Who is Responsible for Independent Contractor Safety?

There’s a difference between an employee and an independent contractor. Employees typically work regular hours and are subject to their employer's direction. Independent contractors work for themselves and aren’t subject to the same level of control.

Even though independent contractors may not have the same rights as employees, they still deserve safe working conditions. But does OSHA apply to them? Let’s dive into the self-employed exemption and discuss who it covers and why employers still have responsibilities, even when hiring independent contractors.

Definition of an Independent Contractor

In the most general definition, an independent contractor is a non-employee contracted to perform work for or provide services to another entity.

However, it’s not enough just calling someone a non-employee or using a 1099 tax form instead of a W-2. Because many employers try to use this technique to dodge tax burdens and worker protections, the Department of Labor (DOL) has taken a closer look at the misclassification of employees as independent contractors in recent decades.

The standards for defining an employer-employee relationship are complicated, and multiple tests are used to determine the answer. What’s appropriate will vary based on whether you’re talking about tax law, Fair Labor rights, or OSHA protections.

In most cases, however, it boils down to whether an individual has control over their work process. When you hire a true independent contractor, you request a specific outcome.  You can specify what results are and aren’t acceptable, but you don't get to dictate their process. The contractor applies their expertise and judgment to arrive at the desired result.

What Does OSHA Say About Independent Contractor Safety?

Unfortunately, this is the wrong question for any kind of meaningful answer. OSHA literature typically avoids the term "independent contractor." Instead, it uses "self-employed."

Are Self-Employed People Exempt From OSHA?

Yes. Self-employed people are one of the groups that is explicitly exempt from OSHA’s jurisdiction.

There's a pretty simple reason for this – the Occupational Safety and Health Administration exists to protect workers from any unsafe or "unhealthful" conditions that their employer might force them into by threatening their ability to support themselves and their families. If you truly work for yourself, you can’t be leveraged into an unsafe work situation. It simply becomes a choice.

Most employers are aware of the self-employed OSHA exemption, but they misunderstand what it means. There are two key questions to understanding an employer’s responsibility for contractors working under them:

• How does OSHA decide who is and isn’t exempt due to self-employment?
• What does that exemption actually change about workplace safety?

Many employers will be chagrined to realize that employing true contractors on a high-risk worksite can make their situation more unclear and difficult to navigate, not less.

How Does OSHA Judge Who Is Self-Employed?

Due to the self-employed exemption, OSHA has to decide who's legitimately self-employed in order to properly fulfill their mandate.

For them, the important question is: who makes the decisions that determine that individual's safety?

OSHA can and does consider many different factors when judging worker status, but the most critical item is the work process. If you dictate how someone works, you ultimately control their safety.

Individuals only qualify for the self-employed exemption if they completely control the way that they work.

Who is NOT Considered Self-Employed Under OSHA?

The rule above really covers it all, but people will try to find loopholes. Over time, OSHA has clarified circumstances under which someone does NOT fall under the self-employment exemption.

This is true of:

• Third-party hires. OSHA does not allow you to avoid liability for independent contractor safety by hiring people through general contractors, subcontractors, staffing agencies, temp agencies, labor leasing agencies, and other intermediaries. Even if they’re not your employees, you may have responsibilities for their safety according to OSHA’s Multi-Employer Citation Policy.
• Contractors that bring employees. OSHA considers any “independent contractor” who hires others to be an employer and, therefore, is subject to the multi-employer policy for determining contractor safety responsibility.
• Anyone whose work process you control. Regardless of what you call them, OSHA views these individuals as employees with all the safety rights and protections of W-2 hires. Employers have challenged this practice only to have the courts back OSHA up.

Do Independent Contractors Have to Follow OSHA’s Rules?

Unequivocally, no.

First, OSHA has to consider you self-employed, though. Remember, that means you:

• Have no employees
• Have full control over your work process
• Apply independent judgment to your work
• Deliver an agreed-upon result without being told how

If you meet those criteria, OSHA standards don’t apply to your actions. As a self-employed person, you have no responsibility to follow any of OSHA’s mandates, including:

• Wearing Personal Protective Equipment (PPE)
• Monitoring or reducing exposure to hazardous substances
• Completing workplace safety training

OSHA cannot cite self-employed individuals for violating their standards, and self-employed individuals can’t be held responsible (by OSHA) for endangering the safety of others.

Unfortunately, this can mean that the contractor’s liability is effectively transferred to the nearest employer, who still can’t control the contractor’s actions.

What Is an Employer’s Responsibility for Contractors On-Site?

When a self-employed individual is present on an employer’s worksite, the self-employed exemption means they can’t get in trouble with OSHA. It does NOT mean all circumstances surrounding that independent contractor become invisible to OSHA’s eyes.

What does this mean for the employer?

Responsibilities for the Contractor’s Safety

The good news for an employer in this situation is that you’re off the hook for some things, such as:

• Recording injuries or illnesses sustained by the self-employed
• Purchasing and maintaining personal protective equipment (PPE) for the self-employed
• Providing the self-employed with safety training at no cost

Any unsafe actions that don’t affect others are not your problem as far as OSHA is concerned, but you may need to consider other ways it opens you up to liability.

Also, any unsafe conditions you create may remain a concern. You should communicate with self-employed workers about potential safety hazards, especially if the hazardous conditions are out of the ordinary or hard to spot.

Whistleblower Protections

OSHA's whistleblower protections can apply to independent contractors. OSHA's literature specifically and repeatedly names contractors and "all members of the workforce" as protected parties for anti-retaliation.

As a result, you need to take any safety concerns raised by a self-employed individual seriously and avoid any actions that could be seen as retaliation for bringing up the issue. If a self-employed worker lodges a safety complaint and you cancel their contract, you could be in real hot water.

Responsibilities to Others’ Safety

For employers that are beholden to OSHA, an independent contractor’s safety is the least of their concerns. They need to be more concerned about the risks that a contractor poses to others, as well as the employer’s responsibility for contractors’ actions, should the worst come to pass.

OSHA can’t cite a self-employed worker for failing to follow OSHA standards, even if their actions cause dangerous conditions for others onsite. They can, however, cite any employers working near or with them for failing to notice the problem, correct it, and prevent it from happening again.

In other words, self-employed individuals can cause OSHA violations that can bounce back on you.

What are you supposed to do about that?

How to Introduce Contractor Liability for Workplace Safety

OSHA recommends including terms in a self-employed person’s contract requiring them to comply with OSHA standards on your job site.

This won't get you off the hook with OSHA for any responsibility you bear, and it doesn’t grant OSHA any ability to compel the independent contractor to take action. However, it does give you a mechanism for holding the independent contractor responsible and encouraging them to comply with OSHA standards.

Another good idea is contractually requiring independent contractors to hold a DOL card issued in the last two to three years. This ensures that they’re familiar with major OSHA standards in your industry and have gotten the bare minimum of up-to-date workplace safety training.

Your independent contractor can't follow OSHA standards if they're not familiar with them.  A recent DOL card can put your mind at ease and enable them to keep your worksite safe. While a 10-hour DOL card is usually appropriate for non-supervisory workers, you can require them to complete a more thorough 30-hour Outreach course instead.

Where Can Contractors Get Online Safety Training?

Send them our way.  We're an OSHA-authorized online training provider with 25 years of experience. Our online OSHA 10 and 30-hour courses are economical, practical, and come with a durable plastic wallet card they can use as proof of recent training.

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