| OSHA requirements are set by statute,
standards and regulations. Our interpretation letters explain
these requirements and how they apply to particular
circumstances, but they cannot create additional employer
obligations. This letter constitutes OSHA's interpretation of
the requirements discussed. Note that our enforcement guidance
may be affected by changes to OSHA rules. Also, from time to time
we update our guidance in response to new information. To keep
apprised of such developments, you can consult OSHA's website
at http://www.osha.gov. |
August 27, 2001
Mr. Stanley A. Millan
Jones & Walker
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Dear Mr. Millan:
Thank you for your February 6, 2001 letter to the Occupational
Safety and Health Administration's (OSHA's) [Directorate
of Enforcement Programs (DEP)]. This letter constitutes
OSHA's interpretation only of the requirements discussed and
may not be applicable to any statement not delineated within your
original correspondence. You had a specific question regarding 29
Code of Federal Regulations §1975.5 and the definition of
employer. We apologize for the delay in responding.
Question: Would a state hospital be excluded from the
definition of employer in Section 3(5) of the Occupational Safety
and Health Act (OSH Act) and the regulatory guidelines at 29 CFR
§1975.5?
Response: The OSHA regulation at 29 CFR §1975.5
addresses states and political subdivisions thereof. Paragraph
§1975.5(b) lists two tests for determining if an entity is a
subdivision of a state:
(b) Tests. Any entity which has been (1) created
directly by the State, so as to constitute a department or
administrative arm of the government, or (2) administered by
individuals who are controlled by public officials and
responsible to such officials or to the general electorate, shall
be deemed to be a "State or political subdivision
thereof" under section 3(5) of the Act and, therefore, not
within the definition of employer, and consequently, not subject
to the Act as an employer.
Paragraph 1975.5(c) lists a set of factors, which you addressed
in your letter, to determine whether an entity meets the above
tests. Below are the factors most pertinent to your
situation.
- Are the individuals who administer the entity [hospital
service district] appointed by a public official or elected by
the general electorate?
You stated that in Louisiana the parish police juries are the
counterparts of county commissions or the local governing bodies
in other states. Police jurors are elected, and are authorized
and empowered to create hospital service districts within their
respective parishes. Under state law, the Board of Commissioners
is appointed by the local governing body, and in turn, appoints
the hospital administrator. The Commissioners are considered the
governing authority of a hospital service district.
- What are the terms and conditions of the appointment? Who
may dismiss such individuals and under what procedures?
You indicated that Louisiana law stipulates the Board of
Commissioners' terms and conditions of appointment; the
-Commissioners are appointed for staggered terms, and may only be
removed for cause and by two-thirds vote of the parish governing
authority (the police jury). The hospital administrators'
terms are set forth by contract, and the administrator may be
dismissed with or with-out cause.
- What are the powers of the entity and are they usually
characteristic of a government rather than a private
instrumentality like the power of eminent domain?
Your letter states that the powers of the hospital service
district are government-like. A Louisiana statute provides that
any hospital service district, "shall have the right and
power of expro-priating property for the purpose of acquiring
land for any purpose that it may find necessary in the operation
of the hospital service district."
- How is the entity regarded under State and local law as
well as under other Federal laws?
You stated that under Louisiana law the parish hospital service
district is regarded as a political subdivision of the State of
Louisiana that is specifically created to own, organize, finance,
bill, and administer a hospital to serve the health care needs of
the parish or community. Under local law the parish hospital
service district is considered an extension of the police
jury.
- Is the entity exempt from State and local tax laws? Are
the entity's bonds, if any, tax-exempt?
You indicated that the hospital service district is exempted
from state and local tax laws, and a Louisiana statute authorizes
the governing body of the district (the Board of Commissioners)
to call an election to issue bonds to acquire property to be used
for hospital purposes or to propose a levy of a special tax for
the purpose of constructing, maintaining and operating the
hospital facilities. Under IRS regulations these bonds would be
tax-exempt.
- As to the entity's employees, are they regarded like
employees of other State and political subdivisions? How do
employee fringe benefits, rights, obligations, and restrictions
of the entity's employees compare to those of the employees
of other state and local departments and agencies?
You state that hospital employees are employees of the hospital
service district, a political subdivision of the state. With
regard to employee fringe benefits, a Louisiana law authorizes
hospital service districts to establish and maintain pension and
retirement systems, for the benefit of all appointed officials
and employees of such districts. Another Louisiana law provides
that the hospital service district may pay the full cost of
coverage for life, health and accident insurance.
From what you have stated, it appears that the
parish hospital service district is a political subdivision of
the state under §1975.5(b)(2). Therefore, it is not an
employer under Section 3(5) of the OSH Act.
Thank you for your interest in occupational safety and health.
We hope you find this information helpful. OSHA requirements are
set by statute, standards and regulations. Our interpretation
letters explain these requirements and how they apply to
particular circumstances, but they cannot create additional
employer obligations. This letter constitutes OSHA's
interpretation of the requirements discussed. Note that our
enforcement guidance may be affected by changes to OSHA rules, or
if there is any additional information not presented in your
letter. Also, from time to time we update our guidance in
response to new information. To keep apprised of such
developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel
free to contact the [Office of General Industry Enforcement] at
(202) 693-1850.
Sincerely,
Richard E. Fairfax, Director
[Directorate of Enforcement Programs]
[Corrected 6/2/2005]
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