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February 02, 2012
OSHA Inspections: New Emphasis on Repeat Violations, SVEP

Auditing your workplace safety compliance is a great idea at the start of a new year, to ensure you're ready in case of an Occupational Safety and Health Administration (OSHA) inspection. Such an audit will allow you the opportunity to fix any problems you find – before they come to the attention of OSHA (or, worse still, cause a disastrous accident). Changes in emphasis from OSHA mean that employers need to be more vigilant than ever.

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In a BLR webinar titled "Workplace Safety 2012: Get Prepared and Avoid Costly Citations," Tiffani H. Casey, Esq., outlined some of the recent developments from OSHA, including their new emphasis on issuing repeat violations and their Severe Violators Enforcement Program (SVEP).

The Rise of Repeat Violations in OSHA Inspections

"Historically, repeat violations were rarely issued by OSHA. They treated workplaces as individual, independent establishments." Casey explained. "We have noted in the last year or so, they have been looking to get that broader reach to other establishments . . . [additionally] historically, the repeat violations were limited to three years of a review of an employer’s records, and, as you probably know, now it’s five. So, they can go back further . . . they’ve got two more years now of citations to look at to see if they can base the current citation on that to make it a repeat." This new emphasis for OSHA makes safety compliance – especially on areas of previous citations – more important than ever.

OSHA is now more likely to re-visit workplaces as well. These types of changes will have a more significant impact on corporate sites that are all treated as one workplace. They’re also being more selective about inspection targets, with the goal of finding and citing more severe violations.

The Severe Violators Enforcement Program

The emphasis on repeat violations dovetails into the Severe Violators Enforcement Program (SVEP), which began in 2010; you want to avoid getting on this list at all costs. Getting onto this list requires "willful," "repeat," or "failure-to-abate" citations. A serious violation, even one that contributed to a worker’s death or other severe injury, is not serious enough for the "Severe Violator" label.

The criteria for a "Severe Violator" case can include these types of situations (though one of these situations is not a guarantee of being added to the list):

  • Fatality or other catastrophe
  • Non-fatality or catastrophe-related to high-emphasis hazards
  • Non-fatality or catastrophe for hazards due to the potential release of a highly hazardous chemicals
  • Egregious criterion

If an employer is on the list, "OSHA thinks that, as an employer, [they’ve] demonstrated . . . indifference to their obligations under the Act, and they basically just don’t care about employer safety," Casey explained.

In any given year, less than 1 percent of U.S. worksites are subject to an OSHA inspection, and few violations (only about 4 percent) are categorized as "willful," "repeat," or "failure-to-abate" citations. You can see why this is a small distinct list for OSHA to watch over, and they get a lot of OSHA attention. If you’re singled out for this list, you can expect enforcement actions such as:

  • Mandatory follow-up OSHA inspections
  • Increased company and corporate awareness of OSHA
  • Corporate-wide settlement agreements, in which OSHA looks at all of a company’s facilities for repeats
  • Enhanced settlement provisions and federal court enforcement under Section 11(b) of the OSH Act

An employer can only get removed from the list if an informal or formal settlement vacates the citation, or an Administrative Law Judge, Review Commission, or court decision vacates the citation, but obviously it’s better to not land there in the first place!

For more information on OSHA inspection trends for 2012, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Tiffani H. Casey, Esq. is an associate in the Atlanta office of Fisher & Phillips LLP. (www.laborlawyers.com). She advises employers in OSHA recordkeeping, hazard assessment and self-audits, corporate-wide safety compliance, maintaining effective safety training and safety management programs, disciplining unsafe employees, inspection preparedness, workplace violence prevention, and health and wellness initiatives.

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