Who Is Not Covered By OSHA?

Introduction

The Occupational Safety & Health Administration (OSHA) is the federal agency tasked with enforcing workplace safety standards and regulations in the United States. The OSHA operates as a division of the US Department of Labor (DOL). The agency’s authority and general regulations come from the Occupational Safety and Health Act (OSH Act), a federal law passed in 1970 to protect an employee’s right to work in a safe and healthy environment.

Although every worker should be able to work in a safe environment, not all workers are covered by the OSHA. The following types of workers may be covered by the OSH Act, but they aren’t covered by the OSHA:

• Federal government employees
• State/local government employees
• Self-employed workers
• Farms that only employ immediate family members
• Industries for which other federal agencies have jurisdiction over workplace safety conditions (e.g. energy, mining, etc.)
• Non-employees such as independent contractors, partners, interns, and volunteers

Federal Government Employees

The OSH Act created a dedicated program for federal government employees. Under Section 10, the head of each federal agency is responsible for providing a safe and healthy workplace for the employees in their agency. As such, most safety inspections and employee complaints are handled internally.

The OSHA informally monitors federal agencies and can conduct a safety inspection in response to a federal employee’s report of workplace hazards, but they don’t impose any fines or penalties for safety violations.

There is on major exception to this rule, and that’s the US Postal Service. A 1998 amendment to the OSH Act placed the USPS under the jurisdiction of the OSHA.

State and Local Government Employees

Employees who work for state and local government agencies aren’t covered by the OSHA, but they’re still protected by the OSH Act providing they work in a state that has an OSHA-approved workplace safety program.

A state-sponsored, OSHA-approved workplace safety program is required to offer at least the minimum standards provided in the OSH Act, though many programs choose to impose higher standards that benefit employees. US territories and states also have the right to develop programs specifically for state and local government employees.

Self-employed Workers

Individuals who are the sole proprietor and employee of their business are not protected by the OSH Act or subject to the jurisdiction of the OSHA. It’s assumed that self-employed individuals can manage their own safety, as there isn’t a supervisor or employer that can dictate their work environment.

Family Farms

The OSH Act does not cover family-owned farms that only employ immediate family members. That said, a property owner is liable for what takes place on their property, so the farm-owner may be held personally liable if an immediate family member is injured or killed on the farm.

Federally-Regulated Industries

There are a handful of industries that operate under the control of a dedicated federal agency, and these industries are exempt from the OSH Act. Examples include mining (covered by the Mine Safety & Health Administration), airports (covered by the Federal Aviation Administration), and nuclear power plants (covered by the Department of Energy).

Non-Employees

The OSH Act is clear about an employer’s workplace safety responsibilities and the protections afforded to employees, but it’s a bit of a legal gray-area when it comes to defining what actually qualifies as an employee. That’s an important distinction because the OSH Act covers employees, and by extension doesn’t extend to workers who aren’t employees.

The OSH Act defines an employer as one who is engaged in a business affecting commerce and has employees, and an employee is regarded as anyone who is employed by the employer.

As that definition is fairly ambiguous, the courts have established a 13-question test to assess whether or not a worker should be classified as an employee:

1. Does the employer have the right to control the manner and means by which work is accomplished?
2. What is the level of skill required to perform the job effectively?
3. Does the employer provide the required tools and instruments to complete the job?
4. Is the worker required to complete their work at the employer’s property?
5. What is the duration of the relationship between the employer and the worker?
6. Does the employer have the right to assign new projects to the worker, and does the worker have the right to delegate jobs to people working under them?
7. To what extent does the employer cover when and how the work is performed?
8. What is the method of payment between the employer and the worker?
9. Does the employer provide and pay for the worker’s assistants, or does the worker hire and pay their own assistants?
10. Is the work being performed a regular part of the employer’s business?
11. Is the employer in business?
12. Does the employer provide benefits to the worker?
13. What is the worker’s tax treatment?

The answers to these questions should be considered collectively rather than individually. If the test indicates that the worker is an employee, then the worker is covered by the OSHA. If the worker doesn’t qualify as an employee, they’re likely an independent contractor, partner, intern, or volunteer, and they are not covered by the OSHA.

Independent Contractors

An independent contractor is a worker who provides services to another business that’s subject to an agreement or contract. The contractor is their own boss, has the right to do business with whomever they choose, is essentially considered a self-employed worker. As such, independent contractors aren’t covered by the OSHA.

Partners

Owners are not subject to the OSHA. If all of the workers in the business are part-owners (like in a cooperative corporation where everyone is a partner), then the business doesn’t have any employees. The courts have set the following standards to determine if a member of a business is a partner:

• Partners should have a seat on the Board of Directors
• Partners should have control over their work
• Business decisions are made by supermajority voting
• The partner can only be fired subject to a voting process

Interns

Interns aren’t covered by the OSHA, though it’s not uncommon to see employees who are misclassified as interns. To qualify as an intern, the worker and the internship program should meet the following criteria:

• The internship program offers training that’s comparable to a vocational school
• The internship program is for the intern’s benefit
• The intern doesn’t replace employees
• The employer doesn’t substantially benefit from the intern’s work
• The intern isn’t entitled to a job at the conclusion of the internship
• The internship isn’t paid
• The intern works under the close supervision of an employee

Volunteers

Generally speaking, this only applies to charitable, humanitarian, and religious organizations, since commercial entities can’t have volunteers. To qualify, a volunteer should perform their work without any expectation, promise, or receipt of compensation.

Need Help With An Employment Law Issue?

The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.

Call our Employment Law team at (480) 464-1111 to discuss your case today.