By Eric J. Conn and Lindsay A. Smith

In April of 2013, OSHA declared that protecting temporary workers would become a top priority, and that has proven true in 2014 with the roll-out of OSHA’s Temporary Worker Initiative and in 2015 with a heavy dose of enforcement and new guidance for employers.  OSHA maintains that temporary employees are entitled to the same safety protections as other workers, and no one would dispute that, but the question remains, who is responsible – the staffing agency or the host employer – when a temporary worker is exposed to workplace hazards?

Although OSHA has regulated the treatment of temporary workers for many years, its new emphasis on protecting temporary workers has been sparked by several concerns. Most prominent among them is the surge (and expected continued growth) of the temporary workforce, the nature of the work performed by temporary workers, and recent fatalities among temporary workers. For purposes of the Initiative, OSHA defines “temporary worker” to include only one who is working in a host employer/staffing agency employment structure.

OSHA’s stated goals for the Temporary Worker Initiative are to:

1. Protect temporary workers from workplace hazards;
2. Ensure staffing agencies and host employers understand their safety and health obligations; and
3. Allow OSHA to learn information regarding hazards in workplaces utilizing temporary workers.

To achieve these goals, OSHA has been producing compliance assistance materials, such as fact sheets and webpages, conducting outreach to affected stakeholders, and of course, exercising its enforcement hammer. Specifically, OSHA directed its inspectors to explore the presence of temporary workers during every inspection they conduct and determine whether any temporary workers are exposed to violative conditions, regardless of the purpose of the inspection or the nature of the employers’ business.

Training is a main focus of the initiative and OSHA has specifically instructed its inspectors to determine whether required training has been provided in a language the employees can understand. Indeed, from an enforcement standpoint, the list of most frequently cited violations at workplaces with temporary workers has a strong training focus, including:

• Hazards requiring Lock out/Tag out Protections
• Fall Protection
• Hazard Communication
• Electrical Hazards
• Powered Industrial Trucks

OSHA has issued interpretation letters and other guidance to the employer community about which entity is responsible for certain OSHA safety requirements between temporary staffing agencies and host employers. The issues addressed in the guidance focus on injury and illness recordkeeping, training, personal protective equipment, rights of whistleblowers, and chemical hazard communication. In each of these areas, OSHA’s enforcement philosophy begins with the premise that the staffing agency and host employer share responsibility for ensuring that OSHA’s safety requirements are met. The key consideration in determining which entity will be held accountable (i.e., cited for a violation), is generally which entity provides day-to-day supervision of the temporary workers and controls the means and methods of the work being performed.  Although this guidance provides some insight into the division of responsibility for the safety and health of temporary workers, the it is quite vague and leaves a lot open to the interpretation of the host employer, staffing agency, and, most troubling, the OSHA inspector.

Due to the unique nature of the temporary worker, staffing agency, and host employer working relationship, and the current intense enforcement environment, staffing agencies and host employers should consider taking some or all of the following steps:

• The temporary staffing agency and the host employer should set out their respective safety-related responsibilities in their contract, to ensure there is clear understanding of each employer’s role.
• Both employers should conduct new hire/new project safety orientations.
• Both employers plus the temporary workers themselves should maintain open and effective communication to ensure that injuries and illnesses are promptly reported and reviewed, underlying hazards are corrected, proper PPE is being provided, and safety concerns can be raised to the host employer and staffing agency before injuries occur.
• Both employers should perform a hazard assessment of the worksite to determine: (a) what conditions exist at the host employer’s worksite; (b) what hazards may be encountered; and (c) how best to ensure the temporary workers’ protection.
• Host employer should evaluate whether temporary workers may actually be treated by OSHA as the host’s direct employee and assume full compliance responsibility if that is likely, regardless what label is attached to the worker.

For more information, check out this link to a recording of a webinar about OSHA’s Temporary Worker Initiative done as part of Conn Maciel Carey’s 2015 OSHA Webinar Series.