By James L. Curtis and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has just published a Guidance on removing employers from the Severe Violator Enforcement Program (SVEP). As we noted in a previous blog, since the SVEP has been in effect over 300 employers have been designated as severe violators. However, until now, there has not  been an established means for an employer to get out from under this designation. 

The OSHA Directorate of Enforcement Programs (DEP) announced that they have completed a review of SVEP policy for removal of employers from the list and has established guidelines for getting off the severe violators list. Under the new Guidance an employer may be considered for removal from the SVEP by an OSHA Regional Administrator (except in cases where national corporate-wide settlements are involved) after:

• A period of three years from the date of the final disposition of the SVEP inspection citation items including: failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.
• All affirmed violations have been abated, all final penalties have been paid, the employer has abided by and completed all settlement provisions, and has not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.

If an employer fails to adhere to the terms and provisions of the agreement, the employer will remain in the program for an additional three years and will then be reevaluated.

For cases involving national corporate-wide settlement agreements, the DEP will make a determination, “upon the termination of the agreement, regarding the employer’s removal from the program.” The Guidance specifies that pursuant to Guidelines for Administering Corporate-Wide Settlement Agreements (June 22, 2011), the National Corporate-Wide Settlement Coordinator “will ensure that the follow-up requirements of the SVEP have been completed and the terms of the agreement have been implemented.”

To complicate the process of removal, the Guidance indicates that “the previous guidance regarding lining-out establishments remains in effect when facts indicate that reclassification of the SVEP qualifying citations is appropriate due to the quality of evidence brought forth during settlement. However, removal from the SVEP list cannot be used as an incentive for settlement.”