OSHA Enforcement Update - New Severe Violator Program and Selected Workplaces Targeted

OSHA Enforcement Update – New Severe Violator Enforcement Program

And Selected Workplaces Targeted

OSHA Announces New Severe Violator Enforcement Program

On April 22, 2010, the Occupational Safety and Health Administration (OSHA) announced the creation of a new Severe Violator Enforcement Program (SVEP). SVEP abrogates OSHA’s Enhanced Enforcement Program and “concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” SVEP considers any OSHA inspection that meets one or more of the criteria below a severe violator enforcement case:

A. A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated violations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations.

B. An inspection in which OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to a high-emphasis hazard.

C. An inspection in which OSHA finds three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high gravity serious violations related to hazards due to the potential release of a highly hazardous chemical.

D. All egregious enforcement actions.

If a case meets one of the SVEP criteria, OSHA must conduct a follow-up inspection to confirm that the cited violations were abated and to ensure that the employer is not committing similar violations. When there are reasonable grounds to believe that an OSHA violation may indicate a “broader pattern of non-compliance,” OSHA will investigate the employer’s related worksites as part of a nationwide inspection. Related worksites include “corporations that are in the same corporate family, including subsidiary, affiliate, or parent corporations with substantial common ownership.”

The SVEP provisions also increase awareness of SVEP cases by requiring the Area Director to mail a copy of the Citations and Notifications of Penalty to the employer’s national headquarters and to employee representatives (e.g., unions). In addition, OSHA regional offices must issue news releases when a SVEP case results in a nationwide referral inspection, and regional offices may issue news releases based on other SVEP violations. OSHA must also consider enhanced settlement provisions for employers that receive SVEP violations that require employers, among other measures, to report more frequently to OSHA and to hire consultants to develop effective safety programs.

States must adopt the SVEP program or establish equivalent SVEP programs within six months of April 22, 2010.

To view OSHA’s SVEP Instruction, click on the following link: http://www.osha.gov/dep/svep-directive.pdf.

OSHA Targets Workplaces With Higher Than Average Rates Of Injury And Illness

In March 2010, OSHA announced letters had been sent to approximately 15,000 workplaces that were identified as having very high workplace injuries and illnesses based upon surveys collected by OSHA, which measured the “Days Away from Work, Restricted, or Transferred” (DART) rate. As a result, OSHA has the ability to target up to 4,500 workplaces identified by the surveys for an inspection.

The purpose of the letters is to put the employers on notice that their workplaces had higher than average workplace injuries and illnesses and to encourage employers to take immediate action to provide a safe and injury- and illness-free workplace. Each letter was accompanied by the workplace’s injury and illness data, frequently cited OSHA standards for the workplace’s industry and suggestions for lowering workplace injuries and illnesses (i.e. hiring an outside safety and health consultant, talking with an insurance carrier or contacting the workplace’s state workers’ compensation agency for advice).

OSHA offers a free and confidential consultation program, which is administered by a state agency and operated independently from OSHA’s enforcement program, for employers with 250 or fewer workers to assist with providing healthy and safe workplaces.

A complete list of the workplaces that received the letter is available at http://www.osha.gov/as/opa/foia/hot_16.html.