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Who is Responsible for Independent Contractor Safety?

Editorial Team January 22, 2020 Comments Off on Who is Responsible for Independent Contractor Safety?
Who is Responsible for Independent Contractor Safety?

You’ve probably heard somewhere that OSHA doesn’t apply to self-employed independent contractors.

Before you get too excited, you need to understand that this is more of a complicated legal area than a blank check to ignore what that 1099 employee is doing.

There are two misunderstandings at work here: who this exemption applies to and what this exemption means.

Who Qualifies as an Independent Contractor?

Getting a 1099 might mean tax season’s harder, but it doesn’t make you an independent contractor…per se.

The Department of Labor (DOL) has started looking at the misclassification of employees as independent contractors for all sorts of reasons.

For instance, you can’t just call someone an independent contractor (poof, employee no more).  Or…you can, until regulators or lawyers come calling.

The standards for defining an employer-employee relationship are complicated. There are multiple tests to determine the answer, and which one’s appropriate depends on the type of law we’re talking about—tax law versus workers’ rights, for example.

Independent Contractors and OSHA

OSHA literature doesn’t typically use the term “independent contractor.” It uses “self-employed.”

There’s a pretty simple reason self-employed are exempted from OSHA. OSHA exists to protect workers from unsafe or “unhealthful” conditions that their employer might force them into using economic leverage.

If you work for yourself, that’s not a problem.

But the trend of misclassifying employees as contractors makes it a problem. To fulfill their mandate, OSHA has to decide who’s self-employed in reality, and who’s not.

For them, the important question is: who makes the decisions determining that person’s safety?

OSHA can and does consider many different factors when judging worker status.  However, the most critical item is work process.

When you hire a true independent contractor, you request a specific outcome.  You can specify what end result is acceptable and what’s not. But the contractor applies expertise and their judgment to arrive at the end result. You don’t get to dictate their process.

If you dictate someone’s process, you control their safety. Therefore, OSHA protects them.

Who is NOT Considered Self-Employed Under OSHA?

Anyone hired through a third party is not exempt. That includes general contractors, subcontractors, staffing agencies, temp agencies, labor leasing agencies, and more. These may not be your employees, but you may be responsible for their safety under OSHA.

Anyone who brings employees of their own to the job is not exempt. These are employers who share responsibility for safety in the workplace.

OSHA views anyone whose work process you control as an employee with all the safety rights and protections of a W2 hire. When employers challenged this practice, the courts backed them up.

What Are Your Safety Responsibilities with Independent Contractors?

Say you hire a truly independent contractor.  They:

  • Have no employees
  • Control their work process
  • Use skills and independent judgment
  • Deliver an agreed-upon result without being told how

That person is exempt from OSHA. What does that mean for you?

The exemption primarily means OSHA can’t regulate their actions. It does NOT mean all circumstances surrounding that independent contractor become invisible in the eyes of OSHA.

For example, you’re off the hook for some things, such as:

However, you should probably communicate with them on potential safety hazards—especially if the condition is out of the ordinary or hard to spot.

And you need to take any safety concerns they raise seriously. OSHA’s whistleblower protections may cover independent contractors. OSHA’s literature specifically and repeatedly names contractors and “all members of the workforce” as protected parties. That means if a self-employed worker lodges a safety complaint and you cancel their contract, you could be in hot water.

Plot Twist: Can Independent Contracts Cause an OSHA Violation?

There’s another concern with independent contractors: they can cause OSHA violations. And if other workers are exposed, OSHA’s multi-employer policy applies.

You didn’t create the problem, but you’re still responsible for noticing it, correcting it, and protecting other employees from it.

OSHA can’t cite the self-employed worker, but they can cite you.

So, what are you supposed to do about that?

OSHA recommends including terms in their contract requiring them to comply with OSHA standards.

This doesn’t get you off the hook with OSHA for any responsibility you bear, and OSHA still can’t be the one to enforce anything with the independent contractor.  You would have to enforce the contract yourself. But it does give you a mechanism for holding the independent contractor responsible and encouraging them to follow the law.

Need Safety Training?

Contractually requiring a DOL card is another potential tool. 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.

Send them our way.  We’re an OSHA-authorized online training provider with 20 years of experience. Our online OSHA 10- and 30-hour courses are economical and practical. Plus, they come with an official DOL card!

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