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Severe Violator Enforcement Program

Cal/OSHA has launched the Severe Violator Enforcement Program (SVEP). This is not a new law or regulation but an enforcement policy that does not require public comment. The policy is detailed in a new Cal/OSHA’s Policy and Procedure Manual (P&P) section, C-200.

The policy is similar to a Fed/OSHA policy and is intended to ensure Cal/OSHA be as least as effective as Fed/OSHA. An employer may be considered a “Severe Violator” if they receive:

  • At least one willful citation, repeat citation, or a failure-to-abate notice based on a serious violation directly related either to an employee death, or to an incident causing three or more employee hospitalizations.
  • At least two willful or repeated violations or failure to-abate notices (or any combination of these violations/notices), based on the presence of serious violations which are determined to have both high severity and high likelihood.
  • An egregious citation.

On a multi-employer jobsite if a subcontractor is determined to be a ‘Severe Violator’ the controlling employer, typically the General Contractor, can be a ‘Severe Violator’ and issued the same citations as the subcontractor.

If an employer is tagged a ‘Severe Violator’ they can expect:

  • A follow-up inspection with the High-Hazard Unit. These are much more in-depth and potentially wall-to-wall inspections.
  • Inspections by the High-Hazard Unit of other jobsites in the State.
  • A referral to Fed/OSHA for jobsites out of the State.
  • The settlement agreement for the citation may include a requirement to hire a safety consultant.

The employer will remain on the SVEP Log for three years. This may be reduced if the employer develops and implements a Safety and Health Management System (SHMS) acceptable to Cal/OSHA.

Egregious Violations

Egregious and enterprise-wide violations (see below) were created by SB606 in 2021. Cal/OSHA is working on regulations to implement this law and create a framework for issuing these new types of violations. A willful may be classified as an egregious violation if one or more of the following is true:

  • The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
  • The violations resulted in worker fatalities, a worksite catastrophe, or many injuries or illnesses.
  • The violations resulted in persistently high rates of worker injuries or illnesses.
  • The employer has an extensive history of prior violations of this part.
  • The employer has intentionally disregarded their health and safety responsibilities.
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
  • The employer has committed many violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
  • The employer has had an egregious violation in the last 5 years

Each egregious citation will come with an egregious fine ranging from $11,337 to $158,727. More will be known when the rulemaking is completed but it is sufficient to say no employer wants to be an egregious violator.

Enterprise-Wide Violations

This law, and soon to be regulation, creates a ‘rebuttable presumption’ that the violation exists at all the employer’s jobsites if either:

  • The employer has a written policy that violates or does not comply with a Cal/OSHA regulation.
  • Cal/OSHA has evidence of a pattern of practice of the same violation(s) existing on other jobsites.

A ‘rebuttable presumption’ means the employer must prove this is not true. Employers will be required to correct the violation at all locations indicated in the citation. The proposed fine will be multiplied by the number of sites covered by the citation and can be up to $158,727. Additional fines of up to $15,000 a day may be levied if the violation is not abated in the timeframe set by Cal/OSHA.

What should employers do NOW?

  • Review your IIPP and other safety programs and update them if necessary.
  • Audit your worksites to see if the safe work practices in your safety programs are being followed.
  • Do not ignore the small things. Not wearing a hardhat, wearing tennis shoes, or not setting up the shade seem like minor issues, but ignoring the small things often leads to serious unsafe work practices.  

Safety has always been a moral necessity; no one wants to see the people they work with get hurt. It is now a business necessity. Rising workers comp costs and safety prequalification can make or break a company. A strong safety culture where everyone takes the well-being of themselves, their coworkers and the company to heart is needed now more than ever. Ask yourself “why is safety important to me?” then ask those around you.