By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

OSHA has just announced its first in a series of guidance documents concerning compliance with safety and health requirements when temporary workers are employed under joint (or dual) employment of a staffing agency and a host employer. TWI Bulletin No. 1.

We had blogged previously about Administrator David Michaels recent op-ed piece on this topic. Michaels drew a direct connection between the length of time on the job and the risk of death doing that job: “we have known for a century that new workers are at increased risk for occupational injury and fatality, and that higher risk is due to a lack of safety training and experience at that work site.”

Earlier last year an OSHA memorandum on the topic stated that “inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”

Now in this Bulletin OSHA focuses on the scenario where a staffing agency supplies temporary workers to a business. Conceptually both employers may be responsible to some degree for the conditions of employment and for complying with the law. The Bulletin seeks to clarify how to identify which employer (the staffing agency or the host employer) is responsible for recording work-related injuries and illnesses of temporary workers on the OSHA 300 log.

In summary, OSHA concludes that “in most cases, the host employer is the one responsible for recording the injuries and illnesses of temporary workers.” In clarifies that “as long as the host employer maintains day-to-day supervision over the worker, the host employer is responsible for recording injuries and illnesses.”

In our view, the conclusion drawn by OSHA may not, in most cases, be quite so clear. Employers that do contract for and use temporary workers at their worksites should be encouraged by this Bulletin to consider carefully the employment relationships they have created — and consider ahead of time who it believes will be responsible for recording OSHA log events.