The federal Occupational Safety and Health Administration (OSHA) applies wide-ranging authority to enforce its regulatory standards on subject employers. OSHA organizes this authority through a variety of enforcement programs, including a Severe Violator Enforcement Program (SVEP) focused on “employers that have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” On September 15, 2022, OSHA revised SVEP for the first time since 2010, significantly expanding its scope (Directive CPL 02-00-169, SVEP (9/15/22)). The rest of this note discusses SVEP, highlighting the latest revisions.
What situations subject employers to SVEP?
SVEP applies in any case where an OSHA inspection – typically one following a complaint or report of a serious incident at the worksite -- identifies that one of more of the following criteria are met:
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Fatality/Catastrophe—an OSHA post-fatality/catastrophe inspection finds that an employee’s death, or (effective 9/15/22) 3 or more hospitalizations, resulted from one or more willful or repeated (any gravity) violations, or (effective 9/15/22) from a previously-cited serious violation that the employer failed to abate; or
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Non-fatality/catastrophe but specified violations—an OSHA inspection finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these), based on serious violations of most standards, or on egregious record keeping violations. Effective 9/15/22 OSHA has expanded this criterion by removing its former restriction to high gravity serious violations related to a High-Emphasis Hazard covered by one of OSHA’s National Emphasis Programs (current examples include hazards of amputation, combustible dust, crystalline silica, lead, grain handling, and heat (see HERE)) or a Local Emphasis Program, or hazards of potential release of a highly hazardous chemical.
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Egregious case—any “egregious case” that meets both of the following criteria:
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violation is willful
- at least one of the following conditions applies:
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violations resulted in worker fatalities, a worksite catastrophe, or large number of injuries or illnesses
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violations resulted in persistently high rates of worker injuries or illnesses
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employer has an extensive history of prior OSH Act violations
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employer has intentionally disregarded its safety and health responsibilities
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employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of OSH Act duties
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employer has committed large number of violations that undermine significantly the effectiveness of any safety and health program that might be in place
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OSHA does not combine two or more inspections of the same employer to fulfill SVEP criteria. Instead, OSHA evaluates each individual inspection independently to determine if any SVEP criteria are met.
OSHA is to conduct follow-up inspections in all SVEP cases, even after it verifies the employer’s abatement of the cited violation(s), in order to confirm whether underlying problems have been addressed so that the employer is not committing similar violations.
- How might SVEP status at one location affect an employer’s other locations?
OSHA considers that an SVEP citation “may be indicative of broader patterns of non-compliance at related employer worksites.” If OSHA has “reasonable grounds to believe” that SVEP violations at one site may indicate a pattern, it may expand enforcement activity beyond the location where the violation occurred. Note the OSHA does not describe “reasonable grounds.” Expanded enforcement may include:
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inspection of other facilities of the same employer that are in the same industry type (3-digit North American Industry Classification System (NAICS) Code), within the same OSHA region or even nation-wide, to determine whether the citation at one facility may indicate a company-wide problem (“related worksites”);
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notification to the employer’s company headquarters and to associated employee representatives (such as unions). OSHA may meet with headquarters personnel, and the Regional Administrator or appropriate headquarters official may send a personal letter to the company’s president expressing OSHA’s formal concerns;
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information about the company may be distributed throughout OSHA and to state plan officials, to alert personnel nationwide to possible endemic problems;
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OSHA may include “enhanced settlement provisions” when resolving a particular SVEP citation and penalty, imposing broader and/or ongoing responsibilities on the employer (e.g., requiring hiring of a consultant to develop a health and safety programs), applying a company-wide settlement, requiring interim abatement controls, and/or requiring immediate or periodic submission of injury and illness information to OSHA; and
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OSHA may seek a federal court order requiring compliance with abatement and/or settlement conditions.
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OSHA provides the following criteria for the agency’s enforcement staff to apply when determining when an employer can qualify for removal from the program:
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At least 3 years must have passed since final disposition of all SVEP inspection citation items (or 2 years if employer develops and implements a safety and health management system).
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The employer has abated all SVEP-related hazards affirmed as violations, paid all final penalties, and met all settlement provisions.
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The employer has not have received any additional serious citations related to the identified SVEP hazards, at the initial establishment or any related establishments.
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OSHA has conducted at least one follow-up or referral inspection
In most cases, the appropriate OSHA Regional Administrator is authorized to determine whether an employer meets these criteria, and to release the employer from SVEP. However, if the employer is subject to a Corporate-Wide Settlement, the decision is made by OSHA headquarters.
What additional program changes is OSHA making?
OSHA’s new directive also includes a number of procedural updates related to the following:
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Handling SVEP cases.
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Conducting a follow-up or referral inspection.
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Addressing employers with 3 or fewer similar related workplaces.
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Addressing employers with 4 or more similar related workplaces.
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Handling construction and/or mobile worksites.
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Addressing nationwide inspections of related workplaces/worksites.
What happens next?
These revisions are effective immediately in OSHA’s regulatory and enforcement program nationwide. Delegated “state plan states” have 60 days to submit documentation that their programs are “at least as effective” as the expanded OSHA requirements (I recently wrote about state plan states HERE).
Self-evaluation checklist
Has the organization received any non-compliance citations from OSHA or a state plan state within the last 3 years?
If so, has the organization resolved each such citation?
If so, has the organization evaluated each of its facilities where similar activities are underway, to determine their (non)compliance with applicable standards?
Where can I go for more information?
- OSHA
- latest SVEP enforcement Directive (CPL 02-00-169; 9/15/22)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com