Washington D.C. Employment Law Update
OSHA Unveils Severe Violator Enforcement Program
The Occupational Safety and Health Administration (OSHA) has released the final version of its Severe Violator Enforcement Program (SVEP), (pdf) the much-anticipated enforcement plan that will subject employers to more significant enforcement measures and penalties for willful, repeat, and failure-to-abate violations of the OSH Act. Such enforcement actions for severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of OSHA enforcement, corporate-wide agreements where appropriate, enhanced settlement provisions, and federal court enforcement. The SVEP replaces the agency’s Enhanced Enforcement Program (EEP).
According to a news release issued by the Department of Labor, the SVEP – which will become effective within the next 45 days – is intended to focus OSHA enforcement resources on:
recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law. This supplemental enforcement tool includes increased OSHA inspections in these worksites, including mandatory OSHA follow-up inspections, and inspections of other worksites of the same employer where similar hazards and deficiencies may be present.
In a statement, OSHA Assistant Secretary of Labor David Michaels claimed: “For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA's requirements,” adding, “Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees.”
Questions remain as to whether the SVEP will unduly penalize employers that are making strides to improve workplace safety. Additionally, if an OSH citation is found to have no merit, it could prove burdensome for employers to remove themselves from the SVEP log kept by OSHA. Under the SVEP’s provisions, employers can be “lined out” of the SVEP log by entering into a formal or informal settlement agreement in which the citation is deleted, or if an Administrative Law Judge, Review Commission, or court decision vacates the citation.
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