Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at

November 18, 1999

Patricia A. Goodavage
Wilmington Glass Company
216 Martin Luther King, Jr., Blvd.
Wilmington, DE 19801

Dear Ms. Goodavage:

Thank you for your letter dated October 29, 1999, requesting an interpretation regarding the small employer exemption to OSHA's injury and illness recordkeeping requirements. 29 CFR Part 1904.15 states "An employer who had no more then ten (10) employees at any time during the calendar year need not comply with any of the requirements of this part except the following: (a) Obligation to report under Part 1904.8 concerning fatalities or multiple hospitalization accidents; and (b) Obligation to maintain a log of occupational injuries and illnesses under Part 1904.2 and to make reports under Section 1904.21 upon being notified in writing by the Bureau of Labor Statistics that the employer has been selected to participate in a statistical survey of occupational injuries and illnesses."

Furthermore, the Recordkeeping Guidelines for Occupational Injuries and Illnesses states "For the purposes of the small employer exemption, the employment figure refers to the calendar year immediately preceding the year for which records will be kept. Also, the test for the small employer exemption is the number of employees in the entire firm, not the number in an individual establishment."

As you can see from the above statements, the small employer exemption is based on the number of employees at any one time during the year and not on the total number of individuals that worked at the firm throughout the year. In other words, the exemption is not dependent on the number of W-2 statements generated for the calendar year but is determined by the number of employees employed on any given day during the year. If there were 11 or more employees employed on any given day during the previous calendar year, the small employer exemption does not apply. Please keep in mind that one should count the number of persons on the payroll rather than the number of persons physically present and working on a particular day. For example, if there are 12 individuals on your payroll, and only nine of those individuals work at any given time, the appropriate number for determining if the small employer exemption applies is the 12 employees on the payroll.

I hope you find this information useful. If you have any further questions, please contact the Division of Recordkeeping Requirements on 202-693-1886.


Cheryle A. Greenaugh
Directorate of Information Technology