OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

In a memorandum to Regional Administrators, OSHA's Director of Enforcement Programs (DEP) has set forth the criteria for employers to be removed from the Severe Violator Enforcement Program (SVEP).  The memorandum stems from a review of the SVEP undertaken by DEP in fiscal year 2011.

Under the memorandum, an 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.  In addition, employers must have "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."

Final approval of removal from the SVEP is at the discretion of the Regional Administrator or his/her designee (except when national corporate-wide settlements are involved).  The memorandum also calls for an additional follow-up inspection before removal finally occurs.

Since the SVEP was issued, employers have questioned the agency on whether and how an employer in the SVEP can be removed from the program.  This memorandum provides further guidance to employers, but still leaves discretion to the Regional Administrators or Area Directors.

All employers should take note of this new memorandum.  

• Email This
• Print
• Comments
• Trackbacks

OSHA is 40 this year and the Agency is looking back on its history and "celebrating" its accomplishments.  OSHA recently issued a timeline that stretches all the way back to December 29, 1970, when the Occupational Safety and Health Act was signed, and highlights Agency accomplishments up to the present.   

Not surprisingly, the timeline is heavily populated by regulatory actions and standards issued by the Agency.  Rules varying from asbestos, to grain handling, to Nationally Recognized Testing Laboratories are highlighted.  Interestingly, the timeline highlights a non-federal OSHA rule as well - California's adoption of an ergonomics standard in 1997.  OSHA does not mention that it finalized its own ergonomics standard toward the end of the Clinton Administration, which was later rescinded by Congress under the Congressional Review Act.  OSHA also highlights the start of several voluntary compliance programs, such as its Voluntary Protection Program, its training and education grants, and the development of its safety and health program guidelines in 1989.

As for OSHA's recent accomplishments, the list includes a few, notably OSHA's proposed initiative to require employers to adopt an Injury and Illness Prevention Program.  "I2P2" seems to continue to be OSHA's signature regulatory initiative, however, stakeholders are still waiting for the Agency to begin the Small Business Regulatory Enforcement Fairness Act process for the proposal and as the timeline attests, it has been almost a year since OSHA announced this initiative.  The list does not include major enforcement initiatives issued recently, such as the Severe Violator Enforcement Program and OSHA's Administrative Penalty Increase Memorandum.

Stakeholders should check OSHA's timeline out -- it is worth the read!  

• Email This
• Print
• Comments
• Trackbacks

In what is certainly one of the most active periods in OSHA's history, the Agency is using every tool at its disposal to ensure that employers are in compliance with OSHA's standards and rules.  OSHA is pushing forward with new rules, enforcement initiatives, interpretive letters, media initiatives, and so forth, at an unprecedented pace.

A review of OSHA's website demonstrates the variety of means the Agency is utilizing to handle safety and health issues.  New rules such as OSHA's Cranes and Derricks in Construction rule are highlighted, as are the several new enforcement measures implemented by the Agency:  the Severe Violators Enforcement Program; the Administrative Penalty Bulletin; and the OSHA Training Standards Policy.  In a somewhat new approach, the website also highlights "Industry Alerts," which are alerts of safety and health issues focused on specific industries.  And these initiatives do not even include the various news releases and multi-media presentations available on the website, or the 36 letters of interpretation that have been issued so far this year.

Employers must match this activity level and be especially vigilant to ensure that they know the latest positions of the Agency on safety and health issues relevant to their worksites. 

• Email This
• Print
• Comments
• Trackbacks

OSHA has just announced that its Severe Violator Enforcement Program (SVEP) is effective June 18th.  The SVEP “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.  In addition, OSHA intends to prominently publicize -- in press releases and on its website -- those employers that are part of the program. 

The following types of cases are considered SVEP cases under the program:

• A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
• An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
• An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
• All egregious enforcement actions.

OSHA continues its emphasis on enforcement and the SVEP is another tool that employers should expect OSHA to use aggressively.  Employers should take some time now to review their safety and health management systems to ensure that they are fully compliant with OSHA rules and proactively addressing safety and health issues in the workplace.

• Email This
• Print
• Comments
• Trackbacks

In moves designed to enhance the effectiveness of its enforcement activities, OSHA has unveiled a new “Severe Violator Enforcement Program” and a memorandum to Regional Administrators that has the effect of increasing penalties for employers receiving citations. These enhancements are further evidence of OSHA’s emphasis on enforcement and all employers must take note.

Severe Violator Enforcement Program

OSHA’s Severe Violator Enforcement Program (SVEP) “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of an SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the same employer of related worksites, increased “company awareness” of OSHA’s enforcement actions against the company, and enhanced settlement provisions including possible corporate-wide agreements.

The following types of cases are considered SVEP cases under the program:

• A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.
• An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a “high-emphasis hazard.” A high-emphasis hazard is defined as a high gravity serious violation of specific standards related to fall hazards, amputation hazards, combustible dust hazards, silica hazards, lead hazards, excavation/trenching hazards, shipbreaking hazards, and petroleum refinery hazards.
• An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to highly hazardous chemicals, as defined in OSHA’s process safety management standard.
• All egregious enforcement actions.

Administrative Enhancements to OSHA’s Penalty Policies

OSHA has also issued a memorandum to Regional Administrators that administratively enhances OSHA’s penalties. OSHA finds in the memorandum that currently “the Agency’s penalties are too low to have an adequate deterrent effect.” In effect, the memorandum revises OSHA’s penalty classification system, as currently outlined in its Field Operations Manual (FOM). Of particular note, OSHA is:

• Expanding the time frame for considering an employer’s history of violations (when setting penalties) from three to five years.
• Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years. 
• Increasing the minimum proposed penalty for a serious violation to $500.
• Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty.  (OSHA’s example in the memorandum results in an increase of approximately 50%.)

These changes to OSHA’s enforcement policies are significant.  Now more than ever, employers must take steps to evaluate their safety and health programs and proactively deal with safety and health issues at the workplace.

• Email This
• Print
• Comments
• Trackbacks