By: Thomas H. Welby Published: September 2015

OSHA's Severe Violator Enforcement Program

Construction is not the most dangerous occupation in America.  In terms of fatalities per 100,000 workers, it trails, among others, fishing, logging, flying aircraft, farming, mining, truck driving, and refuse/recycling collection. Nonfatal injuries and illnesses among health care workers far outnumber those in construction, as health care today employs more people in the U.S. than construction or manufacturing.

Nonetheless, construction accounts for approximately 20% of all private-sector, job-related fatalities annually, and remains a top priority for OSHA enforcement efforts.

While certainly important, avoiding OSHA citations is not the #1 priority of your company’s safety program, which is — or ought to be — doing everything practicable to minimize the number of serious injuries and fatalities at your jobsites.  That said, the nature of large-scale construction and the multi-employer worksite, and the characteristics of the construction workforce are such, that cutting OSHA violations, and the risk of injury to zero, is probably not an achievable goal.

If you haven’t seen an OSHA inspector recently, changes are good that you will see one soon.  Chances are high, also, that you will be cited occasionally for “Serious” infractions.  Taken singly, such violations are not calamitous, as the maximum monetary penalty for an individual “Serious” citation is $7,000.00.

However, when you accumulate more than one or two “Serious” violations within a 3-5 year period, or get into the zone of “Repeat” or “Willful” violations, the penalties increase to up to $70,000.00 per item, and the potential adverse consequences for your business increase correspondingly.  Companies with too many OSHA violations may be debarred from public contracting; and, increasingly, private owners and construction managers are shunning such companies as well.  A bad record with OSHA, in other words, will harm your company’s competitive standing, and may put you out of business.

In this series, we have often reiterated the importance of training to avoid  hazards that account for large numbers of deaths and serious injuries.  Falls are the leading cause of construction fatalities, and the #1 subject of OSHA citations nationwide.  Other leading causes of death in construction are “struck by” hazards, electrocutions (notably, inattention to live wires) and “caught in/between” hazards, notably excavation cave-ins.

We have often mentioned, too, the necessity to exert leadership “from the top” in your company’s safety efforts, and to employ well-trained supervisory personnel who take safety seriously, and are not lax in enforcing safety rules.

An additional priority is that your company and its personnel see its relationship with OSHA as a vital, long-term, and potentially beneficial one.  It’s easy to see OSHA as an annoyance, or even an adversary:  it issues citations and penalties, and, like most government agencies, behaves in an arbitrary fashion from time to time.

Nevertheless, the wiser approach is to recognize that, as long as you remain in business, you will be dealing with OSHA year after year.  A violation may involve paying a monetary penalty, but it’s also an occasion to re-examine your safety program, to urge your supervisors and other employees to pay more attention, and to demonstrate to OSHA that you acknowledge the importance of occupational safety and health, and will redouble your compliance efforts going forward.

One OSHA program you may be unfamiliar with — and should strive not to become involved with first-hand — is the “Severe Violator Enforcement Program” (SVEP).  Established in 2010 as an enhanced successor to the former “Enhanced Enforcement Program,” SVEP targets employers who have demonstrated indifference to their obligations under the OSH Act, by committing willful, repeated, or failure-to-abate viola­tions.  Enforce­ment actions for severe violator cases include mandatory follow-up inspections, increased employer awareness of OSHA enforcement, corporate-wide agreements, enhanced settlement provisions, and federal court enforcement under Section 11(b) of the OSH Act.

In addition, SVEP includes procedures for nationwide referrals, including states that fall not under federal OSHA (as do New York, Connecticut and New Jersey) but have their own, state-administered “little OSHA” plans.  Under these procedures, OSHA may inspect related worksites of an SVEP employer.

Among innovations under SVEP are that it defines “High-Emphasis Hazards,” and provides that inspections of the following kinds will be subject to SVEP enforcement:

  • “Fatality/catastrophe” in­spec­­tions, in which OSHA finds at least one willful, repeated, or failure-to-abate violation, based on an underlying “Serious” viola­tion, and related to the death of an employee, or three or more hospitaliza­tions.  Violations under this criterion do not need to be “High-Emphasis Hazards;”
  • An inspection in which OSHA finds two or more willful, repeated, or failure-to-abate violations, based on “high gravity serious” violations related to a “High Emphasis Hazard,” as defined below; or
  • An inspection in which OSHA finds three or more willful, repeated, or failure-to-abate violations, related to the potential release of certain highly hazardous chemicals.

For purposes of SVEP, “High Emphasis Hazards” include an array of fall hazards (construction and other), and hazards relating to potential amputations, combustible dust, crystalline silica, lead, excavations and trenches, and shipbreaking hazards.

When the Area Director determines that a case meets any of the SVEP criteria, a number of things may happen, according to the facts of the particular case.  Notably, if practicable, there will be a mandatory follow-up inspection, to assess not only whether the cited violations have been abated, but also whether the employer is committing other, similar violations. Where an overexposure-to-silica violation has been found, even where the case has not been designated as an SVEP case, a mandatory follow-up inspection will be held, and if that inspection finds the same or similar violations, the follow-up inspection will probably qualify as an SVEP case.

Where an employer coming under SVEP has additional, similar related workplaces, within an OSHA region or elsewhere, such workplaces may be inspected, focusing mainly on the same or similar hazards as those found in the original case.

Citations may be sent to the employer’s national headquarters (where the employer has more than one fixed establishment) and to the relevant unions, and Regional Offices may issue news releases for all SVEP cases.  Letters to corporate officers, and meetings including OSHA, company officials, employees and unions, are additional measures that may be employed to increase employer awareness of the gravity of its OSHA record.

Enhanced settlement provisions are also envisaged, to ensure future compliance, both at the cited workplace and other related employer facilities.  Among other things, employers may be pressed to agree to hire a qualified safety and health consultant, to submit logs of work-related illnesses and injuries on a quarterly basis, and to implement the settlement agreement company-wide.

Since SVEP, at best, will cost you time and money, and at worst could be a death sentence for your business, certainly you should make all efforts to avoid it.  If you find yourself subject to SVEP, that should be an urgent wake-up call that you need to do better in terms of OSHA compliance.

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