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.