Under 1975.5, the term “employer” in section 3(5) of the OSH Act means a person engaged in a business affecting commerce who has employees, but it expressly excludes the United States and any State or political subdivision of a State. See the definition in 1975.5 for the exact statutory language and context.
Under 1975.5, the term “State” for purposes of the OSH Act includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands. See the definition in 1975.5 for the full text.
Under 1975.5, States and political subdivisions are not regarded as "employers" under section 3(5) of the OSH Act and therefore are not covered as employers by the Act, except where a State plan's approval requires certain assurances under section 18(c)(6). See 1975.5 for the explanation of that exclusion and the reference to state-plan requirements.
Under 1975.5(b), an entity is deemed a State or political subdivision (and not an employer) if it meets either of two tests: it was (1) created directly by the State so as to be a department or administrative arm of government, or (2) is administered by individuals controlled by public officials and responsible to those officials or to the electorate. See the tests in 1975.5(b) for the exact wording.
Under 1975.5(c), OSHA considers a variety of factual factors such as how administrators are appointed or elected, terms and removal procedures, source of salary funding, whether the entity earns profit, how functions are financed, whether it has government-like powers (e.g., eminent domain), its status under state and federal law, tax exemptions, tax-exempt bonds, how employees are regarded compared with other state employees, payroll sources, and employee benefits and restrictions. See the list of factors in 1975.5(c).
Under 1975.5(d), OSHA does not assign fixed weight to any single factor; each case is decided on its own facts, and no factor is automatically decisive without considering the totality of circumstances. See the explanation in 1975.5(d).
Under 1975.5(e)(1), entities normally regarded as not being employers (i.e., considered State or political subdivisions) include State Departments of Labor and Industry, State Highway and Motor Vehicle Departments, law enforcement agencies and penal institutions, judicial bodies, State University Boards of Trustees, public school boards and commissions, and public libraries. See the examples in 1975.5(e)(1).
Under 1975.5(e)(2), entities that would probably be excluded as employers—depending on specific facts—include harbor districts, irrigation districts, port authorities, bi-State authorities over bridges/highways/harbors, municipal transit entities, and State, county, and local hospitals and related institutions. See the examples in 1975.5(e)(2).
Under 1975.5(e)(3), entities normally regarded as not being State or political subdivisions—and therefore usually treated as employers—include public utility companies that are merely regulated by State/local bodies, businesses licensed under State/local law (such as alcoholic beverage distributors), and private business entities that perform certain functions for the State under contract (for example, gasoline stations performing vehicle inspections), unless unusual facts indicate otherwise. See the examples in 1975.5(e)(3).
A state hospital will be excluded from the definition of "employer" only if its facts show it meets the 1975.5(b) tests and associated factors (for example, whether its governing board is appointed by public officials, whether it has government-like powers, and how it is regarded under state law). See OSHA’s specific guidance on hospital service districts in the State hospital employer definition letter of interpretation (2001-08-27) and the factors/tests in 1975.5 for applying those criteria.
OSHA’s position is that unpaid volunteers who receive no monetary or other compensation are generally not "employees" under the federal OSH Act and therefore OSHA standards that apply to "employees" normally do not apply to them. See the Applicability to volunteers letter of interpretation (2005-05-13) for OSHA’s discussion of volunteers and the employment relationship.
If a charitable or non-profit organization employs one or more paid workers, the organization qualifies as an employer under the OSH Act and OSHA standards apply to working conditions of its employees; unpaid volunteers in the same organization may still fall outside federal coverage, but the organization itself is subject to OSHA requirements. See the Applicability to volunteers letter (2005-05-13) which explains that an organization with paid employees is covered by the Act.
OSHA’s federal position is that if the volunteers and other persons exposed to the forklift hazard receive no monetary or other compensation, OSHA would not cite the organization for failing to provide the training required by 29 CFR 1910.178(l); however, OSHA recommends providing that training for safety. See the Applicability to volunteers letter of interpretation (2005-05-13) for OSHA’s guidance on volunteers and powered industrial truck training.
OSHA enforces its standards and has inspection authority for employers on Indian reservations; tribes are generally treated like other private-sector employers and employees on reservations are entitled to the Act’s protections. See the OSHA jurisdiction on reservations letter of interpretation (1993-03-25) for OSHA’s statement on coverage of reservation workplaces.
Yes; under facts showing recruitment and supervision responsibilities, an organization can be treated as a joint employer for the Field Sanitation Standard, making it jointly responsible for providing required sanitation and water even if growers are also employers. See OSHA’s discussion in the Field Sanitation Standard applicability letter of interpretation (1994-04-25) which explains how joint-employer status can be applied in that context.
Under 1975.5, having employee payroll funded from State sources is a factor that supports regarding an entity as a State or political subdivision, but it is only one of many factors and not determinative on its own; the totality of facts controls. See the list of factors and guidance in 1975.5(c) and 1975.5(d).
Under 1975.5, exemption from State or local taxes and issuance of tax-exempt bonds are relevant factors that weigh in favor of treating an entity as a State or political subdivision, but they must be considered with other facts and are not alone conclusive. See the factors in 1975.5(c).
Under 1975.5(e)(3), a private utility that is merely regulated by State or local bodies is normally not regarded as a State or political subdivision and therefore is usually treated as an employer under the OSH Act; unusual facts contrary to that characterization could change the outcome. See the example in 1975.5(e)(3).
OSHA noted practical indicators such as boards appointed by elected local officials, staggered terms and removal only for cause, government-like powers (including eminent domain), the district’s statutory status as a political subdivision under state law, and tax/bond treatment; these factors supported treating the hospital service district as a political subdivision under 1975.5. See the State hospital employer definition letter (2001-08-27) and the factors in 1975.5(c).
Under 1975.5, performing functions for the State under contract does not automatically make an entity a State or political subdivision; such private entities are normally treated as employers unless the particular facts show otherwise—OSHA looks at the whole set of factors. See the example and guidance in 1975.5(e)(3) and 1975.5(d).