Background
Federal OSHA (“Fed OSHA”) has long had a Severe Violators Enforcement Program (“SVEP”), intended to target employers who demonstrate “indifference to their OSH Act obligations by willful, repeated, or failure-to-abate violations.” Until recently, many states maintaining their own OSHA plans, so called “State Plan” states, have resisted enforcement of an SVEP program in their own jurisdictions. In October 2022, NV OSHA signaled its intention to implement and enforce an SVEP program into its own state plan.
The Nevada SVEP program is identical to that of Fed OSHA, including the requirement that employers placed in the SVEP program have their names published to the public, and are listed in a NV OSHA tracking document as a severe violator.
Being Added to the SVEP Program
NV OSHA has published a list of circumstances which will cause employers to be branded as severe violators. These include citations issued related to a Fatality/Catastrophe (“FAT/CAT”), or inspections totally unrelated to FAT/CAT incidents.
- FAT/CAT Criteria - A FAT/CAT inspection where a citation is issued for at least one willful or repeat violation, or where NV OSHA issues a failure-to-abate notice based on a serious violation directly related to an employee death, or to an incident causing three or more employee hospitalizations.
- The Non FAT/CAT Criteria – Any inspection resulting in at least two willful or repeat violations; any inspection where NV OSHA issues failure-to-abate notices based on the presence of high gravity serious violations.
Employers are added to the SVEP at the issuance of a citation, meaning employers may be subject to the penalties of the SVEP program even if the employer contests the alleged citation and before the citation even becomes a final order.
Penalties of the SVEP Program
Besides possible significant business ramifications, the primary penalty associated with the SVEP program is publication – the employer’s name being maintained and published on the official NV OSHA tracking log. In addition, employers are subject to additional mandatory inspections by NV OSHA.
While not discussed in any official OSHA literature, employers subjected to the Fed OSHA SVEP program report harsher monetary penalties for citations, and an unwillingness by OSHA to make settlement deals.
Getting Out of the SVEP
Getting removed from the SVEP program is difficult. Employers are not eligible for removal from SVEP until three years after abatement of a violation is completed; the date of the final order is not relevant. Nevada’s guidelines do not specify what steps must be taken to be removed from the SVEP, only that employers are eligible for removal either two or three years after abatement of the hazards that resulted in SVEP program placement, depending on whether or not the employer enters into an enhanced settlement. However, because NV OSHA wholly adopted the federal guidelines, the federal standard for removal from SVEP should apply. These Fed OSHA SVEP guidelines require employers to:
- Abate all SVEP related hazards.
- Pay all penalties that are considered final.
- Complete all settlement provisions.
- Receive no additional serious citations related to the hazards from the original inspection that resulted in the SVEP placement.
- Complete one follow-up inspection by OSHA.
While NV OSHA has not specified what must be spelled out in settlement agreements to qualify an employer for the two-year track, mentioned above, it is likely they will mirror the Fed OSHA guidance. Such guidance requires that the employer agree to create a Safety and Health Management System which conforms to OSHA’s publication on recommended practices for health and safety programs. Employers must also have their Safety Program verified by an independent third party, such as a Certified Industrial Hygienist, or a Certified Safety Professional.
Practical Takeaways
- Employers should consider aggressively contesting citations with a high probability of a repeat occurrence, as repeat citations can result in SVEP placement.
- Safety personnel should proactively check for and correct any cited violations at all employer worksites, due to the possibility of repeat status.
- Employers should understand their rights during an OSHA inspection to possibly limit liability including limiting OSHA’s access to only those areas in which they have legal standing to inspect and observe violations.
Footnotes:
- . https://www.osha.gov/enforcement/svep
- . https://dir.nv.gov/OSHA/Severe_Violator_Enforcement_Program_(SVEP)/
- https://www.osha.gov/enforcement/svep#v-nav-3
- . This program, in full, can be found at: https://www.osha.gov/sites/default/files/publications/OSHA3885.pdf
