In the last few days, OSHA has announced three major enforcement efforts that impose heightened obligations upon employers. The first initiative, the Severe Violator Enforcement Program (SVEP), applies to employers who “have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” OSHA created the SVEP in response to scrutiny from Congress and the DOL Inspector General last year when they concluded that OSHA did not take sufficient enforcement measures against recalcitrant employers as required by the Enhanced Enforcement Program (EEP). OSHA has replaced the EEP with the SVEP to increase its enforcement efforts against employers who have demonstrated an “indifference” to workplace safety obligations in four areas: (1) fatality or catastrophe situations; (2) industries that expose employees to the most severe hazards, including those identified as “high-emphasis hazards”; (3) industries that expose employees to the potential release of highly hazardous chemicals; and (4) egregious enforcement actions.
Under the SVEP, an early draft of which was leaked a few months ago, OSHA will conduct follow-up and nationwide inspections to assess whether the violation identified in a citation occurs at other worksites or is part of a broader pattern of noncompliance in the company. OSHA will also pursue higher-profile enforcement by notifying company headquarters of site-specific issues and publishing press releases upon the issuance of citations. Finally, OSHA will seek enhanced settlement agreement provisions in any case under the SVEP, including: (1) requiring the employer to hire an independent safety and health consultant; (2) applying settlement agreements company-wide; (3) imposing interim abatement controls if final abatement cannot be accomplished in a short period; (4) requiring employers to notify OSHA of other jobsites prior to work starting at new construction sites; (5) requiring employers to report work-related injuries and illnesses on a quarterly basis and consent to inspections based on that data; and (6) requiring employers to report for a specific time period any serious injury or illness requiring medical attention, and to consent to inspections based on that data.
A second policy change is OSHA’s decision to alter its penalty classification scheme. OSHA believes that its penalties are too low to have an adequate deterrent effect. As a result, OSHA plans to expand the time frame it uses to consider an employer’s history of violations when determining penalty enhancement and reductions and when issuing repeat citations. OSHA plans to increase this period from three to five years. This change will likely increase the number of repeat violations and lower the chances that an employer will receive a penalty reduction based on OSHA history. Another notable change is the limitation on area directors’ settlement authority during the informal conference stage of a case. Under this new scheme, area directors will be limited to a 30% maximum penalty reduction for employers during an informal conference. To obtain any penalty reduction beyond this 30%, area directors will have to obtain approval from regional administrators. OSHA anticipates that the new penalty classification scheme will increase the overall dollar amount of penalties. For example, OSHA predicts the average penalty for a serious violation will increase from $1,000 to $3,000 to $4,000.
A third, somewhat longer range regulatory initiative is OSHA’s plan to initiate a rulemaking for an injury and illness prevention program rule that will require employers to “find and fix” hazards in their workplaces. The rule would contain three distinct parts requiring employers to plan, prevent, and protect employees from workplace injuries and illnesses. Under the rule, OSHA would require employers to create a plan for identifying and remedying risks associated with hazards and OSHA violations. Employers would have to take significant steps to implement the plan and cannot get by with drafting a plan but taking few steps to ensure implementation. Finally, employers will have to ensure that the plan’s objectives are met on a regular basis.