The Small Employer Exemption: What It Covers and What It Does Not

If your company has 10 or fewer employees, or your establishment is in an industry people often call "low hazard," you have probably heard that you are "exempt from OSHA recordkeeping." That is only partly true. The regulation calls each of these a "partial exemption." Here is which duties are lifted, which stay, and how to tell whether you qualify.

The size exemption turns on 10 employees, counted across the whole company

If your company had 10 or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records, unless OSHA or the Bureau of Labor Statistics (BLS) informs you in writing that you must keep records under 1904.41 or 1904.42 (1904.1(a)(1)).

If your company had more than ten employees at any time during the last calendar year, you must keep OSHA injury and illness records, unless your establishment is classified as a partially exempt industry under 1904.2 (1904.1(a)(2)).

Count the entire company, not each location. The partial exemption for size is based on the number of employees in the entire company (1904.1(b)(1)).
Use your peak, not your average. You need to determine your company's peak employment during the last calendar year. If you had no more than 10 employees at any time in the last calendar year, your company qualifies (1904.1(b)(2)).

The industry exemption is applied one establishment at a time

Section 1904.2 does not use the phrase "low hazard." It says that if your business establishment is classified in a specific industry group listed in appendix A to subpart B of Part 1904, you do not need to keep OSHA injury and illness records unless the government asks you to keep the records under 1904.41 or 1904.42 (1904.2(a)(1)).

This exemption applies to individual business establishments, not the whole company. If a company has several establishments engaged in different classes of business activities, some of them may be required to keep records while others may be partially exempt (1904.2(b)(1)). If one or more of your company's establishments are classified in a non-exempt industry, you must keep records for all of such establishments, unless your company is partially exempted because of size under 1904.1 (1904.2(a)(2)).

This article does not reproduce appendix A, so check the appendix itself. For help determining your NAICS code, you may contact your nearest OSHA office or State agency (1904.2(b)(2)).

Every employer still has to report the most serious events

Even under the size exemption, all employers covered by the OSH Act must report to OSHA any work-related incident that results in a fatality, the in-patient hospitalization of one or more employees, an employee amputation, or an employee loss of an eye (1904.1(a)(1)). The industry exemption makes the same point in slightly different words: all employers must report to OSHA any workplace incident that results in an employee's fatality, in-patient hospitalization, amputation, or loss of an eye (1904.2(a)(1)). The deadlines are:

Fatality: within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to OSHA (1904.39(a)(1)).
In-patient hospitalization, amputation, or loss of an eye: within twenty-four (24) hours after the in-patient hospitalization of one or more employees, an employee's amputation, or an employee's loss of an eye, as a result of a work-related incident, you must report it to OSHA (1904.39(a)(2)).

You must report by telephone or in person to the OSHA Area Office nearest to the site of the incident, by telephone to 1-800-321-OSHA (1-800-321-6742), or through the reporting application at www.osha.gov (1904.39(a)(3)).

The duty has limits. You must only report a fatality if it occurs within thirty (30) days of the work-related incident, and an in-patient hospitalization, amputation, or loss of an eye only if it occurs within twenty-four (24) hours of the incident (1904.39(b)(6)). Paragraph (b) of 1904.39 has other conditions, so read it in full.

A written request from OSHA or BLS switches recordkeeping back on

OSHA. If you are partially exempt under 1904.1 and/or 1904.2, you do not have to routinely submit information under 1904.41(a)(1) and (2). You will have to submit information under 1904.41(a)(3) if OSHA informs you in writing that it will collect injury and illness information from you. If notified, you must keep the injury and illness records required by Part 1904 and submit information as directed (1904.41(b)(6)).
BLS. Even if you are exempt under 1904.1 to 1904.3, the BLS may inform you in writing that it will be collecting injury and illness information from you in the coming year. If you receive such a letter, you must keep the records required by 1904.5 to 1904.15 and make a survey report for the year covered by the survey (1904.42(b)(3)).

The exemption is about records, not about safety standards

Part 1904 is titled "Recording and Reporting Occupational Injuries and Illnesses." The only thing 1904.1 and 1904.2 lift is the need to "keep OSHA injury and illness records" (1904.1(a)(1); 1904.2(a)(1)). Neither section mentions OSHA's safety and health standards. Apart from the reporting sentence described above, they speak only to keeping injury and illness records, so nothing in their text excuses an employer of any size, in any industry, from a safety or health standard.

What to do with this

Find your whole company's peak employment for the last calendar year (1904.1(b)(1); 1904.1(b)(2)).
If the peak was more than 10, check each establishment's industry classification against appendix A to subpart B (1904.2(a)(1); 1904.2(b)(1)).
Whatever the answer, make sure someone knows the 8-hour and 24-hour reporting deadlines and how to report (1904.39(a)(1); 1904.39(a)(2); 1904.39(a)(3)).
If OSHA or BLS notifies you in writing, keep the required records and respond as directed (1904.41(b)(6); 1904.42(b)(3)).

Source

This article relies on regulation text in 29 CFR Part 1904 as published on osha.gov: 1904.1, 1904.2, 1904.39, 1904.41, and 1904.42. The regulation itself always controls. States that run their own OSHA-approved State Plans may have additional or stricter rules.