By James L. Curtis and Craig B. Simonsen

Thomas Galassi, the Director of OSHA’s Directorate of Enforcement Programs, recently issued a Memorandum to Regional Administrators on OSHA’s “Policy Background on the Temporary Worker Initiative.” It provides a good lesson from the Agency’s perspective.

We had blogged previously about OSHA’s national emphasis on temporary workers. For instance, Administrator David Michaels published an op-ed piece on the topic. This was followed by the Agency’s publication of its first in a series of Temporary Worker Initiative (TWI) Guidance Documents, this one on injury and illness recordkeeping requirements. OSHA had announced the temporary worker initiative in a memorandum last year. We had published a detailed analysis of the initiative in this article on “All Employees Are Created Equal: OSHA’s New Initiative on Temporary Employees.”

The Galassi Memorandum explains that for the purposes of the TWI, “temporary workers” are workers hired and paid by a “staffing agency,” that are supplied to a “host employer” to perform work on a temporary basis. In general, “OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the worker.” Galassi notes that “joint employment is a legal concept recognizing that, in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance with statutory and regulatory requirements. For example, the staffing agency often controls a worker’s paycheck and selects the host employer location where the worker will be sent. The host employer, in turn, assigns the particular work to be done each day and controls operations in the physical workplace.”

Identifying Employer Responsibilities

For employers, this is the important bit.  Galassi spells out that “OSHA compliance officers should review any written contract(s) between the staffing agency and the host employer and determine if it addresses responsibilities for employee safety and health. It should be understood, however, that the contract’s allocation of responsibilities may not discharge either party’s obligations under the Act.”

The extent of the obligations each employer has will vary depending on workplace conditions and may be clarified by their agreement or contract. Their duties will sometimes overlap. The staffing agency or the host may be particularly well suited to ensure compliance with a particular requirement, and may assume primary responsibility for it. For example, staffing agencies might provide general safety and health training applicable to many different occupational settings, while host employers provide specific training tailored to the particular hazards at their workplaces. If the staffing agency has a long-term, continuing relationship with the temporary worker, it may be best positioned to comply with requirements such as audiometric testing or medical surveillance. The host employer, in turn, would be the primary party responsible for complying with workplace-specific standards relating to machine guarding, exposure to noise or toxic substances, and other workplace-specific safety and health requirements.

[A]lthough the host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements, the staffing agency also has a duty. Staffing agencies must ensure they are not sending workers to workplaces with hazards from which they are not protected or on which they have not been trained.

Galassi summarizes Regional responsibilities in these cases when an investigation reveals a temporary worker allegedly exposed to a hazardous condition, if the worker is considered employed by both a staffing agency and a host employer. OSHA will consider issuing citations to either or both of the employers, depending on the specific facts of the case. “This will require Area Offices to make a careful assessment of whether both employers have fulfilled their respective compliance responsibilities in each individual case. These inspections are considered high priority and early consultation between OSHA and [the Secretary of Labor] is essential to facilitate case development.”

Host employers and staffing agencies should take heed. The TWI will be another tool being employed by the Agency in its mission of imposing additional obligations on employers to ensure that all employees, temporary or full time, are provided adequate health and safety training and protected from unsafe working conditions. Specifically, as noted above, employers should study carefully its agreements with staffing agencies to ensure responsibilities are well spelled out. In addition, host employers should more closely scrutinize their use of temporary employees and whether those employees are receiving sufficient training and protection. As we have noted from the many facets of this OSHA national emphasis, the attention of federal and state agencies is on this issue and employers should be taking steps to ensure that all employees, whether they are full time or temporary, are aware of and properly protected from workplace hazards.