Harmon & Davies, P.C.

The Severe Violator Enforcement Program that OSHA started nearly two years ago continues to grow as the number of severe violators nearly doubled since last year.  According to OSHA data, as of June 30, 2011, 330 establishments are designated as “severe violators” and as of July 2011, 182 employers have been sited under the enforcement program. To be declared a severe violator, a company must have experienced a fatality or an accident that hospitalized at least three workers or have been cited for significant violations of OSHA standards.

A majority of the establishments on the list were placed there as a result of inspections producing two or more willful, repeat, or failure-to-abate citations for “high-gravity” violations related to hazards classified as “high emphasis” by OSHA.  High-emphasis hazards include falls, amputations, entrapment in excavations, combustible dust, shipbreaking, grain handling, and overexposure to lead or silica.

Construction Companies Make Up Majority of the List.  Sadly, construction companies account for 52 percent of the businesses on the severe violators list (down from 61% last year).   Manufacturing makes up the next largest chunk of severe violators with 3 percent.  One possible reason why construction companies account for over half of the businesses on the severe violators list is because the construction industry involves high emphasis hazards.  For example, citations for hazards such as lockout/tagout or crowded exits do not trigger Severe Violator Enforcement Program designation.  Thus, a small roofing company cited for repeat fall prevention violations might be on the list while a retain chain store cited for repeat violations of improperly stacked boxes won’t be.

How to Handle Being Placed On the Severe Violators List.  If your company is placed on the severe violators list it has four options:  (1) contest the citation; (2) enter into an informal settlement with OSHA; (3) enter into an enhanced settlement agreement with OSHA; and (4) choose not to challenge the citation.  Since June 2010, 59 companies have been removed from the list after successfully appealing the citations that landed them on the list.  Currently, 34 percent of the companies on the list are contesting the OSHA allegations.  A quarter of the sited businesses have settled with OSHA with 22 signing an “enhanced settlement agreement” and 3 percent agreeing to informal settlements.  An enhanced settlement could involve any of several options such as: hiring safety and health consultants, making the settlement apply to all the company’s sites, and submitting quarterly injury and illness reports to OSHA.  Finally another forty-four percent of the companies on the list are not challenging their citations.

If you need assistance with contesting an OSHA citation, the attorneys at Harmon & Davies, P.C. can assist you.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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