DOL Expands Enforcement Program Criteria

WEDNESDAY, SEPTEMBER 28, 2022


The U.S. Department of Labor recently announced that it was expanding the criteria for placement in the Occupational Safety and Health Administration's Severe Violator Enforcement Program (SVEP).

According to Assistant Secretary for Occupational Safety and Health Doug Parker, the changes are meant to strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses. The updated program specifically focuses on employers who repeatedly disregard workers’ health and safety.

Enforcement Program Background

First introduced in June 2010, the SVEP concentrates OSHA’s resources on inspecting employers who either willfully or repeatedly violate federal health and safety laws or demonstrate a refusal to correct previous violations.

In addition to being included on a public list of the nation's severe violators, employers are subject to follow-up inspections.

OSHA considers an inspection to result in a SVEP case if it meets at least one of the criteria below. All OSHA standards are applicable to SVEP:

  • Fatality/Catastrophe Criterion: A fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death, or to an incident causing three or more employee hospitalizations;
  • Non-Fatality/Catastrophe Criterion: An inspection where OSHA finds at least two willful or repeated violations or issues failure-to-abate notices (or any combination of these violations/notices), based on the presence of high gravity serious violations. NOTE: Low and moderate gravity serious violations do not fulfill this criterion; and
  • Egregious Criterion: All egregious (e.g., per-instance citations) enforcement actions shall be considered SVEP cases.

Since its inception, the SVEP has also worked to ensure a continued update of enforcement policies and procedures.

Program Updates

According to the DOL, the new criteria for the SVEP now include violations of all hazards and OSHA standards. The program is also continuing to focus on repeat offenders in all industries.

Previously, an employer could be in the program for failing to meet a limited number of standards. The changes will broaden the program's scope with the possibility that additional industries will fall within its parameters.

“The Severe Violator Enforcement Program 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,” said Parker.

“Today'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.”

Specifically, the updated criteria include the following:

  • Program placement for employers with citations for at least two willful or repeated violations or who receive failure-to-abate notices based on the presence of high-gravity serious violations; 
  • Follow-up or referral inspections made one year – but not longer than two years – after the final order;
  • Potential removal from the Severe Violator Enforcement Program three years after the date of receiving verification that the employer has abated all program-related hazards. In the past, removal could occur three years after the final order date; and
  • Employers' ability to reduce time spent in the program to two years, if they consent to an enhanced settlement agreement that includes use of a safety and health management system with seven basic elements in OSHA's Recommended Practices for Safety and Health Programs.

The updated program instruction replaces the 2010 instruction and will remain in effect until canceled or superseded.

Other Recent Actions

Several weeks ago, OSHA was reported to have launched a new initiative to conduct safety investigations on weekends in select counties in Colorado’s Front Range, Montana and South Dakota.

The inspections are slated to take place in Arapahoe, Douglas, Jefferson, El Paso, Adams, Boulder, Broomfield, Denver, Larimer and Weld counties in Colorado; Yellowstone, Carbon and Stillwater counties in Montana; and Minnehaha, Lincoln, Brookings, Pennington and Union counties in South Dakota.

The new inspection initiative was created to target one of the construction industry’s most dangerous hazards: falls from elevation.

Since 2017, OSHA reports that the Administration has investigated 10 fatalities and numerous serious construction-related fall injuries in these areas. In 2021, the Bureau of Labor Statistics reported that falls from elevation led to 351 of the 1,008 deaths among construction workers.

“OSHA's Weekend Work initiative will identify and address construction-related fall hazards on weekends, when many employers typically do not monitor their job sites well,” said OSHA Regional Administrator Jennifer Rous in Denver, at the time.

“Our proactive approach will identify hazardous worksites, ensure that workers are protected from needless injuries or worse, and help ensure employers provide a safe and healthful workplace.”

In March, OSHA published a proposed rule aimed at improving the process of reporting workplace injuries and illnesses.

According to OSHA, if adopted, the new rule would require:

  • Establishments with 20 or more employees, in certain high-hazard industries, to continue to electronically submit Form 300A Annual Summary information once a year to OSHA; and
  • Establishments with 100 or more employees in the highest-hazard industries to submit Form 300 Log and Form 301 Incident Report information once a year to OSHA. These establishments would continue to be required to electronically submit information from their Form 300A Annual Summary.

Additionally, establishments with 250 or more employees, not in designated high-hazard industries, would no longer be required to electronically submit recordkeeping information to OSHA.

Through electronic submission of establishment-specific and case-specific information outlined in Forms 300 and 301, OSHA will be better equipped to utilize its resources more effectively, according to the Agency.

The changes would also help OSHA to identify workplaces where workers are at greatest risk from specific hazards and to target its compliance assistance and enforcement efforts accordingly, which would ultimately improve research on occupational safety and health.

The electronic submissions are also expected to improve employers’ ability to compare their own injury and illness data on hazards with the data from similar establishments in the same industry. And, for stakeholders, OSHA believes the change will help to make more informed decisions.

Improve Tracking of Workplace Injuries and Illnesses was published on March 30.

Last year, amidst COVID-19 cases, OSHA launched a national emphasis program focusing on enforcement efforts on companies that put the largest number of workers at risk of contracting the virus.

The program was the Department’s response to President Joe Biden’s executive order on worker health and safety.

According to OSHA, NEP inspections enhance the agency’s previous COVID-19 enforcement efforts and include some follow-up inspections of worksites inspected in 2020. The program includes monitoring the effectiveness of OSHA’s enforcement and guidance efforts and will remain in effect for up to one year from its issuance date, though OSHA has the flexibility to amend or cancel the program as the pandemic subsides.

Though this isn’t a state requirement, OSHA “strongly encourages” states to adopt the NEP. States must notify federal OSHA within 60 days.

Additionally, in a related action, OSHA has updated its Interim Enforcement Response Plan to prioritize the use of “on-site workplace inspections where practical, or a combination of on-site and remote methods.” OSHA says that it will use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.

   

Tagged categories: Department of Labor; Enforcement; Good Technical Practice; Government; Health & Safety; Health and safety; NA; North America; OSHA; OSHA; Regulations; Safety; Workers

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