OSHA widens enforcement scope with severe violator program update

Changes to the SVEP announced in September aim “[t]o strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses,” said OSHA in a press release. In practical terms, compliance officers will want to closely reevaluate and fortify their workplace health and safety culture or risk the enhanced enforcement penalties and compliance obligations that will now follow.

OSHA first established the SVEP in 2010 to inspect employers that commit “willful, repeated, or failure-to-abate violations” under the Occupational Safety and Health (OSH) Act. The agency’s revised program replaces the 2010 version and remains in effect until canceled or superseded.

Previously, companies would be placed on the SVEP list if they had any incident involving a fatality, three or more hospitalizations, the potential release of a highly hazardous chemical, an enforcement action classified by OSHA as “egregious,” or two or more “willful or repeated violations” of “high emphasis hazards.” The most significant change is the new criteria now include violations of all hazards and OSHA standards.

Under the new standards, an employer can be placed on the SVEP list if OSHA finds at least two willful or repeated violations or issues a failure-to-abate notice for “high-gravity” serious violations. OSHA categorizes the gravity of a violation as high, medium, or low. In its enforcement directive, the agency provided a sample cover letter that will be included with the employer’s citation packet spelling out these factors.

Theoretically, every employer was potentially subject to the previous SVEP but with a focus only on certain standards. Some standards posed a greater risk to certain industries, like construction and manufacturing.

“As a practical matter now, with a broadening of the criteria to include all [OSHA] standards, every industry now has an equal chance ending up on the list,” said Patrick Dalin, previously a senior trial attorney with the Labor Department and now of counsel with law firm Fisher Phillips.

Inspection protocols

Employers placed on the SVEP list will continue to be subject to follow-up or referral inspections but now on a much shorter timeframe. Previously, OSHA had no established timeframe to conduct an inspection; it will now conduct such inspections within one year, but not longer than two years, after receipt of a final order.

“The purpose of the follow-up or referral inspection is to assess not only whether the cited violation(s) were abated but also whether the employer is failing to address similar or related hazards,” OSHA stated in its enforcement directive.

One inspection could incite OSHA to conduct more inspections at other facilities or worksites.

“[I]ndifference to compliance responsibilities under the OSH Act at one worksite may indicate broader patterns of noncompliance at that employer’s related worksites,” the agency said. “When OSHA has reasonable grounds to believe that violations identified in the initial inspection may indicate a broader pattern of noncompliance, the agency must inspect related worksites of the same employer.”

Companies should refer to OSHA’s enforcement directive for specific guidance, as it includes a long list of criteria the agency will consider when deciding whether to conduct additional inspections (see sidebar).

As an offshoot of undergoing an inspection, being placed on the SVEP list further opens companies up to broader enforcement activity. “In aggregate, employers who end up on the list and face follow-up inspections as a result could end up with more citations and more penalties,” Dalin said.

SVEP removal

Previously, removal from the SVEP list was three years after issuance of a final order. Now, potential removal from the list begins three years after the date of receiving verification the employer has abated all SVEP-related hazards.

To be eligible for removal, the employer must also have paid all final penalties; followed and completed all settlement provisions, where applicable; received no additional serious citations related to the hazards identified in the original SVEP inspection or any related establishments; and have received one follow-up or referral OSHA inspection.

Companies might be eligible for removal from the list after two years if they consent to an enhanced settlement agreement that includes implementing a safety and health management system comprised of the seven core elements in OSHA’s Recommended Practices for Safety and Health Programs guidance.

OSHA’s enforcement directive further requires implementation be verified by an “independent third party”—such as a certified safety professional; certified industrial hygienist; or for unionized employers, a national union safety and health representative—subject to OSHA approval.

Compliance lessons

Dalin noted the revisions to the SVEP are consistent with OSHA’s more aggressive enforcement footing over the past couple of years. Companies will want to prepare as best as possible for an inspection or an investigation not just by OSHA but also other Labor Department agencies, like the Wage and Hour Division, he said.

Because companies often do not receive forewarning of an OSHA inspection, employers should proactively have a plan in place for how to prepare.

“Who will be the point person? Who will be in charge of responding to document requests? Do they need to contact outside counsel?” Dalin said. “They (businesses) should have all that proactively in place for when OSHA shows up at the door.”

Employers should also keep in mind “an injury is not required for a violation of an OSHA standard,” said Melanie Paul, a former trial attorney at the Labor Department and now co-leader of the workplace safety and health practice group at law firm Jackson Lewis. “Oftentimes, in the course of conducting an inspection, OSHA will observe an unsafe condition or get a complaint about an unsafe condition and come to the worksite and investigate.

“It’s a good reminder to employers to review their safety and health programs and make sure they are where they need to be, and to be auditing their worksites for compliance to ensure proper implementation of the safety rules and procedures at their worksites.”

OSHA maintains a public log of its severe violator inspections. Thus, in addition to broader inspections and a higher risk of enforcement actions and penalties, there is also a public perception aspect of the program companies will want to avoid to reduce the additional risk of reputational damage.