OSHA Expands Criteria for Severe Violator Enforcement Program

The Occupational Safety and Health Administration (OSHA) has announced that it is revamping its Severe Violator Enforcement Program (SVEP) to include more criteria that may cause employers to be placed on the list. Two repeat violations at one site can qualify an employer for inclusion in the SVEP. As a result, more employers will be at increased risk of being dubbed a “severe violator,” increasing the need for employers to object to even the smallest OSHA violations. OSHA’s changes to the SVEP went into effect on September 15, 2022.

Consequences of SVEP for Employers

The consequences of the SVEP for employers can be harsh. Among the repercussions are mandatory follow-up inspections, placement on OSHA’s public “severe violator” list, and submission of the company’s log of workplace-related injuries to OSHA quarterly rather than only during routine inspections. For large companies, OSHA may issue press releases about violations and issue warning letters to company officers. OSHA provides no due process or a hearing for employers before it includes them on the “severe violator” list.

It is likely that expansion of the SVEP criteria will increase enforcement for more employers over a broader range of industries. In addition, recent congressional proposals to increase funding for OSHA also may cause greater enforcement activities and penalties. 

OSHA’s Changes to the SVEP 

Before the recent changes, OSHA could include employers in the SVEP if they committed a willful or repeated safety standard violation that resulted in a catastrophic or fatal accident. Three or more “high gravity” willful or repeated OSHA violations, failure to abate a cited hazard that resulted in the release of a highly dangerous chemical, and two or more “high gravity” willful or repeated violations for “high emphasis” hazards also could result in inclusion in the SVEP. 

OSHA’s former criteria for its SVEP led to public criticism. OSHA has responded to that criticism by expanding the SVEP and doubling down on its position that a business’s repeated actions that exhibit disregard for the health and safety of its workforce merit stringent OSHA enforcement. The major changes to the criteria for the SVEP include the following:

  • Qualifying hazards for inclusion in the SVEP now encompass all safety and health hazards in the workplace, not just high emphasis hazards and highly dangerous chemical hazards; 
  • Two or more willful or repeated violations qualify for inclusion in the SVEP, regardless of the OSHA standard involved; and
  • Two or more failure-to-abate violations qualify for inclusion in the SVEP, regardless of the OSHA standard involved.

Completing the SVEP and Removing the “Severe Violator” Designation

Removal from the SVEP can be challenging and often takes two to three years. To successfully exit the SVEP, companies must abate all SVEP-related hazards, pay all final penalties to OSHA, and complete all settlement provisions. Additionally, companies must receive no further serious citations related to the hazards that led to the original SVEP inclusion and have at least one follow-up OSHA inspection.

A company can reduce its time in the SVEP to two years if it enters an enhanced settlement agreement that includes using an OSHA-approved safety and health management system. The mandates of a settlement agreement can be onerous and even impractical for workplaces. Companies also must bear the costs of hiring a consultant to manage the safety program. 

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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