Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for temporary employee’s safety and health in two new guidance documents relating to safety and health training and hazard communications. Temporary agencies and host employers that use their services should heed this guidance in carrying out their shared responsibility for temporary worker safety.

Dr. David Michaels, the Administrator of the Occupational Safety and Health Administration, has reinforced OSHA’s position that “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.” This is a serious issue and one that can be difficult with levels and layers of owners, contractors, subcontractors, and temporary agencies providing and supervising site staff.

We have blogged previously about OSHA’s active enforcement activities and guidance documents relating to this important topic: “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

To assist employers in meeting this shared responsibility, OSHA has just released two more guidance documents relating to safety and health training and hazard communication. Temporary Worker Initiative (TWI) Bulletin No. 4 – Safety and Health Training, Temporary Worker Initiative (TWI) Bulletin No. 5 – Hazard Communication. Under its hazard communications guidance, OSHA states that both the host employer and the staffing agency share responsibility to ensure temporary workers are informed and trained regarding exposure to hazardous chemicals. Similarly, under its safety and health training bulletin, OSHA emphasizes the shared responsibility host employers and temporary agencies have for providing proper training. OSHA also confirms that the party who supervises the temporary employee’s work must comply with OSHA’s injury and illness recordkeeping and reporting requirements for temporary workers.

Other highlights from OSHA’s most recent guidance include the following:

  • OSHA recommends that the staffing agency and host employer contractually specify the division of responsibilities to ensure alignment between the staffing agency and host employer, but notes that neither can contract away compliance obligations.
  • In most cases, the host employer is responsible for site-specific training and hazard communications; whereas the staffing agency is responsible for generic safety and health training (including hazard communications training).
  • Although the host employer is usually responsible for site-specific training because it is often in the best position to provide such training, the staffing agency is responsible for ensuring that employees receive proper site-specific training, and must have a reasonable basis for believing that the host employer’s training adequately addresses the potential hazards to which employees will be exposed at the host employer’s worksite.
  • While the staffing agency may have a representative at the host employer’s worksite, the presence of that representative does not transfer responsibilities for site-specific training to the staffing agency.
  • Training provided to temporary workers should be identical or equivalent to the training given to the host employers’ own employees.

Staffing agencies and host employers need to understand OSHA’s view that they are jointly responsible for temporary workers’ safety and health. As this newly published guidance makes clear, fulfilling this shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.