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Safety Sense: OSHA Myth Busters

May 14, 2008

I use the broadcast networks to get my veg-out time and the Discovery and History channels to get a little education. One of my favorite Discovery Channel shows is “MythBusters,” where the show’s experts attempt to separate truth from urban legend through their science experiments and demonstrations. While the show has a lot of entertainment value, it also teaches us that some of the stories we have heard for years just aren’t true.

In this column, I will present a safety version of this popular show. We will look at two of the OSHA myths I hear while giving presentations throughout the country--we’ll call it “SafetyBusters.”

Myth No. 1

“OSHA is now self-funded, and it has to have your fines to survive.”

Safety professionals should learn the answer to this myth as part of their initial OSHA training. Let’s bust this OSHA myth by turning to the Williams-Steiger Occupational and Safety Health Act of 1970, or OSH Act. This act gave each state the right to either develop its own workplace-safety program or allow the federal government to control workplace safety in that state. Approximately half of the states chose to have their own plan; the balance is covered by federal OSHA.

If a business in a federal OSHA-controlled state gets cited for safety violations, the funds collected go to the general U.S. treasury. If the citations take place in a state-plan state, then the funds go to the general treasury of that state. The federal OSHA states are totally funded by the federal government within the federal budget. The state-plan states receive approximately 50 percent of their operating budget from the federal government, and the state picks up the balance. Some states may bring in enough from fines to make up the difference while others may not.

To track each state’s progress, the federal OSHA bean counters keep a close eye on citation counts and amounts that are issued. They look for patterns to make certain one state or federal office isn’t out in left field in comparison to the general trend of citations. In one of my classes at the OSHA Training Institute, a state-plan state OSHA employee said that his state had been under pressure awhile back from federal OSHA to raise the average of its fines per visit. Evidently, they didn’t think the state was getting the attention of its employers because fines weren’t high enough. Keep in mind that OSHA is an enforcement agency–and “enforcement” generally means some type of penalty has to be issued.

Myth No. 2

“You can call OSHA to visit your workplace and the agency will inspect it without citing you for anything it finds wrong.”

This is another statement we hear during OSHA training. Let’s clarify some of the confusion in the statement itself. The federal mandate for OSHA states that it must not only enforce its regulations but also offer some training and consultative assistance to businesses to aid them in providing a safe workplace in compliance with the OSH Act. Every state and U.S. territory has an agency that will offer assistance to small businesses of, generally, 250 employees or less. This assistance usually involves offering seminars and free consultations by the agency’s consultants. In addition to the consultative agencies, some of the OSHA offices provide training in certain areas.

I have worked with these consultative programs in several states and have spoken to many companies who have utilized these free services. Overall, results are mixed.

My first experience with an OSHA consultant was a guy who had been an electrician, and the only things he looked for in the inspection were electrical-related. He spent around four hours at the facility and found eight things in violation--all electrical. The facility he was inspecting was four blocks long--and it took me four and a half days to cover the specifics of the buildings. In the end, I wrote more than 14 pages of notes to assist the owner.

Another construction client I obtained had previously used a state consultant to assist on a project. Getting the paperwork back to the consultant with all of the t’s crossed and i’s dotted was a nightmare that took almost two years, which is why the company hired us to close out the paperwork.

On the other hand, I have worked with some very capable consultants. I recently worked with a state consultant in a Southeastern state who gave excellent advice in regard to that state’s specific issues. I continue to use this consultant to get more specifics on how that particular state may look at certain regulations.

The free services of these state agencies, however, have a catch: When you request a consultation and schedule a visit to your business, you agree to correct any serious violations that are found. I know that none of you want to have any hazards that could harm your employees and would do everything possible to correct a hazard, but what if this item was something that OSHA just didn’t understand? What if doing it a different way could actually cause more harm? A good example is head protection for surveyors. When a surveyor looks through an instrument, it is nearly impossible to get close enough while wearing a hard hat. He (or she) has two options: reverse the hard hat or remove the hard hat for a period of time. If the job requires hard hats, the second option would be a violation, and unless the hard hat is certified to be worn backward, the first option would also be a violation. If the crew member was told that neither option would be accepted and he had to wear a hard hat, he couldn’t do his job efficiently. This issue could take months to iron out.

And what happens if you don’t correct the item in the time period the consultant gives you? The agency will generally write you a very demanding letter once, twice or even several times. If you still don’t make the correction or if the cost to correct the violation is beyond your financial means, the consulting agency will turn you over to OSHA for compliance! That’s right--the consultant will turn you over to the same people you are trying to avoid by calling for assistance. These consultative agencies don’t like to emphasize this fact, but if you read all of their literature, you will find this little surprise someplace at the end. The fact is that it wouldn’t be difficult for OSHA to consider your non-compliance with the consultant as a willful violation. And, by law, willful violations start at $70,000 per item, although deductions exist based upon the size of the company, experience and the gravity of the hazard. The agencies say these turnovers don’t happen much--and I agree--but I know you don’t want to be the poster child for the time that it does get turned over.

I hope that busting these myths will help you understand OSHA a little better. Knowledge is your best weapon to prevent injuries--and to protect your company from an OSHA visit.

 

Sidebar: The OSH Act

To read the Williams-Steiger Occupational Safety and Health Act of 1970, go to www.osha.gov . Search for “OSH Act,” and click on “Go.” Click on the link to “OSH Act of 1970.” You can then read each section or open the entire act at once by clicking on “Complete OSH Act Version (“All-in-One”).

Sidebar: State-by-State OSHA Guide

To see which states have their own plans and which are controlled by federal OSHA, go to www.osha.gov. Click on the map on the left-hand side of the page, then click on any state. Each state’s Web page will either list the federal OSHA offices for the state or note that it is a state-plan state and provide a link for the state’s offices.