Yesterday, we reviewed controversy over the effectiveness of OSHA’s Severe Violator Enforcement Program (SVEP). Today, we explain how the SVEP enforcement process works.
OSHA says that the SVEP is intended to focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations relating to significant hazards.
In a white paper issued earlier this year, OSHA gives this brief overview of how an SVEP case proceeds through the enforcement process:
- An inspection becomes an SVEP case upon the issuance of qualifying citations. If the employer has more than one fixed site, the Area Director mails a copy of the citations to the employer’s headquarters.
- After issuance of the citation, there is a 15-day contest period during which the employer decides whether to contest the citations. During that time, the employer and OSHA may meet and agree to an Informal Settlement Agreement (ISA). OSHA may negotiate for enhanced provisions during both informal and formal settlement discussions.
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- The ISA may delete or reclassify the citations such that the case no longer qualifies for the SVEP. If this occurs, the case is lined off the SVEP Log. However, settlements can only result in lining off if there are factual changes based on the quality of evidence brought forth during settlement discussions.
- If the citations remain after the ISA, or if the employer accepts the citations upon initial notification, final orders are issued at the end of the 15-day contest period. The case is then eligible for a follow-up inspection.
- If, upon citation issuance, the citations are contested, the follow-up inspection is barred until the case is either adjudicated or settled (although related inspections—inspections of an employer’s other worksites triggered by a reasonable belief of systemic noncompliance—may occur at any point.
- If the contest concludes with deleted or reclassified citations such that the case no longer qualifies for the SVEP, the case is lined off the Log. If the citations remain, the case is eligible for a follow-up inspection
- Once a follow-up inspection is either conducted or attempted, the case remains on the SVEP Log but OSHA’s SVEP requirement to conduct a follow-up inspection is considered fulfilled.
- A follow-up inspection is required to be conducted in every SVEP case after citations become final orders. The follow-up inspection assesses not only whether the cited violations were abated, but also whether the employer continues to commit similar violations.
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