the program. construction firms making up the largest group on the program's list and manufacturers coming in second.

Only three years after the final disposition of the citation which led to a company being placed in the program could an employer request to be removed and only upon the approval of an OSHA regional administrator.

It's this standard that has some questioning the program including Eric Conn, a Washington, D.C. attorney who specializes in labor issues. He points out that many of the placements upon the list are made under contest:

More than two-thirds of SVEP cases are contested by the cited employer, and of the 200+ contested SVEP cases, nearly half of those contests remain open today. As a result, some employers have been on the list for more than two years despite OSHA not proving that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP.

Conn warns that firms placed in the program may face a difficult time getting out of it, noting that between 2006 and 2010, "the types of violations that will keep you in the SVEP (i.e., Serious or greater) are up more than 247%, and the types of violations that can allow for removal (i.e., Other-than-Serious violations) are down more than 10%."

As this standard seems to apply to companies regardless of the size of their workforce, types of hazards encountered and total number of hours worked by its workforce. Large organizations with generally decent records, such as Verizon, are already on the SVEP list and without any criteria which weights risks, laws of probability suggest that many larger companies will eventually end up under the SVEP program regardless of the quality of their overall safety programs, increasing the agency's reach into the private workplace while potentially reducing the ability of the agency to keep on top of hazards elsewhere.


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