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September 2022: OSHA Expands Scope of Its Severe Violator Enforcement Program to Target Additional Employers

27 Sep

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Update Applicable to:
All employers.

What happened?
On September 15, 2022, the Occupational Safety and Health Administration (OSHA) published Directive Number CPL 02-00-169, a new instruction to its enforcement arm, updating policies and procedures for OSHA’s Severe Violator Enforcement Program (SVEP).

What are the details?
The SVEP focuses OSHA’s inspection resources on “employers that have demonstrated indifference to their OSH Act [Occupational Safety and Health Act] obligations by committing willful, repeated, or failure-to-abate violations” of the OSH Act. An employer placed in the SVEP is subject to:

(1) Enhanced penalties;
(2) A mandatory follow-up inspection within one year after a citation becomes final, regardless of whether the employer has verified abatement of the cited violation;
(3) Regional or nationwide inspection of the employer’s related workplaces and worksites if OSHA has “reasonable grounds to believe” those single-site violations “indicate a broader pattern of non-compliance”; and
(4) Publication of the employer’s SVEP status through news releases.

Significantly, under OSHA’s “multi-employer” citation policy, “an employer can qualify for SVEP even if none of its own employees were exposed to [SVEP-related] hazards.”

Under the previous instruction (CPL 02-00-149), in effect since 2010, OSHA placed an employer under the SVEP if an inspection met one or more of the below-mentioned criteria:

• OSHA issued at least one willful or repeated violation or a failure-to-abate notice based on a serious violation related to the death of one employee or the hospitalization of three or more employees.

• OSHA issued two or more willful or repeated violations or issued failure-to-abate notices related to high-emphasis hazards, such as falls, combustible dust, silica exposure, lead, and amputations.

• OSHA issued three or more willful or repeated violations or issued failure-to-abate notices for high-emphasis hazards related to the potential release of a highly hazardous chemical.

• OSHA issued an “egregious” violation. Under CPL 02-00-080, an employer is liable for an egregious violation when the employer has demonstrated:
(1) “persistently high rates” of worker illnesses/injuries or fatalities;
(2) “an extensive history of prior violations of the [OSH Act]”;
(3) intentional disregard for health and safety responsibilities; or
(4) “bad faith in the performance of … duties under the [OSH Act].”

OSHA determines SVEP status at the time citations are issued.

For more information, please see the links below:

Directive Number CPL 02-00-169

CPL 02-00-080

Severe Violator Enforcement Program (SVEP)

OSHA’s Recommended Practices for Safety and Health Programs

OSHA National News Release

Article

What do employers need to do?
Employers should review the links above, review this new directive carefully, and educate their management to be aware of the instructions.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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