Enforcement and Inspection

Cracking Down on “Indifferent Employers”: How OSHA Identifies Severe Violators

At Lauren Manufacturing in New Philadelphia, Ohio, an employee accidentally sliced off her own finger as she was cutting rubber material using a bench cutter. An Occupational Safety and Health Administration (OSHA) investigation showed that it was the second debilitating injury at the plant in 18 months, and it identified four repeat violations of OSHA standards. Not only was the employer cited for six serious and four repeat violations, they were also placed in OSHA’s Severe Violator Enforcement Program.

Here’s how OSHA determines whether an employer is a “severe violator,” and what it means for the employer if it does.

Identifying “Indifferent Employers”

The Severe Violator Enforcement Program (SVEP), which was created in 2010, is an enforcement initiative that enables OSHA to concentrate time and resources on employers that the agency identifies as indifferent to their obligation to protect workers from occupational hazards. Employers that are cited for willful, repeated, or failure-to-abate violations of specific OSHA standards may be identified as “indifferent.”

The SVEP replaces an earlier program, the Enhanced Enforcement Program (EEP). It has a narrower focus, but a broader reach, than the EEP. It targets “high emphasis hazards”—that is, fall hazards and hazards that are covered in selected National Emphasis Programs. At the present time, that list includes:

  • Fall hazards in all industries
  • Amputation hazards
  • Combustible dust hazards
  • Crystalline silica hazards
  • Lead hazards
  • Excavation/trenching hazards
  • Shipbreaking hazards

Employers whose workers are exposed to hazards in any of these categories may be at risk of being placed in the SVEP. The list does change periodically; at one time, employers whose workers were exposed to noise hazards were liable to be identified as “severe violators.”

However, if an employer was cited for willful, repeated, or failure-to-abate violations that resulted in a fatality or catastrophe, or if the employer was cited for egregious violations, the employer may be placed in the SVEP regardless of whether the violations were related to high-emphasis hazards.

Stricter Settlement Agreements

When an employer is cited by OSHA, the employer will eventually have to enter into a “settlement agreement,” in which OSHA and the employer agree on how the employer will address the cited violations (unless, that is, the employer appeals and all citations are dismissed). Generally, OSHA’s settlement provisions center on the employer’s abatement plans and intentions. However, in the case of severe violators, OSHA may insist on much greater commitments from the employer, including:

  • Hiring a safety consultant. OSHA may stipulate in a settlement order that the employer will hire a qualified safety and health consultant to develop and implement either an effective and comprehensive safety and health program or, a program that will ensure full compliance with a specific OSHA standard.
  • A corporatewide settlement agreement, in which the entire company agrees to abate identified hazards at all locations.
  • Interim abatement controls. If OSHA does not believe that final abatement can be accomplished quickly, it may also require interim measures as part of the settlement agreement.
  • Multisite commitments in construction. In construction (and in general industry, if applicable), OSHA may request a list of the employer’s current jobsites, or future jobsites, within a specified time period as part of the settlement agreement. The settlement agreement will include a specific protective measure to be used at each current or future jobsite.
  • Quarterly reporting. OSHA may require the employer to submit its Log of Work-related Injuries and Illnesses on a quarterly basis and to consent to OSHA conducting an inspection based on the information.
  • Expanded injury and illness reporting. OSHA may require the employer to report any serious injury or illness requiring medical attention and to consent to an inspection based on the information.
  • Court enforcement order. OSHA may require the employer to consent to the entry of a court enforcement order.

Tomorrow we’ll look at the increased scrutiny that OSHA applies to employers that are placed in the SVEP.