10 OSHA Compliance Myths Busted

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I’m your host, Sheldon Primus. Here is the podcast where I teach you the business of being a safety consultant. Talk about OSHA compliance. Talk about occupational safety and health stuff. Trying to get you guys ready for getting out there. Doing the job. Protecting people. That’s the stuff we do, right? Come on. Oh, well, welcome again to another week. I’m actually getting close to my podcast anniversary coming up. And I’m mulling an idea in my head. So, while I’m mulling this idea in my head, if you have not chosen to subscribe to this podcast on whatever system or service you’re listening to, go ahead and do that for me, all right?

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But I am such a fan of Disney, if you remember Lion King, when Timon and Pumbaa, who were friends of, of course, the Lion King, and they said, leave your past and behind. But they’re instead of saying that, they said, leave your behind in the past. Oh, yes. I love that. Leave your behind in the past. Brilliant writing, Disney. All right. So, enough with the Lion King reference. So, this week, actually, what I did want to get into is, I’m actually going to go over, like, a quick, just an overview of some of the things that I hear often about myths with OSHA, the agency.

I work with OSHA quite a bit through clients and through training, and then also I am an authorized instructor for the 10 and 30 hours and the numbered courses. If you are familiar with the system, OSHA, like, for instance, instead of saying it’s an OSHA record-keeping class, sometimes they would just say the OSHA number that is associated with record-keeping. The actual course number is what it would be. So, I teach those as well, and I get a pretty good familiarity with OSHA. So, I am going to address some of the just ridiculous myths that I’ve been hearing, and I might even throw in some more Laniap, which is a little extra, but I got at least 10.

So, 10 is where I’m going for, and I’m even going to list this heading of this title, as you’ve probably seen already, the top 10 most widely spread OSHA myths. I’m probably not going to do that one. I’ll probably have to say top 10 OSHA myths or something like that because it’s more snappy. So, let’s start with, and my information is going to come from several sources, and I’ll direct you to those sources, too, so you can verify, right? We all need to verify because if you don’t, you might be, you know, someone might tell you something that you should not believe. So, I am going to verify. So, first, can OSHA shut down a job site? And I hear that all the time.

Well, you better do what you need to do or else OSHA will come by and they’ll shut you down. They’ll shut you down. Yes. No, they will not shut you down. They don’t have that kind of jurisdiction. So, you could literally do a Google search that says, can OSHA shut down a job site? And you’re going to see lists and lists and lists of many people that will respond to that answer. I’ve got one of those lists, which is coming from a law firm. And this is what the consensus and the truth is. OSHA has no jurisdiction to shut down a business at all. All right? Period. So, get it out your brain. OSHA cannot shut down a job site.

However, what will happen in some bad cases, what they’ll do is they will literally get an administrative law judge and they will get a warrant. And the warrant itself will be the judge telling you to shut down the job site. So, they could influence getting a job site shut down. But OSHA cannot shut down a job site. People cut it out. Just cut it out. It’s just, I don’t know. Every time someone says this, a compliance officer loses their wings. Okay. So, there you go. Myth number two. And this is actually part of the regulation, right? So, myth number two, I’m going right into it, is with excavations. Meaning, a man-made cut into the ground.

So, as far as definitions goes, you would have to go to the construction standard, which is 1926. That’s the part in construction. And you want to go to just section 650. Section is the number after the dot. So, whenever you see like 1926.650, that dot’s name is section. So, in 650, you’re going to see paragraph B. And in paragraph B, there’s a whole bunch of definitions. And this is the literal definition for an excavation. Any man-made cut, gravity, trench, or depression in an earth surface formed by earth removal. Now, when you take that earth and you remove it, you’re putting it someplace. And you’re kind of collecting it together in one pile, if you would.

And then, eventually, that earth is going right back into the ground. So, that pile is called a spoil pile. And when people put the spoil pile too close to the excavation, there’s many people that says that that will build the excavation. So, now, instead of your excavation, let’s say it was from ground down 10 feet. They’re saying if you have a two-foot spoil pile, your excavation now is 12 feet. Cut it out, people. That’s not the case because it doesn’t hit the definition. Think of it. If you have two spoil piles together and you walk through it, are you in an excavation? Hmm? Consider that. Are you in an excavation? No. Cut it out.

So, what happens is you’re going to have a spoil pile that is next to an excavation that’s 10 feet, but the excavation is not going to go that extra two feet of the spoil pile and now be 12 feet. It doesn’t magically end up going down in the ground two extra feet. You’re building up off of the surface. That does not equal depth. Depth is going down at descent. Okay? So, just block it out of your brain. Your excavation is going to start at ground level and going down only because the definition says it’s a man-made cut. Cavity, trench, or depression in the earth formed by earth removal. Spoil pile is not part of that. And I’m going to throw in another one here.

So, let’s call this myth number three. So, I’m even throwing off my own system because I’ve got this written down. So, here’s myth number three related to excavations. Brace yourself. An excavation and a permit required confined space are two different things. Did I say that? Yes, I said that. Excavations and confined space are two separate things by definition. So, you cannot call an excavation a confined space, a permit required confined space because they are two separate things. Though their hazards are similar, they are two different things. And if you go to subpart AA in construction, so that’s 1926, that’s the part. Subpart is a smaller grouping of things together.

So, if you go to subpart AA, I mean, literally, it is confined space in construction. Why would OSHA have to do a confined space, the actual standard, and an excavation standard if they were the same things? So, first, think that out. And now, here’s the other one. So, here is the scope. Just literally, section 1201. The scope of the standard. It tells you the exception to the standard where it does not apply. And the number one thing, B1, is excavation. So, you honestly cannot keep telling me that a permit required confined space and an excavation are the same thing. But definitely listen to me. They have similar hazards. You’re going to almost treat them the same.

There’s different characteristics, obviously, between soil and vessels. But you’re going to treat them mostly the same. You want to monitor the atmosphere. You want to make sure that people in there are trained. You want to have your ways of making sure that your workers can get rescued promptly. I’m not saying that. You’re going to treat it as if the same. Just don’t use that nomenclature that is an excavation is a confined space. No. All right. Confined space is three things. One, you can get in and out of the space. And it calls it limited ways of getting in and out of the space. And this is in order. Secondly, the space wasn’t meant for continuous human occupancy.

And then third, the other part of it is that you can physically get into the space. They call it whole bodily entered. So, with that definition, you know, you’re thinking of, ah, this space itself hits those definitions. However, the excavation, let’s say you had a pipe inside of excavation. The pipe is the confined space. However, the excavation is going to be also there as well. So, you will have two conditions at the same time. So, you will have an excavation and then you’ll have a confined space. But the excavation and the confined space both have their own definition. So, again, they are going to be considered similar. But nomenclature-wise, definition-wise, they are different.

All right, let’s go to the next one. We’re calling this number three. Actually, let’s call it number four because I gave you guys two just there with excavation. Another myth. Can OSHA shut down a job site? All right. I’m waiting for your answer. No, I’m not waiting for your answer because I can’t hear you. Stop yelling at your radio. OSHA cannot shut down a job site. I told you guys that. Secondly is… Oh, I already gave you guys that one. So, here’s number four. I already gave you guys a job site one. Here’s number four. Can OSHA cite you for your company policy if you violate your own company policy? Everyone will say that or a few people will say that. I shouldn’t say everyone.

The answer to that one is no. So, here, let me give you the clean question now that I remembered I asked you that other one before. So, here’s the question. Can OSHA cite you on only your company policy if you’re… Here’s an example. You’re in construction and for OSHA, fall protection starts at six feet with construction, most construction. Depends on if you’re a scaffold, if you’re doing steel erection, then that gets a little different. But let’s say you’re just doing general construction activities. Six feet is where fall protection starts. But your company may have a policy that says let’s do five feet. Because you want to make sure that it does not, that we’re more stringent.

So, if your workers are working and you get your company policy at five feet and OSHA shows up and they see your workers at five feet without fall protection, Some people will go ahead and assume that since you’re violating your company policy that OSHA will cite you on that. That is not the case. Not at all. Because OSHA doesn’t know everyone’s policies and procedures. Your policy and procedures didn’t go through the federal register. It didn’t go through the system to get approved for actually becoming law. You know, the open comment period, all the other stuff with stakeholders that you would see in your preambles of every law. That wasn’t done for your company site.

So, OSHA cannot cite you on your company policy if your workers don’t obey your company policy unless your company policy is already mimicking or being the same as federal law, which is in the OSHA parts. Right? How could they do that? It just makes no logical sense. So, again, for those people that are saying that, cut it out. All right. Here’s another one. I do hear a lot about the 10 and 30-hour classes. And I told you guys earlier just a few minutes ago that I am one of those people that can train through my, I’m working with Mid-South OTIEC. And that acronym stands for OSHA Training Institute Education Center. So, that is the full name of it.

So, a lot of people would like to send all their workers to the 10 or 30-hour courses. And the 10 and 30-hour courses are those courses that are used for making your workers kind of aware of OSHA standards. And then also, just hazard awareness more than anything. So, right in the overview, if you would, of the program, they’ll tell you specifically that this program is not meant for compliance. So, you cannot use this for compliance training. You could only use the 10 and 30-hour programs just for awareness. So, the 10-hour is for usually your entry-level workers.

And then your 30-hours is those who have, like, a greater responsibility for safety training, safety on the field, on the job site. So, at that point, you’re just covering hazards, right? And after that, that’s it. There is no OSHA standards that you are really supposed to go over too much more than just a mention. So, therefore, it is not compliance training. You can’t just send your workers or, you know, us. So, our role as consultants, or if you are the consultant for your company, maybe not on your own, is to provide information and training to get your workers to recognize hazards and then to know how to control them, right, or avoid them.

So, when you’re doing the 10 and 30, that’s really all you’re going to be doing. But it’s still not compliance training because then you’re going to get more specific on a certain hazard. And that now is going to take on its own characteristics. You can’t squeeze that into a 10 to 30. So, again, 10 to 30-hour training is not compliance training. All right. So, we got five out of there. This is our halfway point. So, here we go. Let’s do the halfway stretch. Stretch it out. Yeah, there you go. Stretch, twist, one, twist, two. All right. How’d that go? Good stretch. All right. So, we stretched it out. So, let’s get to number six. Got past the halfway point. Let’s go to number six.

OSHA standards are not interchangeable between industries unless there is an incorporation by reference. So, what that means, incorporation by reference means that OSHA says, though we have a compliance regulation for, let’s say, construction, then this construction one will also cover in general industry. An example of this is scaffolding. So, those of you that are in general industry, whenever you use a scaffolding, you’re going to have to comply with construction scaffolding, which is going to be subpart L in 1926 and the construction standard. That is an incorporation by reference where OSHA is bringing in the construction standard into general industry by referencing it.

And that reference is going to be in the 1920, 1910 rule in their subpart D. You’re going to see a section that says scaffolding, and that’s going to lead you right back to going into the construction part and subpart L. So, in saying that, you can’t look at a site, fall protection I gave you guys earlier. If you’re in general industry and you see someone at a fall, I should say someone at an unguarded side or edge at six feet, that’s construction standard. If you were ready or breaking the law, because your standard is four feet, they don’t interchange, unless it is incorporation by reference.

So, you could see something in the field, and let’s say you’re in power generation and distribution. You now, if you’re in a field in general industry, you’ve got a subpart R that’s going to tell you about power generation and distribution. But if you were to go over to subpart S, which is electrical safety in general industry, you are in the wrong subpart. That’s not where you are. You’ve got to stay in your lane. You’re not there. So, therefore, you’ve got to match the situation and the hazards in order for you to match the right book. And they’re not interchangeable. Where this gets messy is maintenance, activity, and construction.

Because now, maintenance, activity, and construction can lead you to a few questions that could deem that it could be actually general industry, just by your activity. But, yeah, that one, yeah, that does get tricky. I do understand that. All right, next one. While we’re talking about scaffolding, OSHA does not approve actual boards for scaffolds. That’s just ridiculous. I’m going to actually give you this own thing right there. So, that’s another one. Let’s call that seven. OSHA does not have a department of someone stamping out boards that says OSHA approved.

What a manufacturer is doing is they’re telling you that they’re building these planking that is per OSHA specs in the subpart L standard. That’s what they meant. But that’s not as catchy as saying OSHA boards. So, they want to just go ahead and say, I am, you have the official OSHA boards for your scaffold. So, there you go. That one gets its own. So, number eight. I do hear a lot of people say that you could only have 5,000 pounds of anchor point per person on a personal fall arrest system. So, there’s three major ways of protecting your worker from a fall to below hazard.

That’s going to be guardrails, engineering control, safety net, another engineering control, or personal fall arrest system. And that’s going to be PPE, personal protective equipment. That system is threefold. You’ve got an anchor point. You’ve got your lanyard or lifeline. And then you’ve got your full body harness holding the worker in. And they’re connected by a D-ring from the full body harness and then also the anchor point. That’s the connection between the lanyard on one side and the other. So, there is in subpart M, and that’s going to be the subpart related to fall protection in construction, subpart D in general industry.

There is a consideration for if you can’t have 5,000 pounds of anchors, you could actually re-rate it down. So, what you would do, and this is a specific way to do it though. So, it is possible to go below 5,000 pounds. And the way you would do it is the personal fall arrest system is going to rely on dispersing the actual weight of that individual as they fall. And that weight disbursement is going to be through your full body harness. So, that full body harness now is going to have, it’s going to, it’s the requirement in section 501. Actually, it’s going to be section 502. And it’s going to be paragraph D.

And when you go all the way down to subparagraph 16, you’re going to see in item 2 that the limited maximum arrested force of an employee is 1,800 pounds when using the full body harness. So, going back to section 15, you’re going to see where the anchor point has to be either 5,000 pounds or it’s got to be part of a complete personal fall arrest system that maintains a safety factor of at least two. So, what that safety factor of at least two is, it’s two times what that arresting force of that full body harness is. So, therefore, you could downgrade or just say downrate your protection to actually be 3,600 pounds, not just 5,000 pounds.

However, there is a real, real important consideration. So, you would have to go to your paragraph D, subparagraph 15, and then you’re going to see item 1 and 2. So, first, you’re going to have to have that safety factor of two, and then secondly, you’re going to have to have the job done under the qualified person. So, qualified person is going to be that person that is going to understand that they could take that rating down because of, you know, wherever they apply your anchor point. They’re going to really have to do some math on that one. That’s why it’s a qualified person. So, that’s the idea behind the anchor point.

So, you’re going to have to have it as a complete part of, you know, full body harness, lifeline anchor point, and then the anchor point’s got to be something that a qualified person is going to not only supervise, but they’re also going to be the ones who design the new way to anchor that person to downrate or re-rate that from 5,000 pounds to 3,600 pounds. All right. All right, here’s another one. Let’s get us to number, let’s see, number nine, I believe we’re on. And can OSHA fine employees individually? Not usually. That’s your answer. There is a provision in Section 17 of the Act for if you lie to OSHA, then they can fine you individually.

So, if you now give them some false information, that’s going to be, when you go to the Act, the OSHA Act, you’re going to go to Section 17 under penalties. And then, I believe it’s paragraph G, yep, paragraph G, I got it here. Whoever normally makes any false statement, represents, or certification in any application record report, and blah, blah, blah, you’re going to get not more than $10,000, or by imprisonment, not more than six months, or both.

So, that’s when OSHA can take a citation, if you would, to an individual, as opposed to a company, is if that individual is knowingly falsifying records, such as a safety officer who is going to hide any kind of reported injury and tell them to go, the injured person to go to their own doctor. So, at that point, yeah, you’re probably going to be falsifying your records on your OSHA record keeping logs. That’s going to get you a $10,000 fine, if they find out. So, yep, that is when you get an individual fine, as opposed to a fine with the corporation itself. So, now we are up to number nine. So, number nine, that was the, can OSHA find the employees?

Number 10, it’s going to be, what does OSHA do? A lot of people think with the fines. One of the myths is that OSHA gets that money, and they’re going to use that money for, like, you know, pizza parties, I don’t know, whatever it is. But that is not the case. So, actually, it’s in the same section of the act. So, if you go wherever you find the OSHA Act, you could go to OSHA.gov, type in OSHA Act, and I’ll get you to where you need to be.

And it’s still Section 17, but on the very last sentence, it’s going to be Paragraph L, tells you, Civil penalties owed under this act shall be paid to the Secretary of Deposit and the Treasury of the U.S., and shall accrue the U.S., and may be recovered by civil action. But it’s generally going, that’s just telling you it’s all going into the Treasury. So, it’s that general fund. All right, now, I told you guys it’s going to give you a lanyard, but one extra, right? So, this is 11. This is the extra. It’s a big one. OSHA does have quotas for enforcement. If you were to say that to a compliance officer, and they’re like, oh, we don’t have quotas, yes, they do.

They do have quotas for enforcement. You could see it. So, all you’d have to do is open up the budget, the OSHA budget, which is going to be in the Department of Labor, the 2023 budget this year that we’re currently in. It says that OSHA plans to conduct 33,790 inspections and reach a goal of 60,822 enforcement units. And enforcement units is basically a tiering of different types of inspection. So, easy inspections for OSHA would be like a construction inspection. They could do that in, you know, a couple hours in some cases. Whereas, if there was a fatality or a process safety management investigation, chances are that’s going to take you several days, sometimes weeks.

So, that’s going to take the compliance officer more time, energy, and effort. So, the enforcement unit-wise, OSHA says that activity is going to weigh more than the activity of doing inspections in construction sites. So, they are looking to increase their enforcement units by 60,822. So, that is what they’re going to be doing activity-wise. But then, also in the budget, it tells you where they’re going to be doing these inspections. And that’s going to be in their high-impact industries, those people that are going to need to report to OSHA electronically if they have 20 to 249 workers. And they meet a certain North American Industry Classification System Code, NAICS.

That coding itself is a grouping of competitors, if you would, people that do the exact same thing. So, now you know that this is the hazard related to roofing work. This is the hazard related to underground construction that everyone that does this type of work, they’re going to be exposed to the same type hazards. So, OSHA now literally has a quota. So, you’re going to see that in their budget. So, many people might even hear, like, oh, OSHA doesn’t have quotas. And then, sometimes I do hear people say, well, it’s getting to the end of the month that OSHA is going to be out there so they can fill their quota.

So, I don’t know if that part’s true, but I just know that if you look at the enforcement units, you can actually see the activity. So, let’s see. I’ll pull that up real quick. OSHA.gov forward slash enforcement forward slash 2021. That’s the most recent hyphen enforcement hyphen summary, right? So, that’s the actual URL for you to find their enforcement units. And, again, as our rule is, if you’re driving, you’re listening to this the first time, then when you get to a place where you’re safe to look it up, then go ahead and look it up. That is our rule on this show. So, follow the rules. So, that is the, I think I gave you guys 11, right? So, I gave you guys 11 things that are just myths.

Just absolute myths regarding OSHA and their enforcements and everything else. So, again, we did another week, yay. So, I’m getting to next month in April 2023. It’s going to be an anniversary month for us. So, that’s going to be really cool. So, if you have not, subscribe to the podcast, please do, so that you’re going to get to hear the changes. All right, gang. You got some more information. Now, it’s your turn. Go get them. This episode has been powered by Safety FM. The views and opinions expressed on this podcast or broadcast are those of the host and its guest and do not necessarily reflect the official policy or position of the company.

Examples of analysis discussed within the past hour are only examples. They should not be utilized in the real world as the only solution available as they are based on very limited and dated open source information. Assumptions made within this analysis are not reflective of the position of the company. No part of this podcast or broadcast may be reproduced, stored within a retrieval system, or transmitted in any form or by any means, mechanical, electronic recording, or otherwise, without prior written permission of the creator of the podcast or broadcast, Sheldon Primus. This episode is powered by Safety FM.