The law firm of Morgan, Lewis & Bockius LLP has published details about the upcoming OSHA Severe Violator Enforcement Program (SVEP). The SVEP has been in development for more than a year, but Morgan Lewis indicated that a 27-page draft Directive was sent from OSHA to state officials in early April.
Highlights from the Morgan Lewis review:
According to the draft Directive, the SVEP will “focus increased enforcement attention on significant hazards and violations” by concentrating on employers that have demonstrated “indifference” to workplace safety obligations through willful, repeated, or failure-to abate-violations in four areas: (1) fatality or catastrophe situations; (2) industries that expose employee to the most severe hazards, including those identified in the draft Directive as “High-Emphasis Hazards”; (3) industries that expose employees to the potential release of highly hazardous chemicals; and (4) egregious enforcement actions. Once an employer is selected for the SVEP, OSHA will undertake a number of enforcement steps including enhanced follow-up inspections as well as inspections at other worksites of that same employer, potentially on a nationwide basis…
OSHA will consider any inspection that meets one or more of the following criteria as a candidate for the SVEP:
- Fatality/Catastrophic Criteria. A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated citations or failure-to-abate notices based on a serious violation related to the death of an employee or three or more employee hospitalizations. Violations under this section do not need to be classified as “High-Emphasis Hazards.”
- Nonfatality/Noncatastrophic High-Emphasis Hazards. An inspection that finds two or more willful or repeated violations or failure-to-abate notices based on high-gravity, serious violations due to a High-Emphasis Hazard. A “High-Emphasis Hazard” is one based on a fall or a specific National Emphasis Program (NEP) identified in the draft, and thus includes (1) fall hazards under general industry, construction, shipyard, marine terminal, and longshoring standards; (2) amputation hazards; (3) combustible dust hazards; (4) crystalline silica hazards; (5) lead hazards (based on sampling); (6) excavation and trenching hazards; and (7) ship-breaking hazards.
- Nonfatality/Noncatastrophic Hazards Due to the Potential Release of a Highly Hazardous Chemical—Process Safety Management (PSM). An inspection that finds three or more willful or repeated violations or failure-to-abate notices based on high-gravity, serious violations related to petroleum refinery hazards, i.e., hazards covered by the petroleum refinery PSM NEP and hazards associated with the potential release of highly hazardous chemicals, as defined by the PSM Covered Chemical Facilities NEP.
… Placement into the SVEP will trigger a number of serious consequences for employers. While actions taken against an employer will be judged on a case-by-case basis, SVEP employers may be targeted for:
- Enhanced, Broad Follow-Up Inspections. Follow-up inspections of the cited workplace will be conducted after the citation becomes a final order, even if abatement verification has been received. In other words, these follow-up inspections are not limited in scope to whether the identified hazard has been abated, but will also include an assessment of whether the employer is engaging in similar violations. For Construction Industry worksites that close before a follow-up investigation can be conducted, at least one of the employer’s other worksites will be inspected.
- Nationwide Inspections. Where the agency has reason to believe that a citation is part of a broader pattern of noncompliance, OSHA will conduct inspections at related worksites of that employer.
- Egregious Violations. All “egregious” enforcement actions—cases where OSHA has alleged instance-by-instance violations of a particular standard—will be considered SVEP cases…
…while OSHA has not announced an implementation date for the SVEP, employers should take the time now, before its implementation, to audit their safety programs to ensure that they are not identified as repeat offenders under the program.
Employers should consider taking the following steps, among others, with counsel:
- Audit recent citations to ensure (1) that steps to abate those violations have been completed, and (2) that similar problems do not exist in facilities that were not inspected. Employers that adopt a multi-facility curative process for violations, rather than instituting a site-specific, temporary “fix,” may be less likely to receive further citations under the SVEP.
- Identify worksites with High-Emphasis Hazards and/or PSM hazards, and audit safety practices against OSHA’s NEPs in these areas. These areas of emphasis—from falls to combustible dust hazards—encompass a wide-ranging target group for OSHA enforcement moving forward. These are particularly vulnerable areas for employers, because the hazards themselves are often difficult to identify and abate from a safety perspective…