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Regulatory Update: A More Aggressive OSHA May Make Case Settlement Harder

Jan. 5, 2024
Attorney warns employers to be more careful before entering agreements.

Because of stepped up enforcement efforts by the Occupational Safety and Health Administration (OSHA), employers need to prepare before being confronted with new forms of safety charges, and they may end up considering pursuing litigation to fight the charges because of the high cost of not doing so. That’s according to attorney Melissa A. Bailey of the Ogletree, Deakins, Nash, Smoak & Stewart law firm.

This situation has arisen because under President Biden, OSHA has chosen to ramp up enforcement actions intended to target repeat and willful violations and has increased penalty amounts significantly. As a result, if an employer faces the possibility of repeat or willful violations, it very well may decide that litigation is the best option, Bailey points out.

Earlier this year, attorneys Melanie L. Paul and Kristina Vaquera of the Jackson Lewis law firm argued that employers facing these charges should be willing to appeal an OSHA violation because, even if the process proves costly, it may help avoid being cited later for repeat, willful or failure-to-abate violations. But Bailey’s point is that once those kinds of charges start to pile up, litigation may be your best recourse to avoid future liability.

“Employers with strong defenses to citations may nevertheless want to avoid the costs and uncertainties of litigation,” she contends. “Before these policy changes, employers might have been willing to accept violations and settle in a way that minimized the possibility of repeat and willful violations. That is increasingly difficult in light of these policies.”

The potential consequences reach beyond simply having to pay a whopping fine, she stresses. “Ensuring that OSHA liability does not snowball is particularly critical for contractors required to report OSHA violations on contractor and supplier information management systems. A willful or repeat violation, or even a significant number of serious violations, often results in an inability to obtain new business or continue to work for existing customers.”

During the Biden administration, OSHA launched new enforcement policies that make it more difficult for employers to accept citations in settlement agreements, Bailey argues. This includes the expansion of the different kinds of situations in which an employer can be put into the Severe Violator Enforcement Program (SVEP).

In September 2022, OSHA revised its SVEP directive to state that an employer would be placed in the program any time that two or more repeat or willful violations of any standard occurred. An employer also will end up in the SVEP if OSHA issues one or more willful or repeat violations related to a fatality or catastrophe (three or more employees hospitalized).

SVEP Costs Can Spiral

When an employer is placed in the SVEP it then risks losing substantial business, Bailey points out. Some customers refuse to do any business with employers included in the SVEP and will terminate existing contracts, and some cities will not approve work permits for SVEP companies.

Consequences of being placed in the SVEP include press releases issued by OSHA before the employer has had an opportunity to present its defenses, letters to CEOs expressing disappointment in the company’s lack of care regarding employee safety, follow-up inspections at other worksites, and inclusion in OSHA’s SVEP log, which is posted on the agency’s website.

In another development, OSHA also has chosen to instruct its enforcement personnel to combine certain “instance-by-instance” (IBI) violations of the same standard into a single citation, including situations where the OSHA Area Director decides that he or she wants to “achieve a deterrent effect.”

For example, rather than issuing a single violation alleging an employer improperly trained employees or guarded machines, OSHA will issue one violation for each employee or machine. An alleged failure to train employees on how to wear respirators could result in 15 violations—one for each employee the employer failed to train.

“Instead of a single citation alleging multiple violations of a single standard, OSHA may now issue multiple separate violations,” Bailey explains. “It is difficult to conceive of a situation in which the Area Director does not want to ‘achieve a deterrent effect.’ That is, after all, one of OSHA’s primary roles. As such, employers can expect OSHA to use these policies often.”

Since the original SVEP was put in place during the Obama administration, OSHA’s attorneys have said, often and loudly, that they will not negotiate over inclusion in the SVEP, according to Bailey. She argues that this leaves employers between a rock and a hard place—decide to accept citations that may land them to inclusion in the SVEP or incur the cost, angst and uncertainty that comes with litigation? The situation is most acute for employers with multiple facilities because they face the most risk of being hit with repeat or willful violations, she notes.

Bailey emphasizes that OSHA does not recognize or acknowledge the costs of business damage that willful, repeat or SVEP violations can cause employers or their employees, who may have to face layoffs stemming from the business losses incurred as a result.

In addition, when it comes to being sued for placing an employer in the program, OSHA also loses the ability to negotiate corporate-wide abatement of hazards in a settlement agreement. Specifically, she explains that if an employer decides to litigate and loses, the employer will likely be required to abate the alleged hazards only at the cited facility or worksite.

“Had the case been settled, such that the employer was not included in SVEP, the employer might have been willing to revamp training, work practices, engage a third-party consultant to assist in addressing particular hazards, or otherwise address a hazard on a corporate-wide basis,” she says.

Taking Proactive Steps

Of course, the best way to avoid being charged with repeat and willful violations is being able to prove you have exercised due diligence in trying to create a safe working environment in the first place.

Bailey suggests that employers may find it useful to retain an expert or consultant to address a specific hazard that has been found to exist throughout a company’s operations. “An evaluation showing that the employer adequately addressed a hazard or implemented the recommendations of an expert cuts against any claim from OSHA that the employer did not care about safety or the specific hazard.”

It also can be helpful for employers to engage in a site-specific auditing program assessing various hazards in the workplace because these audits can be used to show that an employer took steps to address hazards and may not have had actual knowledge that a hazard existed. (Of course, if an employer audits but fails to implement or respond to action items, that could be cited by OSHA as proof that a willful violation occurred.)

She says employers also should take steps that will allow them to present a viable unpreventable employee misconduct defense. This should include implementing a work rule or policy addressing the hazard and training employees to ensure that they know about the requirements of the work rule.

Employers are urged to take other steps as well, such as implementing active supervision or routine worksite audits, to identify violations of the rule. You should be prepared to take disciplinary action as well—such as resorting to retraining, counseling, suspension, or termination—when individual violations of the rule are identified.

Employers also will want to ensure employees understand their training, according to Bailey. Written or online tests can be used to prove that employees understood the training. Employers may need to address employees’ language proficiencies when implementing new training programs.

Another helpful preventive measure is the proper deployment of safety committees and creation of a program to encourage safety suggestions from employees. This should include consultations with employees about the safest ways to conduct particular operations, which also can show that the employer is not indifferent to workplace safety.

As with auditing, responding to employee suggestions or views may turn out to be critical for employers when faced with these situations, she adds. If the employer rejects an idea, it may need to make sure that it has a clear business justification for doing so.

If all of these elements are met, OSHA will be less able to prove that a willful violation took place and in fact may not be able to prove any violation occurred at all. In the end, an employer’s best defense against any kind of safety violation is not to incur one in the first place.

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