OSHA Training Requirements and 1099 Nurses

The healthcare environment is full of workplace hazards. From exposure to bloodborne pathogens, chemicals, and medications, to 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 training requirements seriously, for both employees and contractors.

The Occupational Safety and Health Administration, commonly known as “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 are increasingly relying on a mixed workforce — consisting of employees and non-employees — who exactly are facilities charged to protect under the law? With growing numbers of independent contractors working in healthcare, such as 1099 nurses staffing shifts, facilities should take note of annual OSHA training requirements as they apply to the entire workplace, regardless of how individual workers may be classified.

OSHA Coverage: Key Definitions

The scope of businesses covered by OSHA is broad. While it doesn’t cover state or local government workers, the Occupational Safety and Health Act of 1970 (the “OSH Act”), does define a covered employer as any entity “engaged in a business affecting commerce who has employees.”

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

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 meet certain OSHA training requirements as a way to mitigate the risks of workplace injuries.

OSHA Coverage for Non-Employees

The OSH Act requires employers to provide safe working conditions for their employees, but what about temporary workers supplied by staffing agencies, or other contractors working in a facility? The training requirements for these workers are a little less clear. Let’s take a look at each one.

Independent Contractors

OSHA refers to independent contractors (or “ICs”) as “self-employed” individuals. Because they don’t have a separate employer or their own employees, they technically would not be covered by the OSH Act. 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 when 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. This can happen when a business classifies a worker as a contractor on paper, but then exerts control and direction over them as they work, treating them, in effect, like an employee. Is a misclassified employee trained properly as to workplace safety? You might not know, since they were hired as a contractor.

So, for OSHA’s purposes, facilities could still owe workplace safety obligations to “self-employed” workers, especially where they supervise that worker 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, looking to several factors, such as the:

• Location of the work
• Extent of a worker’s control over how and when they work
• Duration of the parties’ relationship

The bottom line for your facility: When it comes to IC compliance with OSHA training requirements, contractor safety should also 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: When it comes to workplace safety, OSHA expects you to treat temporary workers like any other workers when it comes to training, safety, and health protections.

OSHA Training Requirements for 1099 Nurses

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 a required training checklist for site- and task-specific training. 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.

Here are a few of the healthcare-specific training topics that should be part of your required OSHA safety training checklist 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.

OSHA Audits, Facility Documentation, and Penalties

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 training records to ensure that you’re meeting OSHA 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.

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 as well as the documentation and support that would otherwise be provided in healthcare settings puts the facility, workers, and patients at risk — and can also trigger the U.S. Department of Labor and the IRS to investigate issues related to misclassification.

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 are more likely to have the systems, processes, and documentation available to protect your facility in the event of an OSHA training requirement audit.

Given the 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.

Need Help With OSHA Training Requirements and General Compliance?

With the ever-changing legal landscape in the healthcare field, it’s more important now than ever to keep on top of what these changes mean for your facility. As a true staffing partner, IntelyCare is here to help with OSHA compliance and much more. Stay connected with us so you don’t miss out on the latest industry news and insights.

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.