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.  

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It has been several months since OSHA unveiled its Severe Violator Enforcement Program (SVEP), which focuses OSHA's enforcement resources on employers "who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations."  This is the time for employers to ramp up their safety and health efforts to ensure that they do not become a "severe violator" in OSHA's view.  Here is a powerpoint presentation that recaps OSHA's SVEP and provides some key advice to avoid being in the program.  It also provides a breakdown of OSHA's initiative to increase civil penalties administratively.  With a particularly active OSHA enforcement program, employers must continually focus on their safety and health programs to ensure they are fully compliant with OSHA standards.       

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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.

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