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

The Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health released yesterday their “new” guidance for “Recommended Practices” to protect temporary workers’ safety and health, for staffing agencies and host employers. DHHS No. 2014-139 (August 25, 2014).

This new guidance comes on the heels of OSHA’s Memorandum to Regional Administrators on OSHA’s “Policy Background on the Temporary Worker Initiative.” OSHA Administrator Dr. David Michaels said about the Recommended Practices guidance that “an employer’s commitment to the safety of temporary workers should not mirror these workers’ temporary status.” “Whether temporary or permanent, all workers always have a right to a safe and healthy workplace. Staffing agencies and the host employers are joint employers of temporary workers and both are responsible for providing and maintaining safe working conditions.” Emphasis added.

In a virtual shopping list, these are the Recommended Practices as provided in the new guidance:

  • Evaluate the Host Employer’s Worksite.
  • Train Agency Staff to Recognize Safety and Health Hazards.
  • Ensure the Employer Meets or Exceeds the Other Employer’s Standards.
  • Assign Occupational Safety and Health Responsibilities and Define the Scope of Work in the Contract.
  • Injury and Illness Tracking.
  • Conduct Safety and Health Training and New Project Orientation.
  • Injury and Illness Prevention Program.
  • Maintain Contact with Workers.

In instructions on these listed practices the Agencies specify that staffing agencies need not become “experts on specific workplace hazards.” However at the same time staffing agencies rather should determine “what conditions exist at the worksite, what hazards may be encountered, and how to best ensure protection for the temporary workers.”

When feasible, the guidance declares, the agency-host contract should clearly state which employer is responsible for specific safety and health duties. “The contract should clearly document the responsibilities to encourage proper implementation of all pertinent safety and health protections for workers.”

Note that on injury and illness tracking the guidance states that “both the host employer and staffing agency should track and where possible, investigate the cause of workplace injuries.” This guidance is given even though OSHA only requires that injury and illness records be kept by the employer who is providing “day-to-day supervision, i.e., controlling the means and manner of the temporary employees’ work.”

In addition, the guidance indicates that “host employers should provide temporary workers with safety training that is identical or equivalent to that provided to the host employers’ own employees performing the same or similar work.”

While the Agencies indicate that “unless otherwise legally required, these recommendations are for the purpose of guidance and in some cases represent best practices,” host employers and staffing agencies may be certain that this new guidance will be the yard stick that OSHA inspectors use to evaluate their policies, training programs, and work sites.