On September 15th, 2022, the U.S. Department of Labor (DOL) expanded the criteria for willful and repeated violators to be placed in the Occupational Safety and Health Administration’s (OSHA’s) Severe Violator Enforcement Program. The program targets employers that repeatedly expose workers to recognized hazards. Now that the DOL has broadened the program’s scope, more industries may see future heightened enforcement and inspections. Previous violators have notoriously included some discount retailers at which OSHA safety violations repeatedly occur.

Overview of the Severe Violator Enforcement Program

Created in 2010, OSHA’s Severe Violator Enforcement Program focuses enforcement and inspection efforts on employers that willfully or repeatedly violate the Occupational Safety and Health Act of 1970 (OSH Act). In addition, severe violators often have failed or refused to correct previously cited violations or eliminate workplace hazards within a permitted period (failure-to-abate). Enforcement actions under the Severe Violator Enforcement Program entail mandatory follow-up inspections. Additionally, OSHA may impose enhanced settlements and bring corporate-level awareness of any enforcement action. OSHA may also obtain federal court enforcement under Section 11(b) of the OSH Act. Finally, repeated and willful violators are included on a public list of the nation’s severe OSHA violators.

Expanded Criteria Under the Severe Violator Enforcement Program

Previous criteria for inclusion in the Severe Violator Enforcement Program were somewhat limited. For example, non-fatal criterion for inclusion required exposure to specific high-emphasis hazards or a highly hazardous chemical. However, the program’s expanded criteria remove that limitation and can include severe violators in industries without such limited exposures. Existing criteria also target employers with willful and repeated violations or failures to abate that resulted in a fatality, as well as those subject to egregious enforcement actions. In detail, the Severe Violator Enforcement Program’s updated criteria include:

  • Employers with citations for two or more willful or repeated violations or a failure-to-abate notice based on a high-gravity serious violation. These are violations in which the potential for injury is high.
  • Follow-up inspections within one year, but not longer than two years, after the final order.
  • Eligibility for removal from the program beginning three years after the employer has abated the hazard. The employer must also verify the abatement with OSHA. Previously, employers were eligible for removal three years after the final order date.
  • Potential reduction of time spent in the program after a minimum of two years and an agreement to use a safety and health management system based on Recommended Practices for Safety and Health Programs.

Employer Takeaways

Considering the recently expanded criteria for inclusion in the Severe Violator Enforcement Program, employers must understand that they may likely fall under OSHA’s radar for enhanced enforcement. Therefore, it is imperative that all employers follow their federal obligations under the OSH Act’s General Duty Clause. These duties include furnishing employees with employment and a place of employment free of recognized hazards likely to cause death or serious physical harm.