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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 https://www.osha.gov.
June 20, 2016
Ms. Kris Lachance
Safe Art Works
515 E. Grand River Ave., Suite F
East Lansing, Michigan 48823
Dear Ms. Lachance:
Thank you for your two letters to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs concerning the requirements of OSHA's Bloodborne Pathogens (BBP) standard, 29 CFR 1910.1030, as applied to tattoo artists and body piercers in your state. One letter relates to the training requirements under the standard. The other letter relates to the obligations of tattoo parlors to tattoo artists whom the parlors regard as independent contractors. This reply letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not detailed in your original correspondence. We've described your scenario, below, and paraphrased your questions, followed by our responses. We apologize for the delay in responding to your request.
Scenario: You claim the Michigan Department of Licensing and Regulatory Affairs (LARA) is allowing online (computer-based) training to meet state requirements for annual training under the state's occupational health standards, Part 554, Bloodborne Infectious Diseases. You further claim that the information in most online training programs is never site-specific, and provides for no real-time interaction with a trainer for questions and answers. You also stated that the majority of tattoo and body piercing businesses employ the services of tattoo artists and body piercers, whom they regard as independent contractors, and you posed a question about the responsibilities of the businesses under the BBP standard to them.
Question 1: Does OSHA still hold to the position that BBP training requires an employer to provide site-specific information and allow the employees the opportunity for interactive questions and answers, as provided in OSHA's letter of interpretation to Mr. John Mateus, June 26, 2003?
Reply: Yes, the training requirements established under federal OSHA's BBP standard paragraph (g)(2) include the requirement for an employer to provide site-specific information and allow for an opportunity for interactive questions and answers with the person conducting the training session [see 29 CFR 1910.1030(g)(2)(vii)(N)].
OSHA's enforcement policy concerning this requirement was explained in the compliance directive, CPL 02-02-069, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens, November, 27, 2001. Specifically, Section XIII.G.8 of this directive provides that "a generic computer program, even an interactive one, is not considered appropriate unless the employer supplements such training with the site-specific information required (e.g., the location of the exposure control plan and the procedures to be followed if an exposure incident occurs) and a person is accessible for interaction. Trainees must have direct access to a qualified trainer during training. OSHA's requirement can be met if trainees have direct access to a trainer by way of a telephone hot line. The use of an electronic mail system to answer employee questions is not considered direct access to a qualified trainer, unless the trainer is available to answer e-mailed questions at the time the questions arise."
Michigan operates its own occupational safety and health program under a plan approved and monitored by federal OSHA. MIOSHA covers employees in Michigan. MIOSHA adopts and enforces standards and investigates safety and health concerns in workplaces throughout the state. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA's, but may have different or additional requirements. For specific information on the requirements and interpretation of Michigan's standards, you may contact MIOSHA directly at the following address:
Michigan Occupational Safety & Health Administration
530 W. Allegan Street
P.O. Box 30643
Lansing, MI 48909-8142
Phone: (800) 866-4674
We advise you to review Michigan's revised standard, Part 554, Bloodborne Infectious Diseases, as recently amended October 28, 2014, which is consistent with OSHA's position on this matter. Specifically, see Rule 16, Michigan Administrative Code R., 325.70016 (7)(b).
Question 2: What are the responsibilities of tattoo parlors under the BBP standard to tattoo artists and body piercers working at their establishments? Some parlors regard them as independent contractors.
Reply: Concerning your scenario about tattoo artists and body piercers, you should know that the Occupational Safety and Health (OSH) Act of 1970 only applies to "employment" [29 U.S.C. § 653(a)]. In other words, it covers employees, not individuals who are working only as independent contractors. Under Supreme Court precedent a hired party (the tattoo artist or body piercer) is an employee if the hiring party (the tattoo parlor) has the right to control the manner and means by which the product or service is accomplished. Among the factors relevant to this inquiry are the skill(s) required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Merely declaring in a contract or otherwise that a hired party is an independent contractor does not automatically make the hired party an independent contractor. If under this test the tattoo artist or body piercer is an employee of the tattoo parlor, the latter is obligated to provide all the protections of the BBP standard to him or her.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the Federal requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.
Thomas Galassi, Director
Directorate of Enforcement Programs