Employment relationship factors for nursing registries

July 6, 1992

Laura E. Austin
Attorney and Counselor at Law
[Recipient address omitted]
Dear Ms. Austin:

This is in response to your letter of March 26, in which you requested clarification concerning the scope of the Occupational Safety and Health Administration (OSHA) regulation, 29 CFR 1910.1030, "Occupational Exposure to Bloodborne Pathogens", for your client who operates a nursing registry. We apologize for the delay in this response.

In order to respond to your inquiry and to determine whether employees or independent contractors are involved, additional information is needed. OSHA requests that a response be provided for the following questions in order to properly address your concerns on whether or not your client is covered under the regulation:

1. Do the nurses depend on the registry for their work?

2. Does the registry refuse to offer work to a nurse who does not perform well on the job?

3. Do the nurses pay fees to the registry for its services?

4. Does the registry take a portion of the money it receives from the hospitals?

5. Does the registry offer any training to the nurses?

Upon receiving the responses, OSHA will provide you with further guidance on this issue. To help determine if the requisite employer/employee relationship exists, the Occupational Safety and Health Review Commission considers the following factors, among others: whether the worker considers himself or herself to be an employee of the entity in question; how the worker's wages are established and paid; whether the worker has the power or responsibility to exercise independent control over his or her working conditions; whether the worker has control over the workplace and equipment; whether the worker can be hired and fired as in a traditional employer/employee relationship; whether the worker can modify his or her employment conditions; and whether the worker's ability to increase his or her income is dependent upon efficiency or upon initiative, independent judgement, and foresight.

OSHA is unable to address your concerns regarding the tax code and encourages you to seek advice on this issue from the Internal Revenue Service. Thank you for your interest in worker safety and health.

Sincerely,
Patricia Clark, Director
Directorate of Compliance Programs