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The Occupational Safety and Health Administration (OSHA) is stepping up enforcement. On September 16, 2022, the U.S. Department of Labor (DOL) announced expanded criteria for placement in the OSHA Severe Violator Enforcement Program (SVEP) to strengthen enforcement, improve compliance with workplace safety standards (i.e., OSH Act), and reduce worker injuries and illnesses.
SVEP: Then and Now
The expanded criteria build off the original SVEP, which was first introduced on June 18, 2010, to focus OSHA’s resources on inspecting employers who continually expose workers to very serious dangers, even after being cited for them. This includes employers who have demonstrated indifference to OSH Act obligations by either “willfully or repeatedly violating federal health and safety laws or demonstrating refusal to correct previous violations” (i.e., failure to abate).
The changes enacted by OSHA in September 2022 are intended to broaden the SVEP’s scope and maximize the tools available to ensure employers comply with their legal obligation to provide safe and healthful workplaces. The new instructions “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,” explains Doug Parker, Assistant Secretary of Labor for Occupational Safety and Health. He reinforces, “These changes to SVEP will hold a microscope to those employers who continue to expose workers to very serious dangers.”
This goes hand-in-hand with the Biden Administration’s recent efforts to make significant improvements in workplace safety protection for American workers through proposed increases in funding and significant increases to OSHA’s maximum penalties, as proposed in the original Build Back Better Act.
The table below outlines how the SVEP criteria are changing from 2010 to 2022.
|THEN: SVEP 2010||NOW: SVEP 2022|
|Limited to cases involving fatalities, three or more hospitalizations, high-emphasis hazards, the potential release of a highly hazardous chemical (PSM), and enforcement actions classified as egregious.||Expands program criteria to include all hazards and OSHA standards, broadening the program’s scope and potential for additional industries to fall within its parameters.|
|Focused on cases where there was a willful or repeated serious violation or a hazard the employer failed to abate that was directly related to either an employee death or an incident that caused three or more hospitalizations.||Focuses on program placement for employers with citations for at least two willful or repeated violations or who receive failure-to-abate notices based on the significance of serious violations.|
|Required no designated timeframe in which OSHA would conduct a follow-up inspection after the final order.||Requires follow-up or referral inspections to be conducted one year (but no longer than two years) after the final order.|
|Permitted removal from the SVEP three years after the final order date.||Allows for potential removal from the SVEP three years after the date of receiving verification that the employer has:|
· Abated all SVEP-related hazards.
· Paid all final penalties.
· Where applicable, followed and completed all applicable settlement provisions.
· Received no additional serious citations related to the hazards identified in the original SVEP inspection or any related establishments.
· Received one follow-up or referral OSHA inspection.
|Only allowed employers to become eligible for removal from SVEP after three years.||Enables employers to reduce time spent in the SVEP to two years if they consent to an enhanced settlement agreement that includes use of a safety and health management system (SHMS).|
The final two updates included in the table above are intended to incentivize employers to fix problems quickly with solutions that ultimately work to transform the health and safety culture. The new SVEP instructions also add sample documents and guidance for specific situations to assist companies in complying.
Implementing a SHMS
Developing and implementing an SHMS is one of the best ways to help ensure a company does not end up in the SVEP. As stated in the table above, it is also a requirement for early removal from the SVEP. That is because a properly structured SHMS will get the processes, programs, and systems in place—and documented—to ensure the company is protecting employee safety and health and meeting OSH Act requirements.
OSHA requires the SHMS include the following Core Elements of the Safety and Health Program Recommended Practices:
- Management Leadership: Top management demonstrates a commitment to continuous improvement in safety and health, communicates that commitment to workers, provides adequate resources and support, and sets program expectations and responsibilities.
- Worker Participation: Workers understand their responsibilities and are involved in all aspects of the safety and health program, including setting goals, identifying reporting hazards, investigating incidents, communicating with management, and tracking progress.
- Hazard Identification and Assessment: Procedures are in place to continually identify workplace hazards and evaluate risks. Initial assessment of existing hazards, exposures, and control measures is followed by periodic inspections to identify new hazards; any incidents are also investigated to identify root causes.
- Hazard Prevention and Control: Employer and employees cooperate to identify and select methods for eliminating, preventing, or controlling workplace hazards according to the hierarchy of controls: engineering solutions, safe work practices, administrative controls, and personal protective equipment (PPE).
- Education and Training: Workers are trained to understand how the safety and health program works, how to recognize workplace hazards, and how to carry out their responsibilities under the program.
- Program Evaluation and Improvement: Processes are established to evaluate control measures for effectiveness, monitor program performance, verify program implementation, and identify opportunities to improve overall health and safety performance.
- Communication and Coordination for Host Employers, Contractors, and Staffing Agencies: Hosts commit to providing the same level of health and safety protection to all employees, communicating hazards present at the worksite, and resolving any conflicts that could impact safety or health.
Based on the plan-do-check-act cycle of continuous improvement, the SHMS should also include provisions for continually evaluating and improving program effectiveness and for OSHA’s review and evaluation. Finally, implementation must be verified by an independent third party (CSP, CIH, national union safety and health representative) subject to OSHA’s approval.
As usual, the best way to get ready for the increased enforcement is to understand the regulations and be prepared.