OSHA and the Temporary Workforce

By: Matt McCreery

January 2015

The Occupational Safety and Health Administration (OSHA) has received thousands of questions and requests for clarification about their occupational health and safety standards from employers, individuals, unions, and other organizations throughout the years.  When OSHA responds to these questions, they typically do so through a Letter of Interpretation.  However, in certain circumstances a memorandum will be issued to provide greater clarity on a particular topic or issue.  This article will briefly cover two of the main questions that affect staffing agencies and employers using temporary labor.

On August 25th, 2014 the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) jointly published a document that outlines best practices for temporary workers.  Workers employed through staffing agencies are generally called “temporary” or “supplied” workers and the staffing agency and staffing agency’s client, or host employer, are jointly responsible for providing a safe working environment.

OSHA Recommendations

• Identify to the staffing agency the tasks the temporary worker will be expected to perform and any PPE that will be necessary.
• The parties should agree in their contract which will provide the required PPE.
• The parties should agree on a procedure to share injury and illness information and specify it in the contract.
• The employer who is providing the day to day supervision must maintain injury and illness records.
• The host employer must set up a method for employees to report work-related injuries and illnesses promptly and inform each employee of this procedure.
• Host employers should provide temporary workers with safety training that is the equivalent to that provided to their own employees.
• The host employer should provide the temporary worker with site specific safety and health training and project orientation.

Interpretation Letter Review:
This letter specifically addressed the Hazard Communication Standard and explored the recordkeeping responsibilities for these workers as well.  On an interpretation letter dated November 21, 2012 Ms. Kathryn Bernard, Executive Vice President and General Council of Staffmark, presented the following questions to OSHA. 

Question: Your letter presents several scenarios in which the temporary agency and host employer have varying amounts of supervisory authority and worksite control. In some cases, the temporary agency has no managers on site, whereas in others, it has low-level supervisors or supervisors with significant authority over workers on site. In each scenario, you ask whether the temporary agency or the host employer is responsible for: (1) OSHA-required safety training; (2) OSHA hazard communication; and (3) OSHA injury reporting and log requirements.

OSHA responded with a multiple part response, in regards to each identified item and a description of the potentially shared responsibility that each participating firm would incur.  First and foremost OSHA recommends that each party, through contractual language, has a clear understanding of each employer’s role in protecting its employees.  There are specific OSHA standards which cover the training requirements for specific industries, job duties, and work conditions.  This contractual language should be used to establish what training is required, from each employer, for the proposed scope of work for the temporary workforce.

Why is this important?   Because of its ongoing relationship with the employee, the staffing service would likely have to train its temporary workforce on basic safety training requirements for the work performed.  While, the hiring employer would need to train these personnel on the job specific hazards that they are to be face with on a day to day basis.  It is important to note, that there is no exemption for the various training requirements because of the often times short duration of the employees assignment.  This assumption, by employer’s utilizing temporary labor, often can lead to OSHA citations and penalties if a workplace inspection would occur.
The OSHA response continues  to address both the Hazard Communication portion of the question as well as the OSHA reporting and log requirements set forth by 29 CFR  1904.31.  Excerpts of these comments are shown below.

HAZARD COMMUNICATION

Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals. The directive titled Inspection Procedures for the Hazard Communication Standard, 29 CFR § 1910.1200, CPL 02-02-038, specifically discusses this issue:

[Hazard Communication Standard] training of temporary employees is a responsibility that is shared between the temporary agency and the host employer. The host employer holds the primary responsibility for training since the host employer uses or produces chemicals, creates and controls the hazards, and is, therefore, best suited to inform employees of the chemical hazards specific to the workplace environment. The temporary agency, in turn, maintains a continuing relationship with its employees, and would be, at a minimum, expected to inform employees of the requirements of the standard. (CPL 02-02-38, Appendix A, Section h, March 20, 1998)

OSHA points out, that the temporary agency would likely need to train on the general Hazard Communication requirements, while the hiring employer would need to train on specific chemicals, use of personal protective equipment, and other specifics of any and all chemicals these personnel may be exposed to or imported onto site.

RECORDKEEPING

The OSHA injury and illness recording and reporting regulation, 29 CFR § 1904.31, requires that an employer "record on the OSHA 300 Log the recordable injuries and illnesses of all employees on [the employer's] payroll" and of "employees who are not on [the employer's] payroll if [the employer] supervise[s] these employees on a day-to-day basis." 29 CFR § 1904.31(a). The regulation goes on to reiterate that if an employer "obtain[s] employees from a temporary help service, employee leasing service, or personnel supply service," that the host employer is obligated to record any recordable injuries and illnesses if it "supervise[s] these employees on a day-to-day basis." Id. § 1904.31(b)(2). Therefore, in your first scenario, in which the host employer has full supervisory control over employees, the host employer is responsible for injury and illness recording and reporting. In your last scenario, in which only the temporary staffing agency exercises day-to-day supervision over employees, the temporary staffing agency is responsible for injury and illness recording. In your other scenarios, the temporary staffing agency and host employer share the supervisory role, so it is not readily apparent which employer must comply with 29 CFR § 1904.31. In that case, OSHA advises that the two employers reach an agreement regarding the responsibilities in question. Please note that only one employer's log should contain a record of injuries and illnesses of the employees. Id. § 1904.31(b)(4).

OSHA makes it clear that a recordable injury or illness of a temporary worker should be entered on the hiring employer’s OSHA 300 log if the company performs day-to- day supervision of the worker.  If that is the case, the staffing firm should not record the case.  It is important to note that an injury or illness should only be recorded once on the appropriate employer’s log, which will likely require additional coordination between the two firms.

Safety is forward thinking and relies on common sense and the willingness to act on issues if a risk potential or training need is present.  If you are always striving to improve workplace safety then consideration of trade or temporary personnel training needs should be considered contractually and on an ongoing basis, if a temporary workforce is to be used.