We proposed in the NPRM to define workforce to mean employees, volunteers, trainees, and other persons under the direct control of a covered entity, including persons providing labor on an unpaid basis.
The definition in the final rule reflects one revision established in the Transactions Rule, which replaces the term "including persons providing labor on an unpaid basis" with the term "whether or not they are paid by the covered entity." In addition, we clarify that if the assigned work station of persons under contract is on the covered entity's premises and such persons perform a substantial proportion of their activities at that location, the covered entity may choose to treat them either as business associates or as part of the workforce, as explained in the discussion of the definition of business associate. If there is no business associate contract, we assume the person is a member of the covered entity's workforce. We note that independent contractors may or may not be workforce members. However, for compliance purposes we will assume that such personnel are members of the workforce if no business associate contract exists.