OSHA Sets Forth Steps Employers Must Take to be Removed From the Severe Violator Enforcement Program

Posted on August 24, 2012 by Ilyse Schuman

The Occupational Safety and Health Administration (OSHA) has issued a memorandum to its regional administrators informing them of the criteria employers must meet to be removed from the agency's Severe Violator Enforcement Program (SVEP). The SVEP – which took effect in June 2010 – is a program that subjects employers to more significant enforcement measures and penalties for willful, repeat, and failure-to-abate violations of the Occupational Safety and Health (OSH) Act.

According to the OSHA memorandum dated August 16, 2012, an employer is eligible for removal from the SVEP three years after the final disposition of the issues raised by the SVEP inspection. Such “final dispositions” include failure to contest the citation, entering into a settlement agreement, the OSHA Review Commission’s issuance of a final order, or the release of a court of appeals decision. In addition, the employer must have abated all SVEP-identified hazards that constitute violations, paid all fines, complied with all settlement terms, and not have received additional serious citations related to the initial SVEP inspection at the initial or related worksites.

The regional administrator will have the discretion – except in cases involving national corporate-wide settlements – to approve the employer’s removal from the SVEP roster. If the employer fails to take the above steps, it will remain on the SVEP list for three more years, then be re-evaluated. For cases involving national corporate-wide settlement agreements, the OSHA Director of Enforcement Programs will make the determination, upon the termination of the agreement, regarding the employer's removal from the program. The memorandum states that removal from the SVEP cannot be used as an incentive for settlement.

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OSHA Unveils Severe Violator Enforcement Program

Posted on April 26, 2010 by Ilyse Schuman

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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