On June 18, 2010, OSHA’s Severe Violator Enforcement Program (“SVEP”) became effective. This program was aimed at enhancing inspections and enforcement against “employers who willfully and repeatedly endanger workers by exposing them to serious hazards.”
A year later, OSHA has handled in excess of 100 severe violator cases, and 60% of those cases were against construction contractors. Under OSHA’s SVEP directive, employers who meet the following criteria are subject to severe violator enforcement:
(a) One or more willful, repeat, failure to abate citations in connection with an employee death/multiple hospitalization situations;
(b) Two or more willful, repeat, or failure to abate citations based on high gravity, serious violations relating to the following “high-emphasis hazards”: fall hazards; national emphasis programs concerning amputation, combustible dust, crystalline silica, lead, excavation, trenching hazards, grain handling;
(c) Three or more willful, repeat, or failure to abate citations concerning OSHA’s process safety standard (concerning potential release of highly hazardous chemicals;
(d) All “egregious” (per instance citations) enforcement actions.
The consequences of being labeled a severe violator are grave, including enhanced enforcement, such as mandatory follow-up inspections, nationwide inspections of related workplaces, increased notification, enhanced settlement provisions (for example, companywide compliance, mandatory hiring of safety consultant to implement comprehensive safety and health plan).OSHA has also issued an administrative penalty information bulletin through which it increased the time period for classification of “repeated violations” from three years to five years, and adopted a penalty structure for serious citations ranging from $3,000.00 to $7,000.00.
In sum, OSHA has adopted new enforcement techniques to ratchet up penalties and enforcement consequences. OSHA is using these enforcement techniques aggressively against all employers, including construction contractors.
However, there are steps that employers can take today to avoid violations and the consequences of being labeled a “severe violator.”
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.