OSHA Expands Severe Violator List EligibilityDec 01, 2022
For employers everywhere, the long-term consequences of “just settling” citations have become even more consequential. In mid-September, the Occupational Safety and Health Administration (OSHA) announced significant changes to its Severe Violator Enforcement Program (SVEP). The new instruction document updates policies and procedures and includes measures that make it easier to get on OSHA’s severe violator list and more challenging to be removed. This new “sharpened focus,” in the words of Assistant Secretary of Labor for OSHA, Doug Parker, is targeted at “employers who fail to mitigate hazards even after receiving a citation.”
Employers are finding themselves on the SVEP list before they have had a full and fair opportunity to contest the corresponding citations. Due process is not OSHA’s concern.
Getting on the list
Since 2010, the SVEP has been a guide for concentrating OSHA’s enforcement efforts and resources on employers that have “demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.”
Before the update, the criteria to get into the SVEP were limited to cases involving fatalities, three or more hospitalizations, high-emphasis hazards, enforcement actions considered egregious, and the potential release of highly hazardous chemicals (process safety management).
Other ways to get on the SVEP list involved three or more “high gravity, willful, or repeated” violations of a safety standard by the employer or failure to abate a cited hazard.
Now, all OSHA standards are considered in an employer receiving an SVEP designation. Under the new instructions, OSHA compliance officers can consider an employer an SVEP case if an inspection discloses at least one of the following conditions:
Fatality/Catastrophe. An inspection can result in an SVEP case if, when conducting a fatality/catastrophe inspection, OSHA finds additional willful or repeated violations or issues a “failure-to-abate” notice involving a severe violation that is directly related to the death of an employee or an event resulting in three or more hospitalizations.
Non-Fatality/Catastrophe. If OSHA conducts an inspection and finds at least two willful or repeated violations or issues a failure-to-abate notice (or any combination of these violations/notices) based on high-gravity serious violations.
Egregious. OSHA’s “egregious violations” policy instructs inspectors to cite employers for multiple violations of the same standard — and put them on the SVEP list — when the employer has demonstrated one or more of the following: (1) persistently high rates of illness/injury or fatalities; (2) extensive history of prior violations; (3) intentional disregard of health and safety responsibilities; or (4) bad faith (a plain indifference to standards or requirements).
Under the new directives, an employer placed in the SVEP is subject to the following:
- A follow-up inspection within one year, even if the employer has verified the abatement of the cited violation.
- More reporting and OSHA oversight. In accepting an “Enhanced Settlement Agreement,” the employer could be required to submit its Log of Work-Related Injuries quarterly and to allow OSHA “unfettered access to inspect the workplace” based on that information.
- Inspection of the employer’s regional and national workplaces if OSHA has “reasonable grounds to believe” that single-site violations “indicate a broader pattern of non-compliance.”
- Publication of the employer’s status through OSHA news releases. OSHA also maintains an SVEP Public Log on the OSHA website.
Getting off the list
For now, any employer currently on the SVEP list will remain there for at least through 2024. For new SVEP participants, the new instructions indicate that OSHA can remove an employer from the severe violators list after at least three years, beginning from the date OSHA accepts and verifies the employer’s abatement plan. For SVEP removal, OSHA expects the employer to have:
- Abated all SVEP-related hazards,
- Paid all final penalties,
- Where applicable, followed and completed all applicable settlement provisions,
- Received no additional serious citations related to the hazards identified in the original SVEP inspection or any related establishments, and
- Received one follow-up or referral OSHA inspection
Employers may agree to an Enhanced Settlement Agreement that can reduce the SVEP term to two years. In such cases, SVEP removal is contingent on the employer agreeing to develop and implement a comprehensive safety and health management system (SHMS). The SHMS should include at least the seven essential elements outlined in OSHA publication 3885, Recommended Practices for Safety and Health Programs, and should also include provisions for evaluating and improving program effectiveness, along with a condition for OSHA’s review and evaluation of the SHMS.
With OSHA’s recent overhaul of OSHA’s SVEP, employers should be prepared for more enforcement follow-up activity and more significant penalties. As COVID concerns recede — and with some additional funding from Congress — it’s clear that OSHA is returning to more customary safety and health issues in the months ahead.
Important new questions for employers are about the long-term consequences of “just settling” citations because of the hassle that contesting citations entails. Does this set you up for being labeled a severe violator?
Employers on the SVEP list risk disqualification from bidding on some projects, damaging the company’s public reputation and becoming an easy target for enhanced OSHA enforcement activity.
If you have additional questions about the SVEP program — or have received an OSHA citation for any reason — don’t hesitate to contact Orr & Reno for assistance.
About the Author: James Laboe