OSHA Enacts SVEP, Severe Violator Enforcement Program – Violators Could Face Nationwide Inspections of All Workplaces

OSHA announced today that the Severe Violator Enforcement Program (SVEP) went into effect on June 18, 2010. SVEP is intended to concentrate OSHA resources on inspecting employers who have “demonstrated indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.”

It replaces OSHA’s Enhanced Enforcement Program (EEP) which the Department of Labor’s Office of Inspector General (IG) was highly critical of in a report dated March 31, 2009.

Occupational Health & Safety’s website detailed the IG’s findings in an April 2009 article saying the report found “EEP was mismanaged so badly that OSHA did not comply with EEP's requirements for 97 percent of sampled cases qualifying for it. No appropriate enforcement action was taken in 29 cases, the IG found -- and those employers subsequently experienced 20 fatalities, of which 14 deaths shared similar violations, the report states.’

According to SVEP Instructions, OSHA is focusing on employer indifference for four types of cases:

  1. A fatality or catastrophe situation
  2. In industry operations or processes that expose employees to the most severe occupational hazards and those identified as "High-Emphasis Hazards"
  3. Exposing employees to hazards related to the potential release of a highly hazardous chemical
  4. All egregious enforcement actions

Significant enforcement changes employers should be aware of as OSHA moves from EEP to SVEP include the following:

  • Mandatory follow-up inspections for SVEP cases
  • Focus on High-Emphasis Hazards identified from the NEP (National Emphasis Program: (e.g. fall hazards, amputations, combustible dust, crystalline silica, excavating/trenching, lead, and shipbreaking.)
  • Implementation of a nationwide referral procedure in which OSHA may inspect related worksites and workplaces of a SVEP employer
  • Public identification of employers that are part of SVEP

Employers should pay special attention to the third item on the list, the new referral procedure, as SVEP signals OSHA’s commitment to identifying patterns of non-compliance at related employer worksites. Employers with serious violations could find every one of their workplaces on OSHA’s inspection list.

Employers falling under SVEP may face additional questions from OSHA to determine the extent of compliance problems. The list of questions OSHA may pursue is included in the SVEP instruction sheet and together they provide a kind of roadmap for employers looking to stay off of OSHA’s radar.

  • Are violative conditions a result of a company decision or interpretation concerning a standard or hazardous condition? Have corporate safety personnel addressed the standard or condition? Ask the following types of questions of the plant manager, safety and health personnel and line employees.
  • Who made the decision concerning the violative operation, local management or company headquarters? Was the decision meant to apply to other facilities of the employer as well? If the decision was from company headquarters, what is their explanation?
  • Is there a written company-wide safety program? If so, does it address this issue? If so, how is the issue addressed?
  • Is there a company-wide safety department? If so, who are they and where are they located? How does company headquarters communicate with facilities/worksites? Are establishment/worksite management and safety and health personnel trained by the company?
  • Do personnel from company headquarters visit facilities/worksites? Are visits on a regular or irregular basis? What subjects are covered during visits? Are there audits of safety and health conditions? Were the types of violative conditions being cited discussed during corporate visits?
  • Are there insurance company or contractor safety and health audit reports that have been ignored? Are headquarters safety and health personnel aware of the reports and the inaction?
  • Does the company have facilities or worksites other than the one being inspected that do similar or substantially similar work, use similar processes or equipment, or produce like products? If so, where are they?
  • What is the overall company attitude concerning safety and health? Does the establishment or worksite receive good support from company headquarters on safety and health matters?
  • Does the company provide appropriate safety and health training to its employees?
  • Ask whether the establishment's/worksite's overall condition is better or worse at present compared to past years? If it is worse, ask why? Has new management or ownership stressed production over safety and health? Is the equipment outdated or in very poor condition? Does management allege that stressed financial conditions keep it from addressing safety and health issues?
  • Is there an active and adequately funded maintenance department? Have they identified these problems and tried to fix them?
  • Has the management person being interviewed worked at or visited other similar facilities or worksites owned by the company? How was this issue being treated there?