Since June 2010, the Occupational Safety and Health Administration (“OSHA”) has tried to corral employers who continually disrespect and disregard legal safety regulations designed to protect workers from injury on the job through its Severe Violator Enforcement Program, established pursuant to Section 11(b) of the federal OSH Act of 1970.
Sadly, OSHA’s efforts through its Severe Violator Enforcement Program (“SVEP”) to make workplaces safer in this country from these rogue employers has not been successful. Far too many companies in Indiana, Illinois, and across the nation, continue to ignore workplace safety regulatory mandates.
Just consider the recent Top Ten list of federal safety regulation violations released by OSHA. The general safety regulation for keeping workers safe from falls – known to be one of the most common reasons for severe injury or death on the job, especially in the construction industry – has remained the most often ignored and violated safety regulation for the past twelve years. Twelve. Read, Fall Protection on the Job Remains Top OSHA Safety Violation for 12th Straight Year.
As a result, workers have been, and continue to be, seriously injured or killed in preventable accidents that would not happen if safety regulations had been followed.
The New 2022 OSHA Severe Violator Enforcement Program
Recently, OSHA took formal action to try and better protect workers on the job from these rogue employers. In September 2022, its SVEP was significantly expanded in an attempt to “strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses.” The new 2022 SVEP replaces the 2010 program in its entirety.
The 2022 SVEP applies not only to federal OSHA programs, but to those states with OSHA’s State Plans, like Indiana and Illinois. For more on our state OSHA plans, read Workplace Safety and OSHA Regulations in Indiana and Illinois.
From Assistant Secretary for Occupational Safety and Health Doug Parker:
“The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards. Today’s expanded criteria reflect the Biden-Harris administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.”
New SVEP Criteria
Under the 2022 SVEP, not only will new industries be included within its enforcement umbrella, but violations of all hazards and OSHA standards are involved with a focus upon repeat offenders. Read, OSHA Instruction regarding Severe Violator Enforcement Program (“SVEP”), Directive No. CPL 02-00-169, released on September 15, 2022.
As OSHA’s Doug Parker explains in the Department of Labor blog post published in tandem with the release of the new OSHA SVEP Instruction:
- The expanded program criteria now includes all hazards and OSHA standards.
- Employers will be placed in the program if OSHA finds at least two willful or repeated violations or issues failure-to-abate notices based on the presence of high gravity serious violations.
- Follow-up or referral inspections must be conducted within one year, but not longer than two years, after the final order.
- The potential for removal from the program begins three years after the date of verification that all SVEP-related hazards have been abated, instead of when final order is issued
- Employers can reduce the amount of time in SVEP to two years if they consent to an enhanced settlement agreement that involves implementing a safety and health management system.
What 2022 SVEP Means for Workers on the Job in Indiana or Illinois
As our state OSHA plans work in coordination with the federal safety agency, the new 2022 SVEP is intended to make workers safer on the job here in Illinois or Indiana, especially in high-risk industries or at workplaces with hazardous workplace reputations.
Now, it is easier for an employer to be forced into the SVEP. While employee fatalities had to happen before action was taken against a company under the old program, the new 2022 SVEP allows several different entryways. They include:
- A minimum of three (3) worker hospitalizations documented against the employer;
- High-emphasis hazards shown to exist on the worksite;
- Evidence that there is the possibility of a toxic chemical or hazardous material being released on the site; and
- Several other actions that are deemed “egregious” by the regulatory authorities.
If a company in our area has compliance records that include three or more worker hospitalizations; or its safety practices involve things like high-risk hazards for workers or hazardous chemicals on the site, then that company needs to consider the possibility that it may be vulnerable to inclusion in the new SVEP. Once there, the company remains in the program for at least two years.
For more, read “OSHA expands its Severe Violator Enforcement Program,” published by Safety and Health Magazine on September 19, 2022.
Caveat: The November 2022 Dollar General Example
Sadly, safety agencies and advocates for worker victims are not optimistic that this new OSHA program will block companies from disregarding their workers’ safety.
Let’s consider Dollar General. This company made the news this week for being assessed a total of $12.3 Million in penalties by OSHA over the past six years (since 2017) for its continued willful worker safety violations.
This company obviously has not stopped violations of federal safety regulations at its stores across the country. For details, read OSHA’s November 1, 2022, news release entitled “Profit Over People: Alarming Trend Continues At Dollar General Stores Where Seven Southeast Inspections Again Find Willful Violations.”
OF note, according to Statista, as of February 2022 there were 641 Dollar General Stores in Indiana; another 637 in Illinois; and Dollar General made $34.22 Billion in net sales in the single year 2021.
If it were to pay all violations for the past six years in 2021, that would only amount 0.035943892460549% of that year’s net sales revenue. For companies that put profits over people, faced with paying total violations that represent less than one percent (.o34%) of the net sales of a single year (2021) speaks volumes.
Justice for Workers Seriously Hurt or Killed on the Job in Illinois or Indiana
For workers who are severely injured or killed while on the job in Illinois or Indiana, there are avenues for justice provided by both state and federal law. Both workers’ compensation as well as personal injury claims seeking monetary damages may be available based upon negligence, defective products, premises liability, etc.
For workers and their loved ones concerned about dangers on a local worksite, it is imperative that they understand the right to a safe worksite provided by law and that employers have a clearly defined duty to their employees to do many things, from property inspections and providing Personal Protective Equipment (PPE), to offering worker training and setting up emergency safety protocols. If these duties are breached and someone gets hurt, then employers may have legal liability for the consequences of the safety violation(s).
For more, read:
- The PPE Problem: Study Blames Workers for Failing to Use Personal Protective Equipment on the Job
- How Great is the Danger of Workers Dying in Fatal Work Accidents in 2022?
- The Two Main Differences Between Workers Compensation and Personal Injury Claims for Accident Victims in Indiana and Illinois
- Premises Liability and Workplace Accidents: Third Party Injury Claims
- Multiple Employers on the Construction Site: Who Is Liable For Construction Worker Accidents?
Increased enforcement of safety regulations is imperative for worker safety. Sadly, for many workers and their families, it is only through the civil justice system that employers are made to take responsibility for the dangers they have allowed on the worksite. Please be careful out there!
