OSHA’s Severe Violators Enforcement Program: How employers in the construction industry may be subject to the SVEP

The Severe Violator Enforcement Program (“SVEP”) was established in June 2010 to replace OSHA’s replacement to the Enhanced Enforcement Program (“EEP”) after a number of problems with the EEP were identified, including a failure to properly identify and inspect employers with reported fatalities. OSHA’s intended purpose of the SVEP is to focus efforts to remedy reoccurring issues on significant hazards and violations. This is done by increasing inspections and resources on employers who have shown an indifference to the standards set forth by OSHA. Employers demonstrate this behavior by committing willful, repeated, or failure-to-abate violations through one or more of the following situations:

A fatality or catastrophe situation;
Continuing industry operations or processes that expose employees to the most severe occupational hazards and identified “high-emphasis” hazards;
By exposing employees to hazards related to the potential release of a highly hazardous chemical; or
all egregious enforcement actions. Violations are deemed ‘egregious’ on a case-by-case basis.

To ensure that employers who face SVEP cases are properly recorded, The National Office will maintain a SVEP Log in which inspections that meet the SVEP criteria, or are SVEP-related inspections are logged as they are reported to the National Office by the Regional SVEP Coordinators. To clarify, SVEP-related inspections are typically follow-up inspections at other worksites of the same employer.

The SVEP contains separate provisions for construction cases to provide additional, more specialized enforcement. If an employer in the construction industry has a SVEP case, a further investigation will be conducted to investigate the employer’s compliance with OSHA. However, because worksites of construction employers are often difficult to locate, especially those of smaller construction employers, there are additional means that may be used to identify other worksites of the cited employer including the following:

If the severe violator enforcement case is resolved through a settlement, the agreement should require the employer to notify the Area Director of its other jobsites prior to when work starts at new construction sites during the following one-year period.
An administrative subpoena may be issued to an employer prior to the issuance of the citation to identify the location of worksites where employees of that employer are presently working or are expected to be working within the next 12 months.
A subpoena may be issued at any time during an inspection if it appears that the inspection is likely to result in a SVEP case and the inspection reveals hazards that the employer inadequately responded to. In this circumstance, a larger response by OSHA is necessary.
Whenever a subpoena is to be issued pursuant to the SVEP, the Regional Administrator shall coordinate with the Regional Solicitor.

If an employer wants to be taken off the SVEP Log, the employer may do so in two ways: “line-out” and “removal.” To “Line-Out” essentially means to remove an SVEP code removed from an establishment’s Internet Inspection Detail Summary. To do this, an Informal Settlement Agreement, Formal Settlement Agreement, or a court adjudication must be issued to delete or reclassify the citations so that the case no longer qualifies for the SVEP. Therefore, the case is “lined off” the Log. If the parties agree to a settlement, then the agreement can only delete or reclassify the citations from qualifying as a SVEP case if there are factual changes based on the quality of evidence brought forth during settlement discussions. Lining out is not removal. Instead, a lineout indicates that the employer should not have qualified for SVEP in the first place.

Removal is only available when an employer is firmly a severe violator. In this circumstance, removal only occurs when an SVEP case is removed for meeting certain criteria of good behavior as provided within the Removal Criteria for the Severe Violator Enforcement Program. The Directorate of Enforcement Programs (“DEP”) determined that an employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. To be eligible for removal, employers must have:

decreased all SVEP-related hazards affirmed as violations;
paid all final penalties;
abided by and completed all settlement provisions; and
not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

Approval of the employer’s removal will be at the discretion of the Regional Administrator or designee and shall be based on an additional follow-up inspection and IMIS/OIS data. In cases involving national corporate-wide settlement agreements, the DEP will make the determination, upon the termination of the agreement, regarding the employer’s removal from the program.

OSHA Legal Services for the Construction Industry

The construction industry faces unique challenges when it comes to safety and OSHA, given the ever-evolving nature of construction projects. We have the industry background and experience to help you face these challenges. Whether your goal is to prevent an OSHA inspection altogether, manage an inspection already underway, or evaluate OSHA citations received, we can help. Learn more here.