OSHA Expands Scope of Its Severe Violator Enforcement Program to Target Additional Employers

On September 15, 2022, the Occupational Safety and Health Administration (OSHA) published Directive Number CPL 02-00-169, a new instruction to its enforcement arm, updating policies and procedures for OSHA’s Severe Violator Enforcement Program (SVEP). The instruction, which took effect immediately, aims to expand the scope of the SVEP and target additional industries.

About the SVEP

The SVEP focuses OSHA’s inspection resources on “employers that have demonstrated indifference to their OSH Act [Occupational Safety and Health Act] obligations by committing willful, repeated, or failure-to-abate violations” of the OSH Act. An employer placed in the SVEP is subject to (1) enhanced penalties; (2) a mandatory follow-up inspection within one year after a citation becomes final, regardless of whether the employer has verified abatement of the cited violation; (3) regional or nationwide inspection of the employer’s related workplaces and worksites if OSHA has “reasonable grounds to believe” that single-site violations “indicate a broader pattern of non-compliance”; and (4) publication of the employer’s SVEP status through news releases. (Employers may want to note that such news releases can hurt a company’s reputation, impact current and future clients and customers, and create financing difficulties.) Significantly, under OSHA’s “multi-employer” citation policy, “[a]n employer can qualify for SVEP even if none of its own employees were exposed to [SVEP-related] hazards.”

Under the previous instruction (CPL 02-00-149), in effect since 2010, OSHA placed an employer under the SVEP if an inspection met one or more of the below-mentioned criteria:

• 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 hospitalizations 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 (1) “persistently high rates” of worker illnesses/injuries or fatalities; (2) “an extensive history of prior violations of the [OSH Act]”; (3) intentional disregard for health and safety responsibilities; or (4) “bad faith in the performance of … duties under the [OSH Act].”

OSHA determines SVEP status at the time citations are issued.

Key Takeaways

OSHA has expanded the reach of the SVEP in the apparent hope that the new instruction will apply to additional industries. The instruction expands the SVEP’s scope by removing the restriction requiring that an employee be exposed to a specific high-emphasis hazard or to hazards related to the potential release of a highly hazardous chemical. As a result, employers may now be targeted under the SVEP if they are issued at least two willful or repeated violations based on high gravity serious violations. In determining the gravity and severity of a violation, OSHA considers (1) the severity of the injury or illness that could result from an alleged violation, and (2) the probability that an injury or illness could occur because of the alleged violation.

OSHA has also extended the required period of time that an employer is subject to the SVEP. Once in the SVEP, employers will remain on the list for at least three years from the date the employer completes abatement; before this instruction, employers were eligible for SVEP removal three years after the final order. To be removed from the SVEP public log, an employer must establish abatement of all SVEP-related hazards, pay all final penalties, “[w]here applicable, follow[] and complete[] all applicable settlement provisions,” receive no additional serious citations for the SVEP-related hazard in the cited location or related establishments, and “receive[] one follow-up or referral OSHA inspection.”

Under the new instruction, an employer may reduce its time in the SVEP public log to two years if it “agrees to an Enhanced Settlement Agreement” pursuant to which it “develop[s] and implement[s] a safety and health management system (SHMS), within the two-year period, that includes policies, procedures, and practices that are effective to recognize and abate occupational safety and health hazards and protect employees from those hazards.”

The instruction states that the SHMS “should include at least the seven basic elements” set forth in OSHA Publication 3885, “Recommended Practices for Safety and Health Programs.” The instruction also states that an SHMS should provide mechanisms for the evaluation and improvement of program effectiveness, “OSHA’s review and evaluation of the SHMS,” and implementation “verified by an independent third party,” such as a certified safety professional (CSP), certified industrial hygienist (CIH), or, if the employer is unionized, a national union safety and health representative.

In light of the expansion of the SVEP, employers may want to take the time to educate management teams to determine what steps can be taken to stay out of OSHA’s SVEP spotlight.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor and report on developments with respect to OSHA’s SVEP and will post updates on the firm’s Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.