We occasionally write what we refer to among ourselves as a “360” post, as in 360 degrees, or looking at an issue from all sides. I’ll write about EHS, Nicole about labor or employment issues, and Jeff will focus on other potential liability, all associated with a single factual scenario. The way the law and various agencies view the relationship between the temporary worker and the host employer is such a significant topic, we decided to go with an extended “360” – we are going to take 3 weeks to look at this one issue, each time from a different perspective. We’ll start with OSHA…
“Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.”
— David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health
That quotation is the first thing you see on OSHA’s webpage dedicated to protecting temporary workers. Yes, OSHA has a webpage dedicated to protecting temporary workers. This is all part of the Temporary Worker Initiative, launched in April 2013. OSHA had found that temporary workers were much more likely to be injured on the job, and the injuries were often severe or even fatal. Many of these injuries occurred in the first few days on the job.
OSHA considers the staffing agency and the host employer “joint employers.” This means that they both have a responsibility to ensure that the temporary worker is provided a safe workplace. That said, each job and each job site is different, and the agency and host need to coordinate between them as to who is the best to provide compliance with certain requirements.
Examples OSHA gives – a staffing agency may be best positioned to provide audiometric testing, while a host should comply with standards related to machine guarding, which is more site specific. Another example – an agency is well positioned to provide HazCom training, but the host needs to provide training on specific chemical hazards associated with the job function the temporary worker might be performing. In any case, both employers will have an obligation to make sure that all requirements have been complied with, even those being performed by the other.
We strongly recommend that our clients who work with staffing agencies clearly spell out each party’s responsibilities in their contract. For example, which OSHA training is the agency expected to provide, and which is the host expected to provide? It’s also a good way to make sure that the staffing agency understands its responsibilities under OSHA. There is not a right or wrong way to do allocate such responsibilities, but it is critical that the employee is provided a safe workplace, and it’s just smart to spell out the plan ahead of time.