Special Emphasis Program

Last week, Washington Legal Foundation published a Legal Backgrounder regarding OSHA’s Severe Violator Enforcement Program (“SVEP”) authored by Eric J. Conn, Head of Epstein Becker & Green’s national OSHA Practice Group.  The Legal Backgrounder expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program.

The article focuses on a White Paper issued by OSHA this Spring, in which OSHA analyzes the first 18 months of its new, controversial enforcement program.  The White Paper concludes that the SVEP is “off to a strong start” and is “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.”

Despite OSHA’s claims, 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)

Check out the full Legal Backgrounder regarding OSHA’s SVEP here.

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.

Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E – Means of Egress (specifically, the various requirements of 1910.36).  The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.

In the enforcement memorandum, OSHA announced that:

“During inspections of all workplaces [Compliance Safety & Health Officers] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.”

This list of items for review is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet.  Here are the basic requirements for complying with 1910.36 set forth in OSHA’s regulations and the Fact Sheet:

  1. Employers must determine how many exits routes are required in its building.  As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace.  One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
  2. Exit routes must be maintained unobstructed, and the exit doors must remain unlocked from the inside.  Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings.  Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside.
  3. Exit routes and doors must be properly labeled and maintained.  Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting.  Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).

Although the Enforcement Memorandum features the tragic anecdote about the Chinese poultry plant, OSHA’s Director of the Directorate of Enforcement specifically instructs his enforcement team to look out for egress issues in inspections at “all workplaces.”  Continue Reading OSHA To Target Exits and Exit Routes

The January/February 2013 issue of Feed & Grain Magazine featured an article entitled “Severe Violator Enforcement Program Defies Constitution” authored by Eric J. Conn, the Head of EBG’s national OSHA Practice Group.  The article expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program (“SVEP”).

The article provides a detailed explanation about the SVEP, including:

  1. The origin and intent of OSHA’s Severe Violator Enforcement Program;
  2. the consequences to employers who “qualify” for the SVEP;
  3. How and what types of employers have been qualifying for the Program;
  4. The questionable legality of the way OSHA implements the Program; and
  5. The unfair “exit criteria” from the SVEP.

Here is an excerpt from the article:

“Despite the SVEP’s substantial punitive elements, OSHA deposits employers into the program before the underlying allegations become a Final Order; i.e., before the employers have had an opportunity to prove wrong the qualifying allegations to the OSH Review Commission. Before the employer has a chance to do that, OSHA can, under the SVEP Directive, begin follow-up inspections and inspections at related facilities, add the employer to a public and embarrassing list of severe violators, and condemn the employer in the public arena through harsh enforcement news releases at the time of the issuance of the citations. ‘Guilty before proven innocent’ at its core.

This article explores the Constitutional Due Process implications raised by OSHA’s implementation of the SVEP, and especially the enforcement news releases that accompany employers’ placement into the Program. It will also explain the ways that OSHA’s execution of the SVEP violates the Administrative Procedure Act (APA), which governs agencies’ rulemaking authority. Finally, it discusses the other elements of the SVEP that strike at fundamental fairness and sound policy, such as the nearly impossible ‘exit ramp’ OSHA created for employers to get out of the Program.”

Here is a link to the full article in a standard web version, and a link to the Digital Edition of the January/February 2013 issue of Feed & Grain Magazine, so you can view the article as it appeared in the hard copy magazine.

By Amanda R. Strainis-Walker and Eric J. Conn

The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn.  After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice outright.  Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSH Review Commission in January, and that settlement renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work.

Sweep Augers

A sweep auger is a mechanism that attaches to a pivot point in the center of a flat-bottom grain bin, and then travels at very slow speeds in a circle around the bin, pulling grain from the perimeter of the bin towards a floor sump in the center of the bin by a helical screw blade called a flighting, where the grain exits to another conveying system.  Generally, one or more workers will be positioned inside the bin behind the sweep auger to make regular adjustments to the auger to keep it advancing on track, and also to manually sweep grain not captured by the auger.

By design, a sweep auger is typically guarded from accidental contact on the top and backside, but it cannot be guarded on the front, or the flighting of the auger would not be able to contact the grain, and therefore, would not convey grain towards the center sump.  In other words, the basic functionality of a sweep auger would be nullified if it were guarded on all sides.

The Grain Standard

The legal landscape about the use of sweep augers with employees inside grain bins has had many throughout the Ag Industry confused for years.  Part of the confusion dates back to the original implementation of the Grain Handling Standard (29 C.F.R. § 1910.272).   The final Grain Standard, which was published in 1987, did not include any provision to address the use of sweep augers or the conditions in which an employee may work inside a grain bin with an energized sweep auger.  The final rule did, however, include a general requirement about equipment inside grain bins at 1910.272(g)(1)(ii):

“All mechanical, electrical, hydraulic, and pneumatic equipment which presents a danger to employees inside grain storage structures shall be deenergized and shall be disconnected, locked-out and tagged, blocked-off, or otherwise prevented from operating by other equally effective means or methods.”

Varying informal interpretations by OSHA about the language in the Standard: “which presents a danger” and “other equally effective means or methods,” resulted in inconsistent enforcement by OSHA in connection with sweep augers over the years.  A series of formal OSHA Interpretation Letters beginning in 2008, however, changed that landscape.

OSHA’s Sweep Auger Interpretation Letters

Around the same time that OSHA began to scrutinize the grain industry following a rash of engulfment incidents inside grain bins, OSHA also began to focus more attention on the issue of potential employee entanglement in the moving parts of sweep augers.  That attention was spurred in part by a letter to OSHA from an insurance agent seeking a formal interpretation of requirements related to grating/guarding on sumps inside grain bins with sweep augers.

The insurance agent’s letter described a scenario in which an employer required employees to maintain a distance of at least six feet behind a partially-guarded or unguarded sweep auger.  In a September 29, 2008 Interpretation Letter from OSHA responding to the insurance agent’s request, OSHA linked 1910.272(g)(1)(ii) to the use of sweep augers, and expressed the position that employees were prohibited from being inside grain bins with energized sweep augers unless the employer could demonstrate that appropriate protections were provided to prevent employees from exposure to the hazards of the moving machinery.  OSHA further stated that completely guarding the machine and a rope positioning system to prevent employee contact with the energized equipment (i.e., a leash for employees), would be effective methods to protect employees.  Finally, the letter opined that an administrative policy requiring employees to maintain a safe distance of six feet from partially-guarded and unguarded sweep augers was not an “otherwise equally effective means or method” that satisfies 1910.272(g)(1)(ii).

Shortly after OSHA issued the September 29, 2008 Interpretation Letter, the same insurance agent sent a second request to OSHA for further clarification, explaining that a sweep auger could not, by design, be completely guarded, and that the rope positioning system that OSHA suggested would be “extremely dangerous.”  This second letter specifically asked for OSHA’s interpretation as to whether an employee could be inside a grain bin with an energized sweep auger.  OSHA responded to this second request with another formal Interpretation Letter on Christmas Eve of 2009, with a direct “no.”  OSHA reasoned in the December 24, 2009 Interpretation Letter that if the methods proposed earlier by OSHA (i.e. guarding the operating side of the auger or putting a leash on employees) were ineffective, then the Agency was “not aware of any effective means or method that would protect a worker from the danger presented by an unguarded sweep auger operating inside a grain storage structure.” Continue Reading Breaking News: Sweeping Changes to OSHA’s Sweep Auger Enforcement

Happy Holidays and Happy New Year to all of you, and Happy 1st Anniversary to the OSHA Law Update blog.  On December 20th, we celebrated our first full year of updates and articles (56 of them) about important OSHA Law topics here on the OSHA Law Update blog.  We would hardly have the energy or enthusiasm to keep the OSHA Law Update current if it were not for all of the incredibly positive feedback, comments, and questions that we have received over the year from all of you.  Thank you for that.

Just as we did last year, as the clock was winding down on a remarkable year of OSHA enforcement and other activity, it is time to take a look ahead to the new year, and offer our thoughts about what we can all expect from OSHA in 2013.  Here is a link to our post from December 2011 in which forecasted 5 important OSHA developments for 2012 (a pretty accurate forecast in retrospect), and here are three developments we expect from OSHA in 2013:

1.  Heavy-handed enforcement will continue to trend up:

During President Obama’s first term in office, OSHA consistently increased enforcement in every measureable way, year over year, and there is every reason to believe that trend will continue.  OSHA’s budget increased early in President Obama’s first team, and that allowed OSHA to hire more than 100 new compliance officers.  The agency also redirected most of the resources and personnel who had formerly been involved in compliance assistance and cooperative programs into enforcement.  As a result of this big increase in enforcement personnel, we saw the number of inspections increase from averages in the mid-30,000’s during the Bush Administration to the mid-40,000’s through President Obama’s first term.  Barring a prolonged trip over the Fiscal Cliff and actual implementation of sequestration, the trend of increasing enforcement personnel and increasing inspections will continue.

In addition to more frequent visits from OSHA, the OSHA leadership team also modified its Field Operations Manual for the purpose of driving up average and total penalties per inspection (i.e., by raising minimum penalties, average penalties, and eliminating penalty reductions available for size and safe history).  As a result, the average per Serious violation penalty doubled from the Bush Administration (approx. $1,000 per violation) to the end of Obama’s first term (approx. $2,000 per violation).  OSHA’s leadership team has expressed a goal of continuing to grow that average to approx. $3,000 per Serious violation.  We also watched the frequency of enhanced citations (i.e., Willful and Repeat violations that carry 10x higher penalties) increase at a rate of more than 200%.  Those changes, and other aggressive enforcement strategies by OSHA, have resulted in the Agency doubling the total number of “Significant” enforcement actions (cases involving penalties of $100,000 or more), and tripling the number of cases involving total penalties over $1M.  That trend is also expected to continue.

The Democratic Party unveiled its Party Platform during President Obama’s Nominating Convention, and offered a glimpse into what we can expect from OSHA in 2013 and beyond.

The platform called for a focus on “continu[ing] to adopt and enforce comprehensive safety standards.”  Many dubbed the 2012 a “status quo election,” which is probably right, and because the status quo at OSHA over the past four years has been a trend of increasing enforcement and focused rulemaking, that is precisely what we should expect from OSHA over the next four years.

Specifically, OSHA will continue to aggressively enforce its existing standards (i.e., increasing numbers of inspections, increasing penalties, and increasing publicity related to enforcement actions).  We anticipate a doubling down on programs and strategies like:

By Paul H. Burmeister

The Site-Specific Targeting Program (SST) is OSHA’s primary “programmed” inspection plan for non-construction workplaces.  The SST Program is geared to address OSHA’s goal of reducing the number of injuries and illnesses that occur at individual workplaces, by directing enforcement resources to those workplaces where the highest rate of injuries and illness have occurred.

The SST is driven by data received from the prior year’s OSHA Data Initiative Survey.  Using the data from this annual survey, and criteria that change every year, such as different industries, fluctuating thresholds of injury data (mostly average DART rates by industry), and different sized employers (this past year, lowering the threshold to workplaces with 20 or more employees from historically larger employers), OSHA puts together lists of tens of thousands of workplaces that could be subject to a programmed inspection.

The Department of Labor’s Office of the Inspector General (“OIG”) recently released a report critiquing and recommending some major changes to OSHA’s SST Program.  The principle criticism was that the current SST leaves out more than a quarter of all worksites that reported high rates of injury and illness.  The OIG report also observed that 84% of workplaces on the annual SST list were not inspected, due to OSHA’s limited resources and other enforcement priorities.

Based upon its review of OSHA’s SST program, the OIG made three recommendations:

  1. Include the highest-risk worksites in the Data Initiative Survey and the SST Program Targeting Lists, including workplaces with fewer than 20 employees;
  2. Prioritize and complete inspections of the highest-risk worksites to ensure effective and efficient use of OSHA resources; and
  3. Complete the evaluation of the SST program and implement a monitoring system to evaluate efficiency and effectiveness on an ongoing basis.

OSHA partially agreed with OIG’s findings and rebutted others.  For example, OSHA stated that that it would revise its list of industries included in the Data Initiative Survey based on current Bureau of Labor Statistics injury and illness data.  OSHA also agreed to push the OSHA-approved State Plans to adopt SST targeting.

Of all the report’s findings, however, it is most disappointing that OIG would recommend, and that OSHA would entertain, the targeting of even smaller employers.  OSHA’s most recent SST Program (2011) already focused on smaller employers than OSHA had targeted historically (down to 20-employee establishments), but the OIG report recommends inspections at establishment half that size.  With the current economic environment, it is disheartening to see a deliberate plan to put even more pressure on small employers.  Should the OIG recommendations be taken up by OSHA, small employers, already feeling increased scrutiny and facing higher penalties from today’s OSHA, would be under even more pressure from OSHA in terms of inspections and data collection.

By Eric J. Conn, Head of the OSHA Practice Group

Back in September, we posted an article critiquing OSHA’s Severe Violator Enforcement Program (“SVEP”) in general, and the newly announced “exit criteria” in particular.  Since that time, in the beginning of October, OSHA updated its embarrassing SVEP Log that it maintains for public consumption on the OSHA website.  With the new data included on the SVEP Log, we thought this would be a good time to provide an update about the SVEP, including:

  • The types of employers and industries that OSHA is most frequently qualifying for the program;
  • The OSHA Regions that are most active in the SVEP;
  • The pace at which new employers are added to the program; and
  • Other useful information.

As a reminder, on June 18, 2010 OSHA implemented the SVEP to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized by OSHA as “Egregious”;
  • 1+ Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • 2+ Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, such as falls, amputations, grain handling, etc.); or
  • 3+ Willful, Repeat or Failure-to-Abate violations related to OSHA’s Process Safety Management Standard.

Also as a reminder, OSHA qualifies employers for the SVEP not upon a Final Order of the OSH Review Commission confirming that the employer actually violated the law as alleged by OSHA, but instead, employers find themselves on the public Severe Violator list just upon OSHA’s initial, unproven allegations.

Below are some interesting bits of data about the SVEP in general, and the types of employers that are landing on the SVEP List, how frequently, and in what parts of the country:

Please join us for OSHA-related briefings in Columbus, OH (November 14, 2012) and Cincinnati, OH (November 15, 2012).  The events cover half a day, with breakfast and lunch included.  A copy of the detailed invitation is below.  Clink on the links above or contact us to RSVP for the upcoming briefings.

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question.  Click on the image of the slide below to watch and listen to the first webinar response.

In this post we address a common question regarding the triggering events for an OSHA inspection.  Specifically, our reader asked:

QUESTION: “My company recently had an OSHA inspection without any serious findings.  What would put my company at risk for another inspection here, or at one of our facilities?”

Click here to view a video response (WMV video format).

The minute the file is closed on one OSHA inspection, there are several circumstances that can trigger a “programmed” or “unprogrammed” visit from an OSHA compliance officer at either the same facility or a related facility within the same company.

OSHA’s Field Operations Manual (at p. 9-3) lists ten criteria that will trigger a “unprogrammed” OSHA inspection.  These criteria include:

  • A valid formal employee complaint;
  • A signed, written complaint of an employee alleging a serious safety violation;
  • Information that a permanently disabling injury or illness has occurred and the hazard relating to that incident still exists;
  • Information alleging an imminent danger;
  • Information relating to an alleged hazard covered by a local, regional or national emphasis program;
  • An employer inquiry is not adequately addressed;
  • The employer has a history of violations or is part of the Enhanced Enforcement Program;
  • A whistleblower has alleged discrimination for complaining about workplace safety issues;
  • A minor issue is raised when an inspection has already been scheduled or begun for another reason; and
  • Information gives reasonable grounds to believe a minor (under 18) is exposed to hazardous workplace conditions.

In addition to these unprogrammed inspections, there are several avenues through which a “programmed” inspection can begin.  Programmed inspections are those inspections that are part of a “neutral inspection program” in which employers in certain industries are randomly targeted for inspections.  If OSHA has targeted an industry for additional oversight, then an individual employer in that industry is more likely to be selected any given year unless they have been removed from the selection list.  Under certain circumstances, employers may temporarily or permanently removed from the list for a programmed inspection if they meet the following criteria (set forth in OSHA Directive CPL 02-00-025 – Scheduling System for Programmed Inspections):

  • “Safety inspection–Any comprehensive programmed or focused safety inspection or a substantially complete unprogrammed safety inspection conducted within the current or previous five (5) fiscal years.”
  • “Health inspection–A substantially complete or focused health inspection was conducted within the current or previous five (5) fiscal years with no serious violations cited; or, where serious violations were cited, an acceptable abatement letter or a follow-up inspection has documented ‘good faith’ efforts to abate all serious hazards.”

Additionally, Section 3-14 of the Field Operations Manual states that “employers who participate in selected voluntary compliance programs may be exempted from programmed inspections.”  These compliance programs include OSHA On-Site Consultation Visits, the Safety and Health Achievement Recognition Program, and the Voluntary Protection Program.

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Here is a link to our responses to other OSHA FAQ posts.  Also, check out our OSHA Inspection Checklist for more helpful tips and advice about preparing for and managing an OSHA Inspection.

By Eric J. Conn, Head of the OSHA Practice Group

On June 18, 2010 OSHA replaced its much-maligned Enhanced Enforcement Program (EEP) with a new and equally problematic initiative called the Severe Violator Enforcement Program (SVEP).  The SVEP is intended to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized as “Egregious”;
  • One or more Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, including falls, amputations, grain handling, etc.); or
  • Three or more Willful, Repeat or Failure-to-Abate violations related to Process Safety Management (prevention of the release of a highly hazardous chemicals).

According to an attorney with OSHA’s Solicitor’s office, employers are not added to the SVEP immediately upon receipt of citations meeting these criteria, but rather, are deposited in the Program within fifteen working days of receipt of the citations upon either a settlement at an Informal Settlement Conference, or the filing by the employer of a notice of contest challenging the validity of the citations.  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.  The constitutional due process implications of the SVEP are glaring.

Once an employer is added to the SVEP (again just based on unproven allegations), the company is immediately subject to the punitive elements of the Program, including mandatory follow-up inspections at the facility where the SVEP-qualifying citations were issued, as well as at sister facilities throughout the enterprise.  The issuance of SVEP-qualifying citations also comes with a heavy dose of public shaming by the Department of Labor.  Specifically, with every SVEP citation comes a public press release issued by OSHA, which now includes an inflammatory quote from a high-ranking OSHA or Department of Labor representative about the employer.  The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.”  The SVEP press releases and an embarrassing public log of all employers in the SVEP are available on OSHA’s website.

The final problematic element of the SVEP has always been the manner in which employers can (or cannot) be removed from the Program once they get in.  For more than two years, OSHA operated the SVEP without providing employers any way out of the Program, other than by eliminating the underlying SVEP-qualifying citation through the multi-year contest process or persuading OSHA to withdraw the qualifying citations in a settlement.  After much clamoring from industry, OSHA finally released a press release summarizing a memorandum from the Director of Enforcement Programs to the Regional Administrators on August 16, 2012, which set forth a series of removal criteria.

The memo provided a framework for getting out of SVEP, but the extremely harsh removal criteria provide little relief to employers.  The memo explains that:

“[A]n employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.”  Of course, it is not as easy as just waiting those 1095 days from a Final Order.  Employers must have also “abated all SVEP–related hazards affirmed as 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 employers fall short of any of these requirements, they will have to wait an additional three years to be considered for removal.  Even if the employer does meet all the criteria, removal from SVEP is not guaranteed.  In all cases with the exception for those involving corporate-wide settlements, the Regional Administrator has the final say as to whether an employer is removed from the program.  That discretionary decision is based on vague, undefined factors related to follow-up inspections and enforcement data.  Employers who agreed to corporate-wide settlements are reviewed for removal by the Director of Enforcement Programs (“DEP”) in OSHA’s National Office. Continue Reading OSHA Reveals Unfair Exit Criteria from Its Unconstitutional Severe Violator Enforcement Program