OSHA’s Directive Targeting Severe Violators


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

The Occupational Safety and Health Administration (OSHA) has adopted a Severe Violator Enforcement Program (SVEP) effective as of June 18, 2010.

In this Directive Program, OSHA intends to consider an employer a Severe Violator if an inspection results in the issuance of one or more Willful or Repeated Citations, or Failure to Abate notices based on a Serious violation related to:

a. Fatality/Catastrophe.  The death of an employee, or three or more hospitalizations, or

b. Non Fatality/High Emphasis Hazard Violations. The  employer received two or more Willful Citations in an inspection, or Failure to Abate notices, or any combination of those, based on a High Gravity Serious violation which is related to what is called a high emphasis hazard. A high emphasis hazard is defined as Fall protection in General Industry, Construction, shipyard, maritime terminal, or longshoring, OSHA’s National Emphasis Program on amputations, combustible dust, crystalline silica, lead, or ship building; or OSHA’s Special Emphasis Program on excavation and trenching hazards. The gravity of a violation is determined on the basis of the severity of the injury or illness that could result from a violation, as well as the probability that such an injury or illness could occur, as described in OSHA’s Field Operations Manual, or

c. Non Fatality/Potential Release of Hazardous Chemicals (Process Safety Management).  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, as defined in the PSM standard, or

d. Egregious Citations.  All egregious (e.g., per-instance) citations will be considered SVEP cases.

Once an employer is classified as a Severe Violator, the Directive then calls for the following:

a. Mandatory follow-up inspections.  With few exceptions, a worksite must be re-inspected, even if abatement of the alleged violation has occurred, not only to confirm abatement but to look for other violations.

b. Nationwide inspections of similar worksites.  The employer’s operations throughout the U.S. are to be inspected for those classified as SVEPs whenever OSHA believes there are “reasonable grounds” for believing similar violations exist. Subsidiaries, affiliates, and joint employers of the SVEP employer are to be included in these inspections. If a Regional Administrator of OSHA finds that additional worksites within the region should be inspected, and the employer has three or fewer similar related worksites, they must all be inspected. Normally, all worksites will be inspected if there are ten or fewer. If an employer has more than ten worksites, then a random sampling of worksites to be inspected would be utilized. The Program also calls for mandated follow-up inspections to insure that cited violations were, in fact, abated.

Citations against Employers classified as SVEPs will be sent to that Employer’s national headquarters as well as to Unions representing employees of that Employer. OSHA may call for a meeting amongst OSHA, Company officials and their employees’ unions to address how the Company will address OSHA’s safety concerns.

SVEP employers could be required to hire safety and health consultants, apply settlement agreements on a company-wide basis, report work-related injuries and illnesses every quarter rather than annually as is the present case, and consent to follow up inspections based on that report.

The Severe Violator Enforcement Program certainly does suggest to employers that OSHA intends to take a more aggressive approach to enforcement. Employers would be well-advised to redouble their efforts to insure compliance with applicable safety requirements and, most particularly, to maintain up-to-date training programs to insure employees comply with safe practices. If you would like to read a copy of this OSHA Directive, the url address is http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4503.

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