Are You Subject to OSHA?

April 13, 2006

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If you have employees, you are probably covered by OSHA. If you have none, you generally aren't covered, although in some cases businesses who use nonemployee workers such as independent contractors are still subject to OSHA.

The Occupational Safety and Health Act is a comprehensive law — it covers most employers. Unless you are sure your business is exempt, you should assume that the law applies to you.

As a practical matter, small employers (10 employees or less) are exempt from programmed inspections and injury and illness reporting. This doesn't mean that you aren't subject to other OSHA requirements, however.

An employer under the Act is a person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a State. You are probably subject to OSHA requirements if you:

are in control of the actions of your employee
have power over the employee
are able to fire the employee

The usual indications of an employment relationship, such as who pays the employee, are not part of the definition of an employer under OSHA. There are special circumstances, discussed below, if you are one of multiple employers or if you have workers other than employees.

Exemptions. The following employers are not covered by the OSH Act:

self-employed persons
farms at which only immediate members of the farmer's family are employed
those whose working conditions are regulated by other federal agencies under other federal statutes (This includes most employment in mining, nuclear energy and nuclear weapons manufacture, and many segments of the transportation industries.)
persons who employ others in their own homes to perform domestic services such as housecleaning and child care
churches and nonsecular church activities
states and political subdivisions (although some state plans cover public employees)
employers not engaged in interstate commerce (Interstate commerce is defined so broadly that it covers almost all economic activity in the United States. If you, as an employer, purchase materials that came from out of state or use the telephone or mails, you are engaging in interstate commerce for purposes of this Act.)

Small business exemptions. OSHA exempts small businesses with 10 or fewer employees from injury and illness reporting. Small businesses in specified low-hazard industries are exempt from programmed inspections.

The exempt categories are characterized by standard industrial classifications (SICs). Exempt categories include security and commodity brokers, dealers, exchanges; auto dealers and gasoline service stations; apparel and accessory stores; furniture, home furnishing, and equipment stores; eating and drinking places; miscellaneous retail; banking; credit agencies other than banks; security and commodity brokers, dealers, exchanges and services; insurance; insurance agents, brokers and services; real estate; holding and other investment offices; personal services; business services; motion pictures; legal services; educational services; social services; museums, art galleries, botanical and zoological gardens; membership organizations; private households; and miscellaneous services.

Multiple employers. Sometimes you may find that you are one of several employers at a job site who share authority or control over some employees. In case of an injury or violation, you need to determine who is liable for the damages or penalties. The OSH Review Commission considers many factors in determining whether the employer cited by OSHA had the responsibility for protecting the worker who was hurt or at risk:

Who is responsible for controlling the employee's work?
Who has the power to control the employee's work?
Who has the power to fire the employee or to modify the conditions of employment?
Who does the employee consider to be his employer?
Who pays the employee's wages?

The first three factors, related to the issue of who controls the work environment, are given particular emphasis in determining who is the employer under the Act. The employee's belief as to who his or her employer is and who pays his or her wages has some bearing on the employment relationship in these situations as well.