A recently released Occupational Safety and Health Administration (OSHA) Interpretation Letter outlines the division of responsibility between a temporary staffing agency and the client employer to provide worker safety training, perform hazard communication, and maintain OSHA-related records. Although agency Interpretation letters are limited to the circumstances presented by the person or organization requesting guidance, they shed light on how OSHA would apply its laws and regulations in similar scenarios. The instant Interpretation letter is helpful for any employer that provides temporary personnel to other businesses, as well as one that uses the services of a temporary staffing agency.
The letter explains that which entity is primarily responsible for performing the OSHA safety requirements depends on the degree of supervisory authority and worksite control either exercises. As stated in the letter, “both the temporary agency and the host employer have the responsibility to ensure that training, hazard communication, and recordkeeping requirements are fulfilled. Therefore, the issue at hand is the division of responsibility.”
With respect to training requirements, OSHA explains that generally, the temporary staffing agency must ensure that employees receive proper training. That said, the host employer provides worksite safety training specific to the worker’s job tasks. Therefore, “in order to fulfill its obligation under such circumstances, the temporary agency must have a reasonable basis for believing that the host employer's training adequately addresses potential hazards employees may be exposed to at the host worksite.”
Both the staffing agency and the host employer are responsible for adequately training employees about any hazardous chemicals present at the worksite. The letter references an earlier OSHA directive on this subject:
[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)
Finally, the Interpretation letter explains that it is the responsibility of the employer to maintain and report workplace injuries and illnesses for all employees on its payroll and those employees it supervises on a day-to-day basis. Therefore, if a host employer supervises workers provided by a temporary staffing agency on a day-to-day basis, it must maintain the OSHA 300 injury and illness log for these individuals. By the same token, if only the temporary staffing agency supervises the workers, it is the entity responsible for maintaining and reporting these records. If both the host employer and the staffing agency share supervisory duties, the reporting obligation is less clear. In such a scenario, OSHA recommends that both entities reach an agreement regarding which employer will shoulder this burden. The letter emphasizes that “only one employer's log should contain a record of injuries and illnesses of the employees.” That said, OSHA makes clear that both the temporary employer and the host employer will be cited for violations if “OSHA finds that both employers were responsible for the violative condition(s).”
Overall, the agency makes the following recommendation:
To ensure that there is clear understanding of each employer's role in protecting employees, OSHA recommends that the temporary staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations.