Categories: OSHA

By Eric J. Conn and Amanda R. Strainis-Walker

One of the questions we are most frequently asked by small employers is about the so-called "Rule of 10"; i.e., the long-perpetuated myth that OSHA does not have jurisdiction over employers or workplaces with fewer than 10 employees.  This is a commonly misunderstood policy, so let's set the record straight.

The short answer is, unless you are a small farming operation, OSHA does have jurisdiction in almost every circumstance.  There are some partial exemptions and exclusions from certain types of OSHA activity, such as maintaining Injury & Illness Recordkeeping logs and forms, and from certain types of inspections or citations, but those limitations rarely apply and really offer too little relief to small employers to be meaningful.

The summary below identifies what partial exemptions exist, who qualifies for them, and in what circumstances they kick in:

OSHA Recordkeeping Partial Exemptions:

Employers do not need to keep OSHA injury and illness records if they had no more than ten employees company-wide (not just the facility in question), at any single time during the last calendar year (i.e., peak level of employment during the previous 12 months), unless OSHA or the BLS informs you in writing that you must keep the records.  Here is a link to the OSHA regulations detailing this partial exemption.

There are also several historically low-hazard industries that OSHA has excluded from maintaining injury and illness logs.  The list of exempted industries are listed by SIC code in Appendix A to OSHA's Recordkeeping regulations.  This industry exemption applies regardless of the number of employees.

Note that both the Small Employer and Low-Hazard exemptions to OSHA Recordkeeping are considered "partial exemptions" because all employers, including those partially exempted by reason of company size or industry classification, must comply with the reporting requirements of OSHA's Recordkeeping regulations; i.e., must report to OSHA within 8 hours, any workplace incident that results in a fatality or the hospitalization of three or more employees (see §1904.39).

Exemptions from Inspections and Citations:

As Advanced Safety Health effectively outlined in their January 2010 Blog Post, "Does OSHA Inspect Employers with 10 or Fewer Employees?," OSHA policy excludes some entities from certain inspection activity.  The key document to look at for these exclusions is OSHA’s Compliance Directive for “Enforcement Exemptions and Limitations under the Appropriations Act” (CPL 02-00-051 - CPL 2-0.51J), which outlines what employers OSHA is authorized to inspect and under what circumstances.  The Directive was last updated in late December of 2011.

Table 1 from the Directive (pasted  below) summarizes the exceptions and limitations:

To explain the table, OSHA is essentially prohibited from inspecting, under any circumstances (even fatality incidents), a small farm with 10 or fewer employees (and with no temporary labor camps).  If you are part of a small (again based on peak employment within the last year of 10 or fewer employees company-wide), non-farming operation AND your industry has a Days Away, Restricted, or Transferred (DART) Rate below the national average DART Rate of 2.0, then you are exempted from Programmed Safety-related inspections (to know for sure whether your industry is exempted from Programmed Safety inspections, OSHA's Directive on Enforcement Exemptions and Limitations includes a list of the SIC codes that are partially exempted.)

Note that small non-farm operations in low-hazard industries are still subject to Programmed Health-related inspections, and any type of Unprogrammed Inspection; i.e., inspections following an incident, employee complaint or referral (e.g., from an emergency responder or the media).

In sum, while small employers do have some limited exemptions (small, low-hazard industry employers are exempted from maintaining injury and illness records and are excluded from safety inspections only), unless you are a small farm without temporary labor camps, the fact is, OSHA can inspect your facility, and can issue citations.

Back to Workforce Bulletin Blog

Search This Blog

Blog Editors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Workforce Bulletin posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.