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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 http://www.osha.gov.
October 17, 2000
Director of Risk Management
Colorado Health Care Association
225 East 16th Avenue
Denver, Colorado 80203
Dear Ms. Aberle:
Thank you for your letter dated June 1, 2000, concerning procedures for recording (1) work-related injuries and illnesses experienced by temporary workers and (2) needlestick injuries.
You state that your membership is composed of businesses involved in long term care, such as nursing homes and assisted living facilities. You state that a determination of day-to-day, supervisory control over "pool" employees is difficult to make, and requiring your members' facilities "to track injuries that occur to these employees is problematic" especially when the pool employee is not a permanent employee of the facility. "Many times staff charge nurses may be dictating schedules to pool employees and directing their work by assigning tasks, but the facility does not have 'control' over these employees. For example, the facility does not train or orient the pool employees, control their hours, pay for their workers' compensation insurance, etc. In most cases the pool nurse is essentially an independent contractor to the facility." You request "further direction on these issues, as well as a formal definition of 'day-to-day supervision.'"
Day-to-day supervision. Q&As A-1, A-2, and A-3 on pages 24 and 25 of the Recordkeeping Guidelines for Occupational Injuries and Illnesses ("Guidelines") provide guidance on the recordkeeping requirements of 29 CFR Part 1904, as they apply to temporary workers and independent contractors. The primary factor to be considered in determining who should record a work-related injury or illness experienced by a temporary worker is who supervises the worker on a day-to-day basis. If the worker is subject to the day-to-day supervision of the using firm, the using firm should record the case on its own OSHA Log. Day-to-day supervision generally exists when the employer "supervises not only the output, product, or result to be accomplished by the person's work, but also the details, means, methods, and processes by which the work objective is accomplished." In contrast, independent contractors "are primarily subject to supervision by the using firm only in regard to the result to be accomplished or end product to be delivered" and the using firm would not be responsible for recording their injuries and illnesses. See page 24 of the Guidelines.
Based on the information provided in your letter, we assume that your member organizations are facilities which are responsible for providing patient or resident care on a daily basis. To the extent that the facilities use temporary workers, such as temporary nurses, it is difficult to envision a situation where the details, means, methods, and processes by which these temporary nurses care for patients or residents - whose well-being is presumably the responsibility of the facility - would not be within the purview of the staff charge nurse. Your letter describes the situation where staff charge nurses may dictate schedules and direct work by assigning tasks to "pool" nurses. You state that the host facility does not have "control" over these employees because the facility does not train or orient them, control their hours, or pay the workers compensation insurance. Presumably the facility has some control over hours worked by temporary employees, especially when "dictating schedules." In any event, who provides training, orientation and payment of workers compensation is not determinative as to the question of who provides the day-to-day supervision. Although we may not have enough facts to definitively resolve the question, it seems most likely that the staff charge nurses for the facilities are supervising the pool nurses -- even temporary ones -- on a day- to-day basis.
Your conclusion that, in most cases, "the pool nurse is essentially an independent contractor to the facility" does not appear to be supported by relevant facts concerning the day-to-day supervision of the workers. As noted in the Guidelines (Q&A A-1, page 24): "People considered independent contractors for other reasons may be considered employees for OSHA recordkeeping purposes." In other words, labeling workers who are subject to day-to-day supervision by the host employer as independent contractors for some purposes does not relieve the host employer's obligation to record their occupational injuries and illnesses on the host employer's own OSHA 200 log, pursuant to 29 CFR Part 1904.
Tracking injuries of temporary employees.
You also indicated that tracking injuries and illnesses experienced by "temporary" workers can be problematic in terms of counting days of restricted work activity and days away from work. OSHA recognizes the difficulties associated with this situation. If the host firm is unable to track the exact number of lost workdays associated with an injury or illness experienced by a "temporary" worker, then the host employer should make a good faith estimate of the number of lost workdays the case would likely require, and enter that estimate on the Log. (See Guidelines Q&As B-5, page 48 and B-11, page 49.)
You also requested clarification of the requirements for the recordability of needlestick injuries, noting that "[i]n most cases, it appears that these situations do not meet the requirements for recordability. We understand the requirement and need to track these injuries and have strong procedures for dealing with these situations, but are unclear as to where they need to be tracked, on the OSHA 200 log or through some internal mechanism."
Employers may be subject to requirements of OSHA's recordkeeping regulations and OSHA's Bloodborne Pathogens standard.
As explained in more detail below, if the needlestick incident meets the recording criteria for a work- related injury or illness as set forth at 29 CFR Part 1904, then it must be recorded on the OSHA 200 log. Additionally, employers subject to the Bloodborne Pathogens Standard, 29 CFR 1910.1030, must comply with the requirements of that standard.
OSHA's recordkeeping requirements. Section 8(c)(2) of the federal Occupational Safety and Health (OSH) Act requires the recording of ". . . work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." 29 U.S.C. 657. See also Section 24(a) of the OSH Act. 29 U.S.C. 673. Under the current regulations at 29 CFR Part 1904, the instructions, and the Guidelines, needlesticks -- because of their instantaneous nature -- are considered to be injuries as opposed to illnesses. See Definition section on the back of the OSHA 200 form and discussion in the Guidelines at page 37. To be recordable, the needlestick injury must be work-related and result in either (a) a fatality or (b) lost workdays, or (c) the need for medical treatment beyond first aid, loss of consciousness, restriction of work or motion, or transfer to another job. See 1904.12(c). See also, the Guidelines at pages 27, 43, 79.
OSHA's Bloodborne Pathogens Standard. The requirements mandated by the Bloodborne Pathogens Standard, 29 CFR 1910.1030, for the recordability of occupational exposure incidents involving blood or other potentially infectious materials (OPIM) are described in paragraphs (f)(3) and (f)(4) of the standard. This requirement is further explained in section XIII.F of OSHA's November 1999 Compliance Directive, CPL 2-2.44D, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens. It states that "following an exposure incident, such as a needlestick or other sharps injury, employers are required to document, at a minimum, the routes of exposure and the circumstances under which the exposure incident occurred." Employers must include in their Exposure Control Plan (ECP) [as required by (c)(1)(ii)(C)], the procedure(s) the employer will use for evaluating and responding to the exposure incident as set forth in paragraph (f)(3)(i) of the standard (e.g., post-exposure prophylaxis, counseling, medical evaluation). In addition, Section 1910.1030(h) sets forth the recordkeeping requirements for medical records and training records, as well as the requirements for the availability of these records and requirements for transfer of these records.
If you would like more information regarding the requirements of the Bloodborne Pathogens Standard, it is available on the OSHA website at http://www.osha.gov. The Compliance Directive CPL 2-2.44D - Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens, also available on the internet, addresses multi-employer worksite issues specifically with regard to the Bloodborne Pathogens Standard which you may find helpful.
I hope you find this information helpful. If you have any further questions regarding OSHA's injury and illness recordkeeping requirements, please contact the Division of Recordkeeping Requirements at (202) 693-1702.
Cheryle A. Greenaugh
Directorate of Information Technology