December 7, 1999

Bruce Stagge
Mechanical Manager
Pinnacle Pigging Systems, Inc.
2720 East 1700 North
Layton, Utah 84040

Dear Mr. Stagge:

Thank you for your faxed letter dated June 25, 1999 requesting our response to several issues concerning independent contractors working back and forth across the US-Canadian border. I will respond by citing the regulations from 29 CFR Part 1904 and the Recordkeeping Guidelines for Occupational Injuries and Illnesses (Recordkeeping Guidelines), by page and Q&A number(s), whenever possible.

Scenario: An independent contracting company founded in Canada and operating in the United States supervises all of its employees. In the USA there is one corporation (firm) with one manned location (establishment) and two locations that only warehouse equipment. Work is done in refineries all across the USA and Canada and employees, no matter where they live, report over the phone to central dispatch and are mobilized to the next job site anywhere in the USA, Canada, or elsewhere in the world. Jobs last from 2-3 days to 1-2 weeks. Canadian employees enter the USA with a class L-1B multiple entry card issued to them by the US INS. When their job is complete, they are mobilized to another job or back to Canada.

Question 1: When Canadian employees are brought into the United States for a job, do they count towards the total number of employees in the United States? As in, if a firm has fewer than ten employees throughout a calendar year, no OSHA 200 log need be recorded.

Yes. The OSH Act's coverage is defined in Section 4(a) in terms of two criteria: Work activities and geographic areas. The activities covered relate to "employment performed in a workplace." The boundaries of geographic coverage are limited to the United States and its territories. The employment described in Section 4(a) is not limited to the execution of specific work assignments. Section 2 of the Act addresses injuries and illnesses arising out of "work situations." Sections 2(b)(l), (2), and (4) of the Act refer to "places of employment" and the provision of safe and healthful "working conditions." Section 2(b)(7) of the Act deals with preventing employee illness as a result of their "work experience (Recordkeeping Guidelines Page 2, Section A).

In addition, as you may be aware, there are 25 States and territories with their own OSHA approved occupational safety and health plans (See enclosed list). The current 29 CFR 1952.4 requires that such States with approved State plans under section 18 of the OSH Act (29 USC 667), must adopt recordkeeping and reporting regulations which are "substantially identical" to those set forth in 29 CFR Part 1904. However, sometimes these State plans are more strict than the national guidelines. Therefore, you are advised to contact these offices if your workers are employed in any of these 25 State plan States to be sure that you are in compliance with their recordkeeping regulations.

Question 2a: If, while a Canadian employee is working in the United States, he/she is injured beyond a first aid case, is this injury recorded on a OSHA 200 log?

Yes. Injuries and illnesses which occur while the employee is traveling in places where OSHA has jurisdiction and which meet the recording criteria need to be recorded on the company OSHA log. Again, if your employees are working in any of the 25 State Plan States, you are advised to contact their office to be sure that you are in compliance with their recordkeeping regulations.

Question 2b: Does it matter that this employee is covered under Canadian Workers Compensation Benefits?

No. Workers' compensation determinations should not impact the recordability of cases under OSHA. Some cases may be covered by workers' compensation but are not recordable; others may be OSHA recordable but are not covered by workers'compensation. Cases should be evaluated solely on the basis of OSHA requirements (Recordkeeping Guidelines Page 26, Q&A B-1).

Question 3: While Canadian employees are working in the United States can these man hours be used in the man hour calculations to determine our injury rates?

Yes. The figure for hours worked should reflect the actual hours of work-related exposure for all employees working within the boundaries of geographic coverage (See answers to Questions 5 and 6 below). If injuries and illnesses experienced during a particular activity are recordable, then the employee's time spent in the activity should be included in the hours worked estimate. Work-related exposures include most of the employees' activities on the employers' premises as well as situations off premises where the employees are engaged in job tasks or are there as a condition of employment (Recordkeeping Guidelines Page 54, Q&A A-5).

For employees in travel status, the figure for hours worked should include all the employees' work-related activities and necessary travel functions (See Recordkeeping Guidelines Page 36, Q&A C-19 for activities covered in travel status).

Question 4: Can administrative, sales, and management man hours of employees working in one of our Canadian locations be used in the man hour calculations to determine our injury rates-with regard to man hours worked and assigned towards United States business.

No. (See answers to Question 3 and 5.)

Question 5: If a United States employee works outside of the United States and he/she is injured beyond a first aid case, is this injury recorded on a OSHA 200 log?

No. The boundaries of geographic coverage are limited to the United States and its territories. Section 4(a) of the OSH Act of 1970 provides that: "This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone."

Injuries and illnesses which occur while the employee is traveling in places where OSHA does not have jurisdiction do not need to be recorded on the company OSHA 200 log (Recordkeeping Guidelines Page 4, Q&A A-12).

Question 6: When United States employees are working outside of the United States can these man hours be used in the man hour calculations to determine our injury rate?

No. (See Answers to Questions 3 and 4.) The boundaries of geographic coverage are limited to the United States and its territories. Section 4(a) of the OSH Act of 1970 provides that: "This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone." Only if the employee is working in one of these areas covered by the OSH Act, may these man hours be used in the man hour calculations to determine your injury rate.

Question 7a: Are we required to keep and report separate OSHA 200 logs for all of our locations, even though two of them are not manned?

Yes. Injury and illness records (the log and summary, OSHA No. 200, and the supplementary record, OSHA No. 101) must be kept for every physical location where operations are performed (Page 20, Section B).

Question 7b: Can we keep one OSHA 200 log for the United States due to the nature of our work and the fact that all employees report to a central dispatch location?

No. "Injury and illness records (the log and summary, OSHA No. 200, and the supplementary record, OSHA No. 101) must be kept for every physical location where operations are performed. Under the regulations, the location of the records depends upon whether or not the employees are associated with fixed establishments.....Some employees are subject to common supervision, but do not report or work at a fixed establishment on a regular basis. These employees are engaged in physically dispersed activities that occur in construction, installation, repair, or repair, or service operations. Records for these employees should be located as follows:

1. Records may be kept at the field office or mobile base of operations.

2. Records may also be kept at an established central location. If the records are kept centrally: (1) The address and telephone number of the place where the records are kept must be available at the worksite; and (2) there must be someone available at the central location during normal business hours to provide information from the records." (See Recordkeeping Guidelines, Pages 20-21, Section B.)

I hope you find this information useful. If you have any further questions or comments, please contact the Division of Recordkeeping Requirements at 202-693-1702.

Sincerely,

Cheryle A. Greenaugh
Director, Directorate of Information Technology

cc: Jay W. Bagley, Administrator
     Utah OSH