As we head into the new year, it is important to remain up to date on policies that may affect your business. In an effort to strengthen enforcement, improve compliance with workplace safety standards, and reduce worker injuries and illnesses, the U.S. Department of Labor (DOL) is expanding the criteria for placement in the Occupational Health and Safety Administration’s (OSHA) Severe Violator Enforcement Program.
What is the Severe Violator Enforcement Program?
Originally created in June 2010, the Severe Violator Enforcement Program (SVEP) focuses enforcement and inspection resources on employers who willfully and/or repeatedly violate federal health and safety laws or refuse to correct their previous violations. The employers who are placed in this program also appear on a public list of “severe violators” and are subject to follow-up inspections conducted by the Occupational Safety and Health Administration (OSHA).
Before this new update from the DOL, employers could be placed into the SVEP for the following reasons:
- OSHA issued at least one willful or repeated violation or a failure-to-abate notice based on a serious violation related to the death of one employee or the hospitalization of three or more employees.
- OSHA issued two or more willful or repeated violations or issued failure-to-abate notices related to high-emphasis hazards, such as falls, combustible dusts, silica exposure, lead, and amputations.
- OSHA issued three or more willful or repeated violations or issued failure-to-abate notices for high-emphasis hazards related to the potential release of a highly hazardous chemical.
- OSHA issued an “egregious” violation. Under CPL 02-00-080, an employer is liable for an egregious violation when the employer has demonstrated:
- “Persistently high rates” of worker illnesses/injuries or fatalities;
- “An extensive history of prior violations of the [OSH Act];”
- Intentional disregard for responsibilities of health and safety; or
- “Bad faith in the performance of … duties under the [OSH Act].”
An employer can be placed on the list before a hearing and without any due process.
Once placed in the SVEP, employers are subject to:
- Enhanced penalties;
- A mandatory follow-up inspection within one year after the citation becomes final, regardless of if the employer has verified abatement of the violation;
- If OSHA has “reasonable grounds to believe” that single-site violations “indicate a broader pattern of non-compliance”, they can conduct regional or nationwide inspections of the employer’s related workplaces and worksites; and
- Publication of the employer’s SVEP status through news releases, which can hurt a company’s reputation, impact current and future clients and customers, and create financial difficulties
Additionally, employers can be placed in the SVEP program even if none of its own employees were exposed to SVEP-related hazards due to OSHA’s “multi-employer” citation policy.
Key Updates to the SVEP:
The new criteria include:
- Program placement for employers with citations for at least two willful or repeated violations or who receive failure-to-abate notices based on the presence of high-gravity serious violations.
- SVEP employers will have follow-up or referral inspections made after at least one year, but not longer than two years, after the final order.
- A potential removal from the Severe Violator Enforcement Program three years after the date of receiving verification that the employer has abated all program-related hazards.
- An employer’s ability to reduce time spent in the program to two years if they consent to an enhanced settlement agreement that includes the use of a safety and health management system that implements the seven basic elements in OSHA’s Recommended Practices for Safety and Health Programs.
The updates to the SVEP will assist the program in cracking down on employers who expose their employees to serious dangers and will help ensure that workers come home safe at the end of the day. These updates are important to keep in mind for all employers, as employee safety should always be top-of-mind.
If you find you need additional guidance on how to maintain a safe and healthy work environment, feel free to reach out to your HR Consultant to help walk you through the process.