10 OSHA Compliance Myths Busted!
Safety Consultant with Sheldon Primus
10 OSHA Compliance Myths Busted!
April 5, 2023
In this episode, Sheldon busts 10 common myths about OSHA compliance. Some of the questions answered are: Can OSHA shut down a job? Does the spoil pile make an excavation deeper? Can OSHA cite you for not following your company safety policies? Is an excavation a Permit Required Confined Space? Does OSHA have enforcement quotas? Don't miss this informative show.....and Sorry in advance OSHA.
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Keywords: OSHA, OSHA compliance, Myth busting, Sheldon Primus, Sheldon, Primus, EHS, Health and Safety, Safety Officers, US government, excavation, trenching, fines, laws, Department of Labor, Safety FM, Environment, Sustainability, Workplace safety, Hazardous materials, Industrial hygiene, Occupational health, Safety regulations, Hazard prevention, Risk assessment, Chemical safety, Ergonomics, Health and safety, standards, Environmental policy, Workplace health promotion, Environmental health, Air quality, Water quality, Climate change, Green initiatives, Sustainable development, Government news, Public policy, Politics, Government services, Government programs, Public administration, Political analysis, Government leadership, Federal government, State government, Local government, Government accountability, Government transparency, Government efficiency, Government reform, Legislative updates, Government decision-making, Government technology, Government innovation, Public service, Workplace safety, Occupational safety, Safety training, Health and safety compliance, Safety management systems, Risk assessment, Safety audits, Safety culture, Incident investigation, Ergonomics, Hazard identification, Industrial hygiene, Safety inspections, Behavior-based safety, Safety program development, OSHA compliance, Safety policies and procedures, Job hazard analysis, Safety performance metrics, Safety certifications, Sheldon, Primus, Sheldon Primus, Safety FM, Jay Allen, Dr. Todd Conklin, Dr. Sydney Dekker, Safety Differently, HOP, BBS, COSS, COSM, Oil and Gas, Chemical Manufacturing, Medical Compliance, Human Resources, HR, Podcast


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[00:00:00] Sheldon Primus: Well, welcome to the Safety Consultant podcast. 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, we talk about occupational safety and health stuff, try to get you guys ready for getting out there, doing the job, protect the people. That's the stuff we do, right? Oh, well, welcome again to another week. I'm actually getting close to my uh podcast anniversary coming up and I'm mulling an idea in my head. So, um 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, right? Uh, so when this new thing happens, when I do the thing, you'll be prepared. Uh you'll actually be able to have a notification that I have released a new episode, and that's important to do with my show because unfortunately, I am still, well, not, unfortunately, what am I saying? Very fortunately, I am still an active safety consultant. So that means I have to do what my clients need me to do. And so sometimes I'm training, sometimes I'm doing some, uh, consulting work such as mock OSHA audits and a few other things, writing programs, you know, the consultant stuff. In doing that, uh, and being a podcast that is self-funded, I kind of, sometimes I may need to switch my days. If, of course, I had a sponsor, I'm gonna, you know, do what the sponsor needs and we'll, we'll, we'll hit the, the amount that they need, obviously, but I'm self-sponsored so I got some leeway. Yeah. So anyway, um, if you are not subscribed, then if I'm not uh have a released on Wednesday and it comes out on a Thursday, or even earlier, you won't get it until you come back on Wednesday and you may have missed some information. You don’t wanna do that, you'd be behind. Nobody wants to feel behind, right? So that is just not, um, it kind of reminds me, uh I'm gonna like do my normal digression, but uh, I am such a fan of, uh, Disney, if you remember Lion King, when Timon and Pumba, who were friends of, of course, the Lion King, and he said, “leave your past in the behind” But they're, instead of saying that they said, “leave your behind in the past.” Oh, yes, I love that one. 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 um I'm actually gonna go over like a, 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, um with, through clients and through training and then also I am a 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 a OSHA recordkeeping class, sometimes they would just say the OSHA number that is associated with record keeping. Uh, the, the actual, um, course number is what it would be. So I teach those as well and I got a pretty good familiarity with OSHA. Uh 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 lagniappe, which is a little extra, but I got at least 10. So 10 is where I'm going for, and I'm even gonna list this uh heading of this title as you've probably seen already, the top 10 most widely spread OSHA mist-- myth. I'm probably not gonna 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, uh, my information is gonna come from several sources and I'll, um, I'll direct you to those sources too. So you could 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 gonna see a list and list the list of uh, many people that will respond to that answer. Uh I've got one of those lists which is coming from a law firm, and uh this is uh what the, 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 all uh, uh, administrative law judge and they would 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 uh someone says this, a compliance officer loses their wings. OK. 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 manmade 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 wanna 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 gonna see paragraph B, and in paragraph B, there's a whole bunch of definitions. And this is the literal definition for an excavation, “any manmade cut, cavity, 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, of your excavation, let's say it was from ground down 10 ft., they're saying if you have a two foot spoil pile, your excavation now is 12 ft. 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? Hm. Consider that, are you in  excavation? No. Cut it out. So what happens is you're gonna have a spoil pile that is next to an excavation that's 10 ft., but the excavation is not gonna go that extra two feet of the spoil pile and now be 12 ft. 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. OK? So just block it out of your brain. Your excavation is gonna 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 gonna throw in another one here. So let's call this myth number three. Um, so, I’m even throwing off my own system because I've got this written down. So 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 uh, 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 excavation are the same thing. But definitely listen to me, they have similar hazards, you're gonna almost treat them the same. There's different characteristics, obviously, between soil and vessels, but you're gonna treat them mostly the same. You want to monitor the atmosphere, you wanna make sure that people in there are trained, you wanna have your uh your ways of making sure that your uh workers could get rescue promptly. I'm not saying that you're gonna treat it as if the same, just just don't use that nomenclature that is an excavation and is a confined space. No. All right, confined space is 3 things, one, you could get in and out of the space, and it calls it limited ways of getting in and out of the space, and this isn’t in order. Uh secondly, the space wasn't meant for continuous human occupancy. And then third, uh the other part of it is that uh, you can physically get into the space, they call it whole bodily entered. So with that definition, you know, you're thinking of, uh 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 gonna be also uh there as well. So you would 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 confined space both have their own definition. So again, they are going to be uh 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, your radio. OSHA cannot shut down a job site, I told you guys that. Secondly is, oh, I already give you guys that one. So here's number four, I already give 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 remember I asked you that other one before. So here's the question. Can OSHA cite you on only your company policy if you're, you're uh here's an example, uh you're in construction and for OSHA fall protection starts at 6 ft with construction, most construction. It depends on if you're a scaffold, if you're doing steel erection and that gets a little different. But let's say you're just doing, you know, general construction activities, 6 ft is where fall protection starts. But your company may have a policy that says let's do 5 ft because you wanna make sure that it does not that or more stringent. So if your workers are working and you got your company policy at 5 ft and OSHA shows up and they see your workers at 5 ft 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, uh for those people that are saying that, cut it out.  
All right, here's another one. Uh, I do hear a lot about the 10 and 30 hour classes, and I told you guys earlier just a few minutes ago that uh I am one of those people that can train through my um 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. Uh So a lot of people would like to send all their workers to the 10 or 30 hour courses, and uh the 10 and 30 hour courses are those courses that are used for making your workers kind of aware of uh, OSHA standards and then also just hazard awareness more than anything. So, right, in uh, the uh, the overview, if you would, of the program, it is they'll tell you specifically that uh 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 uh, safety training, uh, 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 were really supposed to uh 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 as our role as consultants, or if you are the consultant for your company, maybe not on your own, is to provide uh 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 gonna be doing. But it's still not compliance training because then you're gonna get more specific on a certain hazard, and that, now is gonna take on its own characteristics. You can't squeeze that into a 10 or 30. So again, 10, 30 hour training is not compliance training.  
[00:18:04] All right. So we got five out of there. This is our halfway point. So here we go, let's do the, the halfway stretch. Hm. Stretch it out. Yeah. There you go. Mm mm mm. Stretch. Twist one, twist two. All right. Hm. 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, now 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 uh though we have a compliance um regulation for, let's say construction, uh then uh 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 scaffold, you're gonna have to comply with construction scaffolding, which is gonna be sub part L in 1926 in 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 gonna be in the 1920, uh 1910 role and there's subpart D, you're gonna see a section that says scaffolding and that's gonna lead you right back to uh going into the construction part and subpart L. So in saying that you can't look at a site, um fall protection I gave you guys earlier, if you're in general industry and you see someone at a fall, um I should say someone at a unguarded side or edge at 6 ft, uh that's construction standard. You already are breaking the law, because your standard is 4 ft, 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 uh power generation and distribution, uh you now, if you're in a field in general industry, you got a subpar R, it's gonna tell you about power generation distribution, but if you were to go over to subpart S which is electrical safety uh in, in general industry, you are in the wrong subpart, but that's not, that's not where you are. You gotta get stay in your lane. Uh you're, you're not there. Uh So therefore you gotta 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 in construction. Because now maintenance activity in construction can lead you to, uh 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 gonna actually give it its own thing right there. So that's another one. Let's call that seven, OSHA does not have a department if someone's stamping out boards that says OSHA approved. Uh, 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 I wanna just go ahead and say I am, uh you have the official OSHA boards for your scaffold. So there you go, that one gets its own. 
So, number eight, uh I do hear a lot of people say that you could only have 5000 lbs of anchor point per person on a personal fall arrest system. So, uh, there's three major ways of protecting your worker from a fall to below hazard. That's gonna be, uh, guard rails, engineering control, a safety net, another engineering control, or personal fall arrest system, and that's gonna be PPE, personal protective equipment. Uh, that system is threefold, you got an anchor point, you got your Lanyard or Lifeline, and then you got your full body harness holding the worker in and they're connected by D-ring, uh, the from the, 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 gonna be the subpart related to fall protection in construction, subpart D in general industry, uh, there is a, the, um, consideration for if you can't, uh, have 5000 lbs of anchors, you could actually rerate it down. So what you would do, and this is a specific way to do it though. So it is possible though to go below 5000 lbs and the way you would do it is the personal fall arrest system, system, uh is gonna rely on uh, dispersing the actual weight of that individual as they fall. And that weight dispersement is gonna be through your, uh, your full body harness. So that full body harness now is gonna have, uh, it's, it's gonna, it's the requirement in section, uh 501. Actually, it's gonna be section 502, and it's gonna be paragraph D, and when you go all the way down to subparagraph 16, you're gonna see in item two that the limited maximum arrested force of an employee is 1800 lbs uh, when using the full body harness. So going back to section 15, you're gonna see where, uh, the anchor point has to be either 5000 lbs 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 should say downrate, your protection, uh, to actually be 3600 lbs, not just 5,000 lbs. However, there is a real, real important consideration. So you would have to go to, uh, your, uh, paragraph D subparagraph 15 and then you're gonna see item one and two. So first you're gonna have to have that safety factor two, and then secondly, you're gonna have to have the job done under the qualified person. So qualified person is gonna be that person that is going to understand, uh, that they could, uh, take that rating down because of, you know, wherever they, they apply your anchor point, they're gonna really have to do some math on that one. That's why it's a qualified person. So that's the, the idea behind the anchor point. So you're gonna have to have it as a complete part of, you know, full body harness, lifeline, anchor point, and then the anchor points gotta be, uh, something that a qualified person is gonna not only supervise, but they're also gonna be the ones who design, uh, the new way to anchor that person to downrate or rerate that, uh, from 5,000 lbs to 3600 lbs.  
All right, here's another one. Let's get us to number, let's see, number nine, I believe we're on. Uh, and can OSHA fine employees individually? Um, not usually, that's your answer. Uh, there is a provision in, uh, section 17 of the Act, uh, for if you lie to OSHA. Then they can fine you individually. So if you now give them some uh, false information, uh, that's gonna be, uh, when you go to the Act, the OSHA Act, you want to go to section 17 under penalties, and then I believe it's paragraph G. Yep, paragraph G, I got it here. Uh, whoever normally makes a, any false statement represents or certification in any application record report and blah, blah, blah, you're gonna get not more than $10,000, or by imprisonment, not more than six months or both. So that's when OSHA can take, uh 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, uh, hide any kind of, uh, reported injury and tell them to go, the injured person to go to their own, uh, doctor. At that point, yeah, you're, you're, you're probably gonna be falsifying your records on your OSHA recordkeeping logs. Uh, that's gonna get you a $10,000 fine, uh, if they find out. So, yeah, that is when you can get an individual fine, as opposed to a fine with the corporation itself. So now we are up to number nine. So, uh, number nine, that was, can OSHA fine the employees.  
Number 10, it's gonna 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 gonna use that money for like, you know, pizza parties, I don't know, whatever it is. Uh, but that is not the case. So actually it's actually, it's in the same section of the Act. So, if you go, um, wherever you find the OSHA Act, you could go to osha dot gov, uh, type in O-S-H Act and I'll get you, um, to where you need to be. And it's still section 17, but on the very last sentence, uh, it's gonna be paragraph L, tells you civil penalties owed under this act shall be paid to the Secretary of Deposit and the Treasury of the US and shall accrue the US and may be recovered by civil actions. Uh, but it's generally going uh that, 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 I was gonna give you a lagniappe, one extra, right? So this is 11, this is the extra, it's a big one. Uh, OSHA does have quotas for enforcement. Uh, if you were to say that to a compliance officer and thye’re like, oh, we don't have quotas. Yes, they do. They do have quotas for enforcement, you could see it. Uh So all you would have to do is open up the budget, uh the OSHA budget, which is gonna be in the Department of Labor, uh 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 uh enforcement units is basically a tiering of, uh different types of inspection. So, um easy inspections for OSHA would be like a construction inspection. They could do that in, you know, a couple of hours in some cases. Uh, whereas if there was a fatality or a process safety management instru- um investigation, chances are that's gonna take you several days, sometimes weeks. So that's gonna take the compliance officer more time, energy and effort. So the enforcement unit wise, OSHA says that activity is gonna weigh more than the activity of doing inspections and construction sites. So they are looking to increase their enforcement units by 60,822. Uh, so that is what they're going to be doing activity wise, but then also in the budget, it tells you where they're gonna be doing these inspections and that's gonna be in their high impact industries. Uh, those people that are gonna 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, uh That coding itself is a grouping of, uh 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, uh everyone that does this type of work, they're gonna be exposed to the same type of hazards. So OSHA now literally has a quota. So you're gonna 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 and OSHA’s gonna be out there so they can fill their quota.” I don't know if that part's true. But I just know that, uh, if you look at the enforcement units you can actually see, uh, the activity. So, uh, let's see, I'll pull that up real quick. Uh OSHA dot gov, forward-slash enforcement, forward-slash 2021, that's the most recent, uh hyphen enforcement hyphen summary, right? So that's the actual uh URL for you to find their enforcement units. And, uh, 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, uh, 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 gonna be an anniversary month for us. So that's gonna be really cool. So, if you have not subscribed to the podcast, please do so that you're gonna get to hear the changes. All right gang, you got some more information. Now it's your turn. Go get ‘em. 
  
[00:32:59] Announcer: 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.