Sunday, November 26, 2006

Are You "Exempt" from OSHA?

OSHA has jurisdiction over workplace safety in the United States and its territories. However, when Congress passed the OSH Act of 1970 and created OSHA, a few groups were given an exemption from OSHA coverage. Here is a short list (not totally exhaustive) of those who are exempt:

1) Employees of the Federal Government – this includes people working in high hazard jobs, such as a press operator at the federal mint, members of the armed services, the ranger at the national park, and an FBI agent, are exempt from OSHA coverage. Even the federal OSHA compliance officer that comes to inspect your company for compliance with OSHA regulations is not subject to coverage by the very Act that created his or her job! Many federal agencies do voluntarily “adopt” OSHA regulations for their employees, but when push comes to shove and they are running low on funds or time, some of them are very quick to remember that they are exempt.

2) State, City & County Employees – because of prohibitions against something know as an unfunded mandate, the employees of the states, cities & counties (sometimes called public employees) are also exempt from OSHA coverage. So workers employed by a private company who are digging a ditch are regulated by OSHA’s excavation standards, but the city crew digging a ditch across the street from them is not. Like some federal agencies, many state, city & county agencies also voluntarily adopt OSHA regulations for their workers. And those States who opted to develop and administer their own State OSHA program (see previous blog for an explanation) must also include their state, city & county workers in their jurisdiction, meaning those agencies would no longer be exempt.

3) Certain Employee Groups Covered by Other Federal Agencies – for example, workers in a mine are covered by the Mine Safety & Health Administration (MSHA), and not by OSHA. There are also other work situations where other regulations could take precedence over OSHA’s, like with workers on a ship at sea, flight crews up in an airplane, and truck drivers rolling down the highway.

4) Family Members Working on Their Family Farm – technically these people are not considered employees of the farm. So even though OSHA has agricultural standards, these family members are exempt from OSHA coverage.

5) A Sole Proprietor with No Employees – if you have no employees, then you are not an employer, and OSHA only has jurisdiction over employers. There could be an exception to this exemption, however, if the sole proprietor hired temporary workers (like from a temp service) and directed their day-to-day activities.

6) Volunteers – if someone is working voluntarily for a company and receives no pay or compensation, they would not be considered an employee. Therefore, they do not fall under OSHA’s jurisdiction.

There is a general misconception that “small” employers are exempt from OSHA jurisdiction. While OSHA generally will not conduct a general scheduled OSHA inspection at a company with fewer than 10 employees, that company is not exempted from OSHA coverage. The small employer must still comply with all OSHA rules and regulations that apply to their workplace, and the company is also subject to receiving an OSHA inspection in certain situations, such as when an employee complaint is filed or a work-related fatality occurs. In certain cases, the small business may be exempt from implementing specific OSHA standards, like those requiring an OSHA injury/illness log or developing a written emergency action plan, but they must still comply with all other applicable standards.

My next blog posting will deal with the factors that trigger an OSHA inspection.