Outcome Goal 2.1 of the Department of Labor’s Strategic Plan for 2010–2016 is to “Secure safe and healthy workplaces, particularly in high-risk industries.” To accomplish this, the Occupational Safety and Health Administration (OSHA) has developed strategies to target industries where employees are most vulnerable and employers who are “egregious and persistent violators.”
More specifically, OSHA has established a Severe Violator Enforcement Program (SVEP) and several special emphasis programs aimed at those areas. Unfortunately, electrical construction falls into the high-risk industry category. Hopefully, our employers will not be found to be severe violators. Regardless, we need a better understanding of the SVEP and those emphasis programs that may affect electrical construction.
OSHA’s SVEP focuses on employers who have demonstrated a disregard for safety by committing willful, repeated or failure-to-abate violations. To be identified as a severe violator, a company will have been selected for inspection through other means and then targeted for extensive follow-up, repeat and/or corporate-wide enforcement.
Under the SVEP, whether the inspection was performed by federal OSHA or an OSHA State Plan, procedures are in place to ensure all company job sites are covered regardless of jurisdiction. All states were required to either adopt the SVEP as-is or create an equivalent program that would identify the same type of employers and ensure federal OSHA was informed so that it could conduct the appropriate inspections. SVEP also applies to all employers regardless of size.
As mentioned, the first step in being targeted for SVEP is an initial inspection, either programmed or unprogrammed. In construction, programmed inspections are based on construction project starts as identified by the F. W. Dodge reports. The University of Tennessee maintains a database of the reports. The local area director for OSHA can enter variable criteria—such as end-use, type, dollar value, number of stories, or type of construction project owner—to generate a custom list of job sites to inspect. Other programmed inspections are based on special emphasis programs.
Unprogrammed inspections can be the result from employee complaints or referrals by other agencies. For example, a visiting representative from the Department of Labor Wage and Hour Division who sees a concern can refer your job site to OSHA.
Knowing where you stand with respect to construction project starts may indicate your potential for a programmed inspection. Employee safety concerns and exposure to other agencies may provide insight to the possibility of an unprogrammed inspection.
Regardless of how OSHA got there, once on your site, it will determine if you are a severe violator. You need only be cited for one willful or repeated violation or failure-to-abate notice during an inspection of a fatality or catastrophe to be considered a SVEP case. If the inspection is not related to a fatality or catastrophe, but you will qualify if OSHA finds two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), which are based on high-gravity serious violations related to a high-emphasis hazard. In a high-gravity serious violation, there is potential for “Death from injury or illness; injuries involving permanent disability; or chronic, irreversible illnesses.”
The high-emphasis hazards are violations of specific standards related to OSHA’s special emphasis programs, which are identified in the Compliance Directive. Among others, they include the fall, silica, lead and trenching hazard related-standards below:
• 29 CFR §1926.451—General requirements [Scaffolds]
• 29 CFR §1926.452—Additional requirements applicable to specific types of scaffolds
• 29 CFR §1926.453—Aerial lifts [Scaffolds]
• 29 CFR §1926.501—Duty to have fall protection
• 29 CFR §1926.502—Fall protection systems criteria and practices
• 29 CFR §1926.760—Fall protection [Steel Erection]
• 29 CFR §1926.1052—Stairways [Ladders]
• 29 CFR §1926.55—Gases, vapors, fumes, dusts, and mists
• 29 CFR §1926.103—Respiratory protection
• 29 CFR §1926.62—Lead
• 29 CFR §1926.651—Specific excavation requirements
• 29 CFR §1926.652—Requirements for protective systems [Excavations]
SVEP status also will be met if the inspection results in three or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices), based on high-gravity serious violations related to hazards due to the potential release of a highly hazardous chemical.
Finally, any case in which egregious enforcement is used meets SVEP criteria. Egregious enforcement is when citations are issued for each instance of a violation. For example, a citation may be issued for each employee who did not wear his respirator when needed.
Upon being identified as a SVEP case, OSHA now needs to determine whether similar violations are occurring elsewhere. To determine this for construction, the regional administrator must ensure he or she can investigate further. Since the project may be closed, he or she may include the requirement in a settlement that the area director be notified of other job sites before work starts for one year from the start of the agreement.
Another tool OSHA may use is a subpoena requiring the same notification. All SVEP subpoenas must be coordinated with the regional solicitor. If more than one region or state that operates an OSHA State Plan are affected, the directorate of enforcement programs at the national office will be notified and a nationwide referral released.
If the investigation reveals reasonable grounds to believe that the failure to comply may be a broader issue with the company, OSHA will inspect related job sites or establishments. Related establishments include subsidiaries, affiliates or parent corporations with substantial common ownership anywhere in the country. Work activity does not have to be identical, only similar.
Establishments in the same three-digit NAICS code or two-digit SIC code may be inspected. Even establishments not in similar codes can be inspected if there are reasonable grounds to believe hazards and violations may be present at these sites. Compliance officers and administrators are instructed to question employees about corporate structure and patterns of compliance to justify locations to inspect.
Whether you are a SVEP location or not, you may be subject to a special inspection based on the work performed. OSHA has established emphasis programs to target high-risk industries and hazards. These programs may be administered at the national, state or local level. Resources are focused more on these areas and procedures are established to increase inspections of affected job sites and establishments.
National emphasis programs can be generated for any area where OSHA has determined a need. They also seem to have a broader effect, regardless of the target industry or compliance issue. For example, there is a national emphasis program for recordkeeping. Although construction was not identified in the initial directive, recordkeeping for the electrical industry reached the top 10 most-frequently cited. Other national emphasis programs that may affect electrical contractors are crystalline silica, lead, hexavalent chromium (if you weld or cut metals containing chromium) and trenching.
Regional and local emphasis programs need to be approved. All local emphasis programs are supposed to address one or more hazards or targeted industries identified in OSHA’s Strategic Plan. The national office recognizes that area offices need to address local industry hazards and allow for unique problem--solving projects. These exceptions are authorized through the regional administrator. Approval for any local emphasis program requires appropriate documentation and rationale, a list of establishments or a method of generating a list of work sites, a random selection process to identify establishments for inspection and an evaluation component that will determine the program’s success.
If the program targets employers with 10 or fewer employees, it must contain a statement explaining why the program is appropriate to do so. OSHA’s directive on local emphasis program does not cover State Plan states. This does not mean the states have not implemented emphasis programs. There are a number of state emphasis programs run in conjunction with regional programs and independently within in that state.
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 and email@example.com.