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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.
May 13, 2005
Mr. Steve Stillwell
Assistant to the Director
Adventist Disaster Response
5201 Cashion Road
Huntersville, NC 28078
Dear Mr. Stillwell:
Thank you for your August 5, 2004 letter to the Occupational Safety and Health Administration (OSHA). Your letter has been referred to OSHA's Directorate of Enforcement Programs (DEP), Office of General Industry Enforcement, for an answer to your questions regarding (1) the applicability of OSHA standards and regulations to volunteers and (2) training requirements for forklift operators at different warehouse facilities.
Question 1: Do OSHA regulations using the word "employee" also apply to volunteers?
Reply: The applicability of OSHA standards and regulations in specific situations depends on whether the individuals in a workplace are employers or employees within the meaning of the Occupational Safety and Health Act of 1970 (OSH Act.) OSHA regulations interpreting the coverage provisions of the OSH Act provide that any charitable or non-profit organization which employs one or more employees is covered under the Act and is required to comply with its provisions and with OSHA standards and regulations (see 29 CFR §1975.4(b)(4)). Thus, if your organization has an employment relationship with at least one worker, it qualifies as an employer and would be required to comply with the provisions of the OSH Act and with OSHA standards and regulations that affect the working conditions of its employees.
In general, whether an employment relationship exists is a complex legal determination that must be made on a case-by-case basis by applying certain common law principles to the specific facts. However if, as you describe in your letter, your warehouse staff are volunteers who receive no monetary or other compensation, it is OSHA's view that they are not employees subject to coverage under the federal OSH Act.
The forklift operator training requirements you reference in your letter, 29 CFR 1910.178(l), are intended to protect not only the operator himself but employees in the workplace who may be injured by unsafe operation of these machines. In situations where neither the volunteer operator of a forklift nor any other personnel in the warehouse who are potentially exposed to a risk of injury from a forklift accident, receive monetary or other compensation, OSHA would not cite your organization for failing to provide operator training as set forth in 1910.178(l). Nevertheless, OSHA would encourage you to ensure that your volunteers receive the training outlined in OSHA's standard before operating forklifts or other powered industrial trucks. At the time OSHA issued its training rules in 1998, the agency found that unsafe operation of such equipment resulted in an average of 100 fatalities and tens of thousands of injuries each year. Providing appropriate operator training will help your organization reduce these risks and provide a safer working environment for your volunteer workers.
You should be aware that twenty-six States operate their own occupational safety and health laws under "State plans" approved by OSHA pursuant to Section 18 of the OSH Act. Under these plans, a State must conduct inspections to enforce its standards and operate occupational safety and health training and education programs. Some State plans also extend coverage to certain volunteers and other workers exempt from Federal OSHA authority. For your information, the State of North Carolina does not generally cover volunteers. However, coverage of volunteers in North Carolina, as well as in other States, is dependent on the specific circumstances at a given workplace. For more specific information on coverage of volunteers at the State level, we suggest you go to OSHA's State Plan webpage at http://www.osha.gov/dcsp/osp/index.html.
Finally, your letter indicates that your organization conducts its disaster relief operations under memoranda of understanding with various state agencies and the Federal Emergency Management Administration (FEMA). The responses in this letter relate solely to requirements under the federal OSH Act, not to any additional requirements that may be applicable under your arrangements with other governmental agencies.
Question 2: If a forklift operator has been trained/certified at one warehouse location and that operator goes to another warehouse, does the operator need to be re-trained at the new location, even though both facilities are owned by the same organization?
Reply: OSHA's Powered Industrial Truck Standard, 29 CFR 1910.178(l)(1)(i) states: "The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (l)." Paragraph 1910.178(l)(3) of the standard requires that operators receive training in the topics which are applicable to the safe operation of the truck in the employer's workplace. As a result, an operator must be trained and evaluated in the safe operation for the type of truck that the operator will be assigned and to operate the truck safely under the conditions at the employer's workplace.
Whether a forklift operator trained and evaluated at one warehouse facility must receive additional training on "workplace-related topics" at another warehouse facility to operate the same type of truck will depend on whether the two facilities significantly differ with respect to any of the topics listed in 1910.178(l)(3)(ii). If all of the potential hazards addressed in the workplace-related topics are the same, then no additional training or evaluation would be necessary. Thus, for example, if the facilities have substantially similar ramps or narrow aisles, no additional training on those topics would be required. However, additional training would be required if, for example, the configuration of the warehouse is different or if loads to be carried at the facilities differ in composition or stability. The key factor is whether the workplace conditions are substantially the same as that in which the operator has been trained.
Thank you for your continued interest in occupational safety and health. If we can be of further assistance, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.
Richard E. Fairfax, Director
Directorate of Enforcement Programs