In August 2012, the Occupational Safety & Health Administration (OSHA) issued a memorandum to all regional administrators within the agency setting out criteria for removing employers from the Severe Violator Enforcement Program (SVEP). OSHA’s SVEP was designed to dedicate agency resources to inspecting those employers that OSHA considers “recalcitrant,” that is those employers issued willful, repeat, or failure to abate citations. According to the recent memo, employers “may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items.”

Final disposition would include failing to contest a citation, which makes the citation final; an informal or formal settlement agreement; a final order from the Occupational Safety & Health Review Commission; or a final order from a U.S. Court of Appeals.

However, an employer’s removal is not automatic at final disposition. Rather, OSHA has left the decision to remove an employer from the SVEP to the discretion of an OSHA regional administrator and has conditioned the removal, not only on the three-year “waiting period” from the final disposition, but also on an additional follow-up inspection and Integrated Management Information System/OSHA Information System data. All of which suggest that the decision to remove an employer is subjectively at the will of each OSHA regional administrator.

It comes as no surprise that the removal criteria under the SVEP are much more stringent than under the predecessor Enhanced Enforcement Program (EEP). Under the EEP, if a violation that qualified the employer for an EEP designation was withdrawn under an informal or formal settlement agreement, or if an administrative law judge, OSHA Review Commission, or court decision vacated the qualifying violation, the entry on the EEP log was automatically lined-out, and the designation of the EEP was removed from the employer’s inspection record.

Now, employers must be diligent to ensure that they are removed from the SVEP log after three years. Given the significant discretion that each regional administrator has, OSHA may not take the appropriate steps to make certain that employers are removed from the SVEP.

Nothing in this blog post is intended to be legal advice. The Ogletree Deakins Workplace Safety and Health Practice Group can assist you when dealing with specific matters. Please feel free to contact us.

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