The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) adopted the Severe Violator Enforcement Program (SVEP) in 2010 to:
– Concentrate OSHA resources on inspecting employers who have demonstrated indifference to their Occupational Safety and Health Act (OSH Act) obligations by willful, repeated or failure-to-abate violations; and
– Replace OSHA’s Enhanced Enforcement Program (EEP).
Along with the SVEP, OSHA also announced its intention to increase civil penalty amounts. This Regulatory Update provides an overview of the SVEP and the planned increase in civil penalty amounts.
OVERVIEW OF THE SVEP AND INCREASED PENALTIES
SVEP Enforcement Instruction
The SVEP is intended to focus OSHA’s enforcement efforts on significant hazards and violations that endanger employees. The new program targets fall hazards, amputation dangers, combustible dust, exposure to silica, trenching/excavations and shipbuilding hazards. OSHA will concentrate inspection resources on employers who have demonstrated recalcitrance or indifference to their OSH Act obligations by committing willful, repeated or failure-to-abate violations in one or more of the following circumstances:
- A fatality or catastrophe situation;
- In industry operations or processes that expose employees to the most severe occupational hazards and those identified as “high-emphasis” hazards;
- Exposing employees to hazards related to the potential release of a highly hazardous chemical; or
- All egregious enforcement actions.
SVEP procedures are intended to increase attention on the correction of hazards found in these workplaces, including mandatory OSHA follow-up inspections and, where appropriate, in other nationwide worksites of the same employer where similar hazards and deficiencies may be present. It includes a more intense examination of an employer’s practices for systemic problems that would trigger additional mandatory inspections. This program applies to all employers regardless of size.
For a complete copy of OSHA SVEP enforcement instructions, see: http://www.osha.gov/dep/svep-directive.html
Revised Penalty Policies
Since the implementation of SVEP, OSHA has also reviewed its penalty policy and has updated the penalty section of its Field Operations Manual (FOM). In preparation, OSHA assembled a work group to evaluate its penalty policies and found that currently assessed penalties are too low to have an adequate deterrent effect. Based on the group’s findings and recommendations, OSHA made several administrative changes to the penalty calculation system outlined in the FOM. The adjustments took into account the:
- Appropriateness of the penalty with respect to the employer’s size;
- Gravity of the violation;
- Good faith of the employer; and
- History of previous violations.
According to OSHA, the penalty changes will increase the overall dollar amount of most penalties. The current maximum penalty for a serious violation, one capable of causing death or serious physical harm, is limited by law to only $7,000, and the maximum penalty for a willful violation is limited to $70,000. Though the administrative changes to penalties cannot exceed the current maximum penalties prescribed by law, the average penalty for a serious violation will increase from about $1,000 to an average of $3,000 to $4,000.
OSHA plans to focus on outreach in preparation for implementing its new administrative penalty policy. For more information on this penalty policy, visit www.osha.gov.
The OSH Act has been amended only once – nearly 20 years ago – since 1970 to increase penalties. The Protecting America’s Workers Act, presently making its way through Congress and favored by OSHA, would raise the maximum penalties to $12,000 and $250,000, respectively. Further, future penalty increases would be tied to inflation.
Employers of every size should ensure that workplace safety programs and practices are in compliance with OSHA standards and enforcement policies. The SVEP as well as the administrative changes to the penalty calculation system clearly demonstrate that OSHA is committed to increasing its enforcement efforts and maximizing the penalties that may be assessed upon violators. Odell Studner will monitor developments regarding these and other OSHA initiatives and will work to keep you informed.