OSHA authority over a customer child at a hardware store

OSHA archive notice: "This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only."

January 28, 1999

The Honorable Steve Chabot
United States House of Representatives
[Recipient address omitted]

Dear Congressman Chabot:

Thank you for faxing the letter from your constituent, Mr. Mark Hyatt, to the Occupational Safety and Health Administration (OSHA). Mr. Hyatt, while in a neighborhood hardware store, became alarmed when his two year old son was able to turn on a "banding machine" located in the store. Although the "Risk Control Manager" for the store asserts that there is no safety hazard involved, Mr. Hyatt wants to insure that other children are not exposed to hazards from powered-equipment while in the store. Unfortunately, Mr. Hyatt could not find help in federal occupational safety and health law.

As you are aware, the Occupational Safety and Health Act (OSH Act) gives OSHA the statutory mandate to "assure safe and healthful working conditions for working men and women." In order for OSHA to assert its statutory authority, an employer/employee relationship must generally exist. Without that nexus, OSHA is without authority to conduct enforcement activity. Section 3 of the OSH Act contains definitions, including those of employer and employee. Because Mr. Hyatt does not meet either definition, OSHA is unable to apply federal occupational safety and health law.

I appreciate your bringing the concerns of your constituent to OSHA's attention. If I can be of any further assistance, please do not hesitate to contact me.

Sincerely,

Charles N. Jeffress
Assistant Secretary