By James L. Curtis, A. Scott Hecker, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen
Seyfarth Synopsis: On September 15, 2022, U.S. Department of Labor’ Occupational Safety and Health Administration announced expanded criteria for placement in its Severe Violator Enforcement Program (“SVEP”). The new criteria widens the scope of applicable violations to all hazards and OSHA standards, while maintaining the Program’s focus on repeat offenders.
Federal OSHA maintains a list of “severe violators,” updated quarterly, on its website. OSHA will include an employer in SVEP pursuant to a formulaic analysis of the type, number, and classification of citations received, even if they are under appeal. Now OSHA is widening the program.
According to Assistant Secretary for OSHA, Doug Parker:
[The revised SVEP] empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards . . . . [T]oday’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.
OSHA’s updated Instruction revises several SVEP program procedures and criteria, introduces new procedures and criteria, and provides other information about the Program. Procedural updates include:
- Handling SVEP cases;
- Conducting a follow-up or referral inspection;
- Addressing employers that have three or fewer similar related workplaces;
- Addressing employers that have four or more similar related workplaces;
- Handling construction and/or mobile worksites; and
- Addressing nationwide inspections of related workplaces/worksites.
Program criteria updates include:
- The Non-Fatality/Catastrophe Criterion no longer requires exposure to specific high emphasis hazards or to hazards related to the potential release of a highly hazardous chemical (Process Safety Management);
- SVEP removal eligibility now begins three years after the date an employer completes abatement instead of from the final order date; and
- Addition of a minimum 2-year duration in SVEP that includes specified criteria for removal based on a safety and health management system.
OSHA also offers “helpful additions,” like sample cover letters; a SVEP employer removal memorandum template; auxiliary SVEP log removal criteria and procedures (for closed workplaces five years from the final order date), and new procedures and guidance for recording and tracking inspections in the OSHA – Information System (OIS).
A nationwide referral under the SVEP can lead to substantial costs and OSHA inspections at company facilities across the country, so it is important to remain vigilant in carefully reviewing and responding to OSHA citations. OSHA’s revised SVEP makes it clear that aggressive enforcement and substantial penalties remain a primary objective for the Agency.
Please see our prior SVEP blogs with additional thoughts: OSHA Updates Emphasis Program on Amputations – Cites Employer and Places It on Severe Violators List, OSHA Publishes Severe Violator “White Paper”, Procedures for Removal from the OSHA Severe Violator Enforcement Program List, and OSHA Severe Violator Enforcement Program Employers List Nearly Doubles.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.