OSHA Update: OSHA Announces “Severe Violator Enforcement Program” and Increased Penalties

by Rod Smith and Pat Miller

As part of its overall effort to get tough on enforcement, OSHA recently announced the implementation of its new "Severe Violator Enforcement Program" or "SVEP."  Effective within the next 45 days, this Program "is intended to focus OSHA enforcement resources on recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law."  Though SVEP is billed as a new and improved Enhanced Enforcement Program ("EEP"), which OSHA has utilized in the past, it is clearly more expansive and punitive.  Employers can fall under the Program in numerous ways, including:

• a fatality or catastrophic accident where one or more willful or repeated violations are alleged;
• an investigation resulting in two or more willful or repeated violations related to "High-emphasis hazards."  "High-emphasis hazards" are those covered under OSHA's National Emphasis Programs such as falls, amputations, combustible dust and excavation hazards, among others.
• an investigation resulting in three or more willful or repeated violations related to the release of a highly hazardous chemical under OSHA's Process Safety Management standard; or
• an investigation resulting in "egregious," or per-instance, citations. 

Employers are designated for SVEP treatment when the citations are issued, before the employer even has a chance to contest, settle, or have a judge rule on the validity of the citations. 

The consequences of being on OSHA's "SVEP List" are significant.  Under SVEP, employers will be subjected to enhanced follow-up inspections, not only at the worksite in question, but at any related worksite nationwide.  In the Program, OSHA instructs its compliance officers to ask questions to elicit information about the company's entire operation.  SVEP also calls for the issuing of press releases when citations are issued, and the sending of letters to corporate officers.  Dr. David Michaels, the Deputy Secretary of Labor for OSHA, stated in a press release announcing that the SVEP program will "include a more intense examination of an employer's practices for systemic problems that would trigger additional mandatory inspections."

In addition to SVEP, OSHA also announced a revision of its internal guidelines to increase proposed penalties.  In an April 22, 2010 Memorandum addressed to OSHA's Regional Administrators, Dr. Michaels directed OSHA to: 

• expand the period of time that OSHA looks at with respect to an employer's compliance history;
• increase the period for repeat violations from three to five years
• prohibit grouping citations involving high-gravity serious violations, and
• remove an Area Director's ability to reduce a proposed penalty by more than 30 percent at an informal settlement hearing.  Under the new guidelines, OSHA predicts that the average penalty for a serious violation will increase from about $1,000 to an average of $3,000 to $4,000. 

The increased penalties are to be effective "in the next several months."  The practical effects of OSHA's SVEP and penalty increases will impact all employers, regardless of their OSHA history or efforts to safeguard their employees. Employers can now expect increased penalties, less flexibility in settling citations, and more intense scrutiny from OSHA.  More than ever, an employer's good record, especially when it comes to repeat and willful violations, will play a significant role in avoiding OSHA liability..  Employers are urged to remain diligent in protecting their rights during an OSHA inspection and to avoid acceptance of unjustified citations, penalties and classifications.  Particularly in cases involving SVEP designation, employers should strongly consider contesting the citations.  This is especially important because of the increased risk of repeat citations as well as mandatory follow-up inspections.   

To view the SVEP, go to www.osha.gov/dep/svep-directive.pdf.  To review Dr. Michaels' Memorandum, go to www.osha.gov/dep/penalty-change-memo.pdf     

Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group.