OSHA’s New Directive: An Incentive or a Drawback?

Abhilasha Desai
Associate Editor
Loyola University Chicago School of Law, JD 2024

In September 2022, the Occupational Safety and Health Administration (OSHA) issued a new instruction which broadens the scope of the agency’s inspection program, the Severe Violator Enforcement Program (SVEP). The previous directive, which went into effect in 2010, allowed OSHA to place employers in the program if its employees committed certain serious violations, especially if they had already been cited for the violation once or received a failure-to-abate notice. The new instruction allows OSHA to place employers in the program that probably would not have met the criteria in the previous directive.

Differences between OSHA’s old directive and new directive

Previously, OSHA could place an employer under the program if its employee met criteria, including but not limited to, violations resulting in death or hospitalizations of other employees. Under OSHA’s prior directive, violations related to high-emphasis hazards such as falls, combustible dust, highly hazardous chemicals, or other flagrant violations were also criteria for SVEP placement. The restrictive criteria of the original directive and its effects are alarming. In 2021, an employee at a Texas company received second degree burns when oxygen leaked from the equipment he was using and caused a fire flash. Then in 2022, an employee in the same company suffered an amputation due to dangerous machinery and yet another employee was exposed to dangerous working conditions due to the lack of safety rails. Unfortunately, it took five years and several other incidents for OSHA to place the employer under the SVEP. Due to the restrictive nature of the original criteria, it took years before the company could be placed under the SVEP. With the new instructions in place, this will not be an issue. Unlike the previous directive, this new instruction simply requires OSHA to find at the minimum, two willful or repeated violations of “high-gravity” situations or the failure to abate them. “High-gravity” means a violation that is a high severity hazard and has a greater probability of happening. Ultimately, it is within OSHA’s discretion to determine what is considered a high-gravity violation. In making this determination, the agency will review the severity of the problem resulting from the violation and the likelihood of an injury.

Requirements under the new directive  

Not only does this new directive increase an employer’s chances of being placed in the program, but it increases the amount of time that the employer must remain in the program. Previously, employers could be removed from the list after the final order was issued. Now, employers can only be removed from the program three years after it has been verified that the employer abated all the hazardous violations they were cited for under the SVEP. If employers do not want to be in the program for such an extended period of time, they have the option to agree to an enhanced settlement agreement. The agreement requires the implementation of a management system with certain health and safety standards, but it reduces the required time in the program to just two years. This provides an incentive for employers to abate the hazardous violations swiftly. Apart from this, employers must also undergo inspections after the final order. The inspections must happen within two years after the employer has received the final order. If the employer has multiple workplace locations and OSHA finds compliance issues at those other locations, those sites will undergo inspections as well.

Consequences of meeting the criteria for SVEP

Besides the forementioned requirements, being placed on the SVEP list comes with other pernicious consequences. If an employer meets the SVEP criteria, they are placed on the list without a hearing, which raises due process concerns, says Steve Simko, an attorney with employment law firm Constangy, Brooks, Smith and Prophete. Matthew Deffebach, an attorney with corporate law firm Haynes and Boone, says that OSHA has faced criticism for this but broadening the program’s scope under this new directive creates the impression that the agency plans to stand its ground.

Further, the agency reserves the right to publicly release the identity and SVEP status of an employer, which would be highly detrimental to the company’s reputation. Simko also explains that despite the reduction in time, the enhanced settlement agreement is not as conducive as it seems. Simko explains that entering such an agreement would benefit the government more than the employers and the decision to enter it should be done on a case-by-case basis instead. Additionally, attorney John Ho of Cozen O’Connor, explains that as COVID-19 concerns diminish over time, OSHA’s focus will shift back to the types of violations that meet criteria under SVEP. This means that even if an employer abates the violations, there will be greater follow-up and companies will have to ensure that their safety and health standards are not lacking.

While the consequences of being placed on the SVEP list can be devastating, the new directive gives employers an incentive to ensure that health and safety standards are being met. To avoid the chances of being placed on the list, employers should take proactive measures instead of letting an incident happen and then looking for remedies.