Does OSHA Cover Self-Employed (1099) Nurses? Facility Guide

The Occupational Safety and Health Administration (OSHA) is the enforcement arm of the U.S. Department of Labor responsible for ensuring compliance with federal workplace safety and health standards. To accomplish this goal, it sets forth regular training requirements that must be met by employers. As healthcare facilities increasingly rely on a mixed workforce — consisting of employees and non-employees — who exactly are facilities charged to protect under the OSHA laws? Does OSHA cover self-employed workers and other temporary or non-traditional workers?

These questions are common for healthcare facility leaders managing growing numbers of independent contractors, such as 1099 nurses. Facilities should take note of annual OSHA training requirements as they apply to the entire workplace, regardless of how individual workers may be classified. At the same time, it may be helpful to understand the boundaries of your duties for the types of nurses on your staff.

In this guide, we’ll discuss the key definitions and best practices that can help you understand the way OSHA requirements apply to your healthcare facility’s flexible workforce.

OSHA Coverage: Key Definitions

The healthcare environment is full of workplace hazards. Whether it’s exposure to bloodborne pathogens, chemicals, and medications, or the movement of patients, the risk of injury is high. In fact, this sector has one of the highest rates of work-related injuries.

That’s why it’s so important to take OSHA regulations seriously, for both employees and contractors. Before we address the question, Does OSHA cover self-employed nursing staff? let’s go over the key definitions to help set a framework for the answer.

Covered Employer Definition

The scope of businesses covered by OSHA is broad. The Occupational Safety and Health Act of 1970 (the “OSH Act”) defines a covered employer as any entity “engaged in a business affecting commerce who has employees.” The definition excludes federal, state, and local governmental entities.

Work Environment Definition

Like its definition of employer, OSHA also uses an expansive definition of “work environment,” as it covers:

• The employer’s premises.
• Other areas where employees engage in work-related activities as a condition of their employment.
• Instruments of work that cause injury (such as equipment or materials), regardless of location.

General Duty Clause Definition

The OSH Act also includes a General Duty Clause, under which employers are generally required to provide each of their employees with a place of work that is free from any known hazards that could cause death or serious harm. As part of this, employers must comply with certain occupational health standards.

Does OSHA Cover Self-Employed (1099) Nursing Staff?

Those definitions highlight the OSH Act’s clear expectation that employers provide safe working conditions for their employees. However, the agency’s requirements for facilities hiring independent contractors are a bit less clear.

Does OSHA cover self-employed workers, temporary staff supplied by staffing agencies, or other contractors working in a facility? Let’s take a look at whether compliance with OSHA regulations is expected as you manage each type of worker.

Self-Employed (1099) Nurses and Independent Contractors

OSHA refers to independent contractors (or “ICs”) as “self-employed” individuals. So, does OSHA cover self-employed nurses and independent contractors? Because they don’t have a separate employer or their own employees, and due to the lack of OSHA contractor safety mandates, they technically would not be covered by the OSH Act. In the same way that OSHA doesn’t cover self-employed businesses, OSHA regulations don’t cover self-employed workers like IC nurses.

However, the classification of a worker as an employee versus an IC isn’t a simple matter of looking at the terms of a contract. What matters is how the worker actually performs their work — and who supervises them while doing so.

Federal and state agencies, and courts in the course of litigation, can determine that an “independent contractor” hired by a facility is actually a misclassified employee based on the work arrangement. The determination is based on multiple factors, and may include:

• The degree of control and direction that the business exerts.
• The permanency of the relationship.
• The degree to which the work is an integral part of the employer’s business.

In regard to OSHA, “self employed” workers could still be owed the same workplace safety obligations as other staff, especially where the healthcare facility provides supervision on a day-to-day basis. When inspecting a safety violation or incident involving an IC, an OSHA inspector will investigate whether an employer relationship exists.

The bottom line for healthcare facilities: When it comes to maintaining compliance with OSHA, self-employed worker safety should be on your radar as there is a chance that you could face a misclassification investigation and determination based on your work arrangement.

Temporary Workers

Temporary workers are supplied to facilities by third party staffing agencies and are entitled to the same protections under the OSH Act as employees. Under its Temporary Worker Initiative (TWI), OSHA treats staffing agencies and the companies who hire them (referred to as “host employers”) as “joint employers,” with each bearing the responsibility to comply with statutory and regulatory requirements regarding workplace health and safety.

OSHA will generally view the host employer as having the primary responsibility for worksite-specific requirements, but they also expect staffing agencies to inquire as to the conditions at the employer’s worksite, and for both to engage in communications regarding workplace safety and necessary protections. Where a workplace safety violation causes injury, OSHA could issue citations to both, depending on the facts.

The bottom line for healthcare facilities: OSHA expects employers to treat temporary workers like any other workers when it comes to training, safety, and health protections.

OSHA Training Requirements for Healthcare Workers

Maintaining a safe environment at a healthcare facility involves supplying required training modules to nursing staff so they’re aware of hazards to avoid and other crucial safety information. This is true for all classifications of nurse workers at your facility. But, does OSHA cover self-employed nurses regarding training requirements, too?

In general, OSHA recommends that employers provide temporary workers with the same safety and health training that they provide their own employees performing the same work.

Best Practices for Workplace Safety Training Programs for Temporary Nursing Staff

The National Institute for Occupational Safety and Health has provided guidance on best practices when it comes to workplace safety training programs for temporary, 1099 workers. It also provides an OSHA-required training checklist for site- and task-specific training.

Here are a few of the healthcare-specific training topics that should be part of your required OSHA-required annual training list as they apply to 1099 nurses in your facility:

• Culture of safety
• Infectious diseases
• Safe patient handling
• Workplace violence
• Other hazards such as exposure to chemicals, hazardous drugs, radiation, and materials that cause allergic reactions

While OSHA provides general training resources for employers, you can also find bundled training packages covering OSHA standards specific to the healthcare environment. In addition to helping your facility maintain compliance with OSHA, contractor safety requirements like specific courses or modules could help temporary staff avoid injury and illness.

OSHA Audits and Facility Documentation

OHSA conducts workplace inspections to identify safety hazards or unsafe practices. Inspections are commonly triggered by serious workplace injuries or incidents, employee complaints, or when there is some other basis to suspect an imminent workplace danger. However, it can also just perform compliance audits to review your programs, policies, injury logs, and OSHA-required training checklists to ensure that you’re meeting federal training requirements.

If your facility utilizes temporary staffing in the form of 1099 nurses, OSHA will likely consider you a joint employer responsible for, among other things, workplace safety training. The question is whether you would have a reliable staffing partner at your side to ensure that you have training documentation available for an auditor — for your affected employees and your temporary workforce.

Strategies for OSHA Compliance When Managing a Flexible Nurse Workforce

Many healthcare staffing agencies don’t hire their temporary workers as employees, but as contractors, and are therefore limited in their ability to provide supervision, direction, control, or training to those workers. The absence of these essential functions can have negative implications that put the facility, workers, and patients at risk, such as:

• An absence of documentation and support that would otherwise be provided in healthcare settings, leading to legal exposure.
• The potential to trigger the U.S. Department of Labor and the IRS to investigate issues related to employee misclassification.
• Workplace safety training gaps or training inconsistencies, which may cause inconsistent patient care delivery.

There are other options. Nurse staffing companies that hire their nurses as W2 employees are positioned to support you as a joint employer because they already are one. They’re more likely to have the systems, processes, and documentation available to protect your facility in the event of an OSHA training requirement safety audit.

Given the potential penalties that can be assessed by OSHA — $15,625 per violation and per day beyond the abatement date and $156,259 for willful or repeated violations — it’s important to have the right staffing partner by your side, one that can help you meet and document any OSHA-required training.

Discover More Ways to Optimize Your Leadership

So, does OSHA cover self-employed nursing staff? It’s not a simple answer, but getting a handle on these legal nuances is an important step toward effectively managing the mixed nursing workforce at your facility. Our expert-backed healthcare industry resources and insights provide additional information on facility compliance, nursing management strategies, and so much more.

Legal Disclaimer: This article contains general legal information, but it is not intended to constitute professional legal advice for any particular situation and should not be relied on as professional legal advice. Any references to the law may not be current as laws regularly change through updates in legislation, regulation, and case law at the federal and state level. Nothing in this article should be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed to practice in your jurisdiction.