Can we refuse entry?

The OSH Act gives compliance officers the right to enter without delay to inspect. However, employers do have a right to refuse entry without a warrant, under the fourth amendment to the U.S. Constitution. Employers must recognize that OSHA compliance officers will obtain a warrant, and employers should expect that OSHA will conduct a more thorough inspection once obtaining the warrant. Note: In some cases, where OSHA anticipates a refusal, the agency may seek out a warrant before showing up to the site for the inspection.

Warrant applications for establishments where consent has been denied for a limited scope inspection (i.e., complaint, referral, and accident investigation) are normally limited to the specific working conditions or practices forming the basis of the inspection.

A broader inspection warrant may be sought only when there is reasonable belief, based on specific evidence (e.g., injuries or illnesses recorded in both OSHA forms 300 and 301, employee statements, or plain view observations), that violative conditions could be found in other areas of the workplace.

Ordinarily, injury and illness data from the OSHA 300 logs alone will not be sufficient to support a broader inspection, but OSHA 300 data in conjunction with other specific evidence — including incident report information from OSHA 301 forms, employee statements, or plain view observations — can be used to support an expanded inspection when the injuries or illnesses found in the OSHA 300 logs can be tied to a specific violative condition in the workplace.

For more information, see OSHA’s Field Operations Manual (CPL 02-00-163).

Penalty factors

OSHA assesses penalties with consideration to four factors:

• The gravity of the violation;
• Size of the employer’s business;
• The good faith of the employer; and
• The employer’s history of previous violations.

Gravity of the violation

The gravity of the violation is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for Serious and Other-Than-Serious violations. (Repeat and Willful violations can be based on the initial Serious or Other-Than-Serious gravity-based penalty but are multiplied by five to 10 times).

To determine the gravity of a violation, OSHA makes the following two assessments:

• The severity of the injury or illness which could result from the alleged violation.
• The probability that an injury or illness could occur as a result of the alleged violation.

After OSHA has determined the gravity and probability of a violation, a Gravity Based Penalty (GBP) is assessed based on a pre-determined range from OSHA. See the agency’s latest “Annual Adjustments to OSHA Civil Penalties” memo for details.

Size of the employer

Once a base penalty has been calculated using the Gravity-Based Penalty system, OSHA may then assign a reduction based on certain factors, including size of the employer. The size adjustment factor allows for the following maximum penalty reductions:

• 70 percent for employers with 1-10 employees
• 60 percent for employers with 11-25 workers
• 30 percent for employers with 26-100 workers
• 10 percent for employers with 101-250 workers

Employers with more than 250 workers will not receive a penalty reduction for size. Note: “Size” of an employer is calculated on the basis of the maximum number of employees for an employer at all workplaces nationwide, including State Plan States, at any one time during the previous 12 months.

For violations that are Serious Willful, the following reductions are applied instead. These reductions help minimize the impact of large penalties for small employers with 50 or fewer employees. However, in no case shall the proposed penalty be less than the statutory minimum for these employers:

• 80 percent for employers with 10 or fewer employees
• 60 percent for employers with 11-20 employees
• 50 percent for employers with 21-30 employees
• 40 percent for employers with 31-40 employees
• 30 percent for employers with 41-50 employees
• 20 percent for employers with 51-100 employees
• 10 percent for employers with 101-250 employees
• 0 percent for employers with 251 or more employees

Good faith

There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide a safe and healthy workplace.

• 25 percent for having a written and implemented safety and health program.
• 15 percent for having a documented and effective safety and health program, but with more than only incidental deficiencies.

No good faith reduction is given to employers with no safety and health program or where a Willful violation is found.

Employer history

A 10 percent reduction in proposed penalties may be given if employers have not been cited by OSHA for any Serious, Willful, Repeat, or Failure-To-Abate violations in the past five years.

On the other hand, OSHA may assess up to a 10% increase in penalties (up to the statutory maximum) if employers have been cited for any high-gravity Serious, Willful, Repeat, or Failure-To-Abate violation in the past five years.

Employer category definitions

Creating employer — One that caused a hazardous condition in violation of an OSHA standard and is citable even if the only employees exposed are those of other employers at the site.

Exposing employer — One whose own employees are exposed to the hazard. If the exposing employer created the violation, it is citable for the violation as a creating employer. If the violation was created by another employer, the exposing employer is citable if it:

1. Knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and
2. Failed to take steps consistent with its authority to protect its employees.

If the exposing employer has authority to correct the hazard, it must do so. If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to do each of the following:

• Ask the creating and/or controlling employer to correct the hazard;
• Inform its employees of the hazard; and
• Take reasonable alternative protective measures. In extreme circumstances (e.g., imminent danger situations), the exposing employer is citable for failing to remove its employees from the job to avoid the hazard.

Correcting employer — One who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

The correcting employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.

Controlling employer — One who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or, in the absence of such provisions, by the exercise of control in practice.

A controlling employer must exercise “reasonable care” to prevent and detect violations on the site. The extent of the measures that should be implemented is less than what is required of an employer with respect to protecting its own employees. This means that the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.

Establishing reasonable care

Factors that affect how frequently and closely a controlling employer must inspect to meet its standard of reasonable care include:

• The scale of the project;
• The nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses;
• How much the controlling employer knows both about the safety history and safety practices of the employer it controls and about that employer’s level of expertise;
• More frequent inspections are normally needed if the controlling employer knows that the other employer has a history of non-compliance. Greater inspection frequency may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history;
• Less frequent inspections may be appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. The most important indicator of an effective safety and health effort by the other employer is a consistently high level of compliance. Other indicators include the use of an effective, graduated system of enforcement for non-compliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.

Evaluating reasonable care

When OSHA evaluates whether a controlling employer has exercised reasonable care in preventing and discovering violations, it will ask questions such as whether the controlling employer:

• Conducted periodic inspections of appropriate frequency;
• Implemented an effective system for promptly correcting hazards; and
• Enforces the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections.

Types of controlling employers

Control established by contract — In this case, the employer has a specific contract right to control safety. To be a controlling employer, the employer must itself be able to prevent or correct a violation or to require another employer to prevent or correct the violation. One source of this ability is contract authority. This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers.

Control established by a combination of other contract rights — Where there is no contract provision granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be a controlling employer. The ability of an employer to control safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibility at the site involving almost all aspects of the job. Its responsibility is broad enough so that its contractual authority necessarily involves safety. The authority to resolve disputes between subcontractors, set schedules, and determine construction sequencing are particularly significant because they are likely to affect safety.

Architects and engineers — Architects, engineers, and other entities are controlling employers only if the breadth of their involvement in a construction project is sufficient to bring them within the parameters covered above.

Control without explicit contractual authority — Even where an employer has no specific contract rights with respect to safety, it can still be a controlling employer if, in actual practice, it exercises broad control over subcontractors at the site.

Multiple roles — A creating, correcting, or controlling employer will often also be an exposing employer. OSHA will consider whether the employer is an exposing employer before evaluating its status with respect to these other roles. Exposing, creating, and controlling employers can also be correcting employers if they are authorized to correct the hazard.

Permit spaces

The Permit-Required Confined Spaces standard, 1910.146, provides detailed instructions that you must follow when arranging to have contract workers perform work that involves permit space entry. In such situations, you must:

• Inform the contractor that the workplace contains permit spaces and that permit space entry is allowed only through compliance with a permit space program meeting the requirements §1910.146;
• Apprise the contractor of the elements, including the hazards identified and your experience with the space, which make the space in question a permit space;
• Apprise the contractor of any precautions or procedures you have implemented to protect employees in or near permit spaces where contractor personnel will be working;
• Coordinate entry operations with the contractor when both your personnel and contractor personnel will be working in or near permit spaces, as required by §1910.146(d)(11); and
• Debrief the contractor after the entry operations regarding the permit space program and any hazards confronted or created during entry operations.

In addition, contractors also have responsibilities under 1910.146. They must:

• Obtain from you any available information regarding permit space hazards and entry operations;
• Coordinate entry operations with you when you both will be working in or near permit spaces; and
• Inform you of the permit space program they will follow and of any hazards confronted or created in permit spaces.

Hazard communication

Similarly, OSHA’s Hazard Communication standard (HCS), 1910.1200, provides specific requirements related to contract employees. In meeting these requirements, the contractor or temporary agency would, for example, be expected to provide the training and information requirements specified by the HCS section 1910.1200(h)(1). You then would be responsible for providing site-specific training and would have the primary responsibility to control potential exposure conditions. You may, of course, specify what qualifications are required for supplied personnel, including training in specific chemicals or personal protective equipment (PPE). Contracts with you and the contractor or temporary employees should clearly describe the responsibilities of both parties in order to ensure that all requirements of this regulation are met.

Welding

Welding, Cutting, and Brazing, 1910.252 — Host employers are required to advise all contractors about flammable materials or hazardous conditions of which they may not be aware.

Process safety management of highly hazardous chemicals

Process Safety Management of Highly Hazardous Chemicals, 1910.119 — The host employer must develop and implement safe work practices to provide for the control of hazards during operations such as lockout/ tagout; confined space entry; opening process equipment or piping; and control over entrance into a facility by contractor employees.

The host employer, when selecting a contractor, must also obtain and evaluate information regarding the contract employer’s safety performance and programs; and inform contract employers of the known potential fire, explosion, or toxic release hazards related to the contractor’s work and the process.

The host employer must also explain to contract employers the applicable provisions of the emergency action plan required by paragraph 1910.119(n). The host maintains a contract employee injury and illness log related to the contractor’s work in process areas.

HAZWOPER

Hazardous Waste Operations and Emergency Response, 1910.120 — An employer who retains contractor or sub-contractor services for work in hazardous waste operations must inform those contractors, sub-contractors, or their representatives of the site emergency response procedures and any potential fire, explosion, health, safety or other hazards of the hazardous waste operation that have been identified by the employer’s information program.

The host must also make the written safety and health program available to any contractor or subcontractor or their representative who will be involved with the hazardous waste operation.

Grain handling

Grain Handling Facilities, 1910.272 — The host employer must inform contractors performing work at the grain handling facility of known potential fire and explosion hazards related to the contractor’s work and work area. The host must also inform contractors of the applicable safety rules of the facility, and explain applicable provisions of the emergency action plan to contractors.

Lockout/Tagout

The Control of Hazardous Energy (Lockout/Tagout), 1910.147 — The host employer and the contractor must inform each other of their respective lockout or tagout procedures. The host must ensure that his/her employees understand and comply with the restrictions and prohibitions of the contractor’s energy control program.

Recordkeeping

Under OSHA’s recordkeeping rule, covered employers are required to record the injuries and illnesses of workers they supervise daily, even if those workers are not carried on the employer’s payroll. This normally applies to employees of a temporary help service or leasing agency, and does not include independent contractors or employees of an independent contractor, or a sole proprietor.

Daily control

The determining factor for recordability is the degree of control the host employer asserts over the manner in which the work is done, and the degree of skill and independent judgment the contract worker is expected to apply. Generally, if you hire independent contractors to do work, and you do not have to train the contracted employees, the contractor must maintain his or her own injury and injury recordkeeping system. If you hire a temporary worker, train that person to do the job, and provide the day-to-day supervision, you must maintain the injury and illness records. If the rule applies to your company, some of the provisions you will need to comply with include the following:

• You are required to record on the OSHA 300 Log the work-related recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the injuries and illnesses that occur to employees who are not on your payroll if you supervise those employees on a day-to-day basis. If your business is organized as a sole proprietorship or partnership, the owner or partners are not considered employees for recordkeeping purposes.
• If a self-employed person is injured or becomes ill while doing work at your business, you do not need to record the injury or illness. Self-employed individuals are not covered by the OSH Act or the recordkeeping rule.
• If you obtain employees from a temporary help service, employee leasing service, or personnel supply service, you have to record injuries or illnesses occurring to those employees if you supervise them on a day-to-day basis.
• If an employee in your establishment is a contractor’s employee, the contractor is responsible for recording the injury or illness if the contractor provides day-to-day supervision. If you supervise the contractor employee’s work on a day-to-day basis, however, you must record the injury or illness.
• An injury or illness must never be recorded twice. You and the temporary help service, employee leasing service, personnel supply service, or contractor should coordinate your efforts to make sure that each injury and illness is recorded only once — either on your OSHA 300 Log (if you provide day-to-day supervision), or on the other employer’s OSHA 300 Log (if that company provides day-to-day supervision).

One log or two?

OSHA’s view is that an establishment should have only one 300 Log. Injuries and illnesses for all employees are entered into that record to create a single summary at the end of the year. OSHA does not require temporary workers or any other types of workers to be identified with special titles in the “job title” column, but also does not prohibit the practice. Thus, you can supplement the worker occupation column to include an identification of a temporary or contract worker.

Other responsibilities

Just because a regulation does not specifically address contractors doesn’t mean you, as host, don’t have responsibilities to those workers. For instance, OSHA has said that you are responsible for providing personal protective equipment (PPE) for site-specific hazards to which temporary workers may be exposed, even though this isn’t necessarily spelled out in OSHA general requirements for PPE, found in 1910.132. Keep in mind, however, that you may specify the services you want the temporary agency or contractor to supply, including providing PPE for the placed employees.

Develop a written policy

A good way to start meeting your contractor responsibilities is to develop a contractor safety policy. This policy should establish guidelines for contractors working at your company. The guidelines will help you:

• Provide a safe working environment.
• Govern facility relationships with outside contractors.
• Ensure that contract employees and your employees are trained to protect themselves from all potential and existing hazards.

The contractor safety policy will establish uniform requirements designed to ensure that contractor safety orientation, coordination, and safety administration practices are communicated to and understood by employees.

Get involved in the selection process

In many cases, the safety department is not responsible for bringing in a contractor. For instance, when the personnel department orders new carpeting for its offices, the safety manager may have little obvious reason for getting involved with the contractor selection process. However, this doesn’t mean the safety manager should not get involved.

A safety manager should be involved in the selection process of every contractor. While the personnel department (or purchasing) may focus on the color and quality of the carpet, and the purchasing department on the cheapest labor, the safety manager must focus on the contractor’s safe work practices. When selecting contractors, perform an extensive evaluation of contractors who meet the bidding criteria — much like personnel does with prospective employees. Without this evaluation, you may be leaving contractor safety to the “luck of the draw.”

Evaluate contractors before selection

A good way to begin the selection process is to obtain and evaluate information regarding a contractor’s safety performance and programs.

To determine past safety performance, consider the contractor’s:

• Employee injury records such as the workers’ compensation Experience Modification Rate (EMR or MOD) for the past three years and the contractor’s past safety record in performing jobs of a similar nature. For contractors whose safety performance on the job is not known, obtain information on injury and illness rates and experience and obtain contractor references.
• OSHA logs, which include the injury and illness rates (number of lost-time accident cases, number of recordable cases, number of restricted workday cases, number of fatalities) for the past three years; and incidence rates for lost-time accidents and recordables for the past three years.
• Written safety program and training system.
• Prior history performing contract work with your organization.

Evaluate contractor work methods and experience. Ensure that for the job in question, the contractor and its employees have the appropriate:

• Job skills.
• Equipment.
• Knowledge, experience, and expertise.
• Permits, licenses, certifications, or skilled tradespeople necessary for performing the work in question.

You should also obtain the contractor’s current certificate of insurance for workers’ compensation and general liability coverage. Furthermore, you will want to determine the contractor’s capability to comply with all applicable local, state, and federal safety requirements, as well as with any safety rules and regulations set forth by your company. Ways to determine past compliance with such safety regulations include:

• Requesting copies of any citations for violations occurring within the last three years to determine the frequency and type of safety laws violated.
• Having all bidders detail in writing any safety programs in place, infractions, accidents, and workers’ compensation claims within the last three years.

This information will provide your company with a solid background on that contractor’s safety performance and adherence to safety rules and regulations.

Some companies, particularly in industries such as oil and gas, utilize 3rd party entities to evaluate or “pre-qualify” contractors with regard to safety and health. To bid for a project, the contractor must have met the criteria.

During the work

A host employer’s responsibilities do not end at the selection process. The host also needs to ensure safety throughout the operation. A few things to consider:

• Tell contractors about your company. Make sure they understand what you expect from them when it comes to working safely. Let them know about your company’s culture. Share safety data sheets (SDSs) on chemicals that contract workers might be exposed to at your site and get copies of SDSs for all chemicals contractors bring in.
• Ask if there will be any subcontractors involved in the work. If so, treat them as you would the contractor. Under no circumstance should subcontractors perform work without your approval.
• Tell the contractor about your enforcement policy. After you review what you expect from your contractors, explain the consequences for not meeting your expectations. Consequences can be anything from a temporary work stoppage or dismissal of unsafe workers, to canceling the contract altogether (make sure this is included in the contract).
• Decide up-front who’s responsible for what. Make sure you know who’s going to be responsible for the day-to-day supervision of the contract workers. If it’s your company, make sure you have the resources to do the job. If it’s the contractor, make sure they have the resources.
• Get a detailed plan of the contractor’s intentions. It’s important that you know exactly what tasks the contractor plans to perform to complete the job. Make sure these tasks will not impact your operations. Also, specify that any changes to the plan must be approved by your company.
• Train contractors on site-specific items. This is very important. The best contractor in the world can’t train its workers in things only your company knows about.
• Keep an eye on the job. Conduct frequent evaluations of contractors at your facility. Don’t forget about them. If possible, appoint someone to monitor contractors’ work.

Before work begins

The host employer will need to designate a representative to coordinate and communicate all safety and health issues with the contractor. The designated representative should have a copy of the contract, be thoroughly familiar with its contents and with the safety and health aspects of the work, or know who to call to obtain this information. The host’s designated representative should ensure that the following company responsibilities are carried out:

• Provide a copy of the facility’s written safety policies and procedures to the contractor.
• Inform the contractor of any emergency signals and procedures, including the telephone numbers of the nearest hospital, ambulance service, and fire department.
• Conduct an inspection of the proposed worksite area before the pre-start-up meeting so any known information about onsite hazards, particularly non-obvious hazards, are documented and thoroughly communicated to the contractor.
• Work directly with the contractor’s designated representative, with whom all contacts should be made.
• Conduct a pre-start-up meeting (walk through) with the contractor’s designated representative and a supervisor from each area of the plant that will be involved in the contractor’s work.
• Review all contract requirements related to safety and health with the contractor’s designated representative, including, but not limited to, rules and procedures, personal protective equipment, and special work permits or work procedures.
• Advise the contractor that the facility safety and health policies must be followed. A copy of the host facility’s safety plans must be furnished to the contractor.
• Inform the contractor’s designated representative of the required response to employee alarms and furnishing the contractor with a demonstration or explanation of the alarms.
• Communicate any safety and health hazards (particularly non-obvious hazards and hazard communication issues). It is the contractor’s responsibility to convey this information to its employees.
• Review worksite preparation procedures before the contractor begins initial work.
• Identify connect-points for all services, such as steam, gas, water, and electricity. Define any limitations for the use of such services.
• Ensure that every affected host employee receives training on all hazards to which they may be exposed during the contractor’s work.

During the work

• Limit access to contractor work areas.
• Monitor the contractor’s compliance with the contract throughout the work. When checking contractor work during the project, note any negligent or unlawful act or condition in violation of safety standards or requirements. Any items noted should be immediately brought to the attention of the contractor’s designated representative in writing, with a copy of the notice being sent to the contractor’s home office concurrently.
• If an unsafe act or condition is noted that creates an imminent danger of serious injury, take immediate steps with the contractor’s designated representative, or in his or her absence, the contractor’s employees to stop the activity. Do not permit the continuation of work that violates a regulation or is unsafe.
• Document all discussions, including place, time, and names of contractor employees in attendance.
• Contact and approve the contractor before its employees begin work each day, unless it is routine service or maintenance work or periodic outdoor service or maintenance work.
• Do not allow tools and equipment to be loaned to outside contractors and their subcontractors. Spell out ahead of time what company tools contractors are allowed to use, if any.
• Contact the nearest medical facility in emergency situations where severity of the injury dictates immediate attention.
• Obtain a copy of each OSHA recordable injury report from the contractor and subcontractor.
• Investigate and report to the facility manager all personal injuries to contractor and subcontractor employees.
• Investigate and report any property losses and maintain a contractor accident report file.

Wrap-up

After conclusion of the contract work, you, as the host employer, should complete a post-project assessment of the contractor’s safety performance to be used for future reference, along with a recommendation on whether or not to re-hire the contractor. By using these guidelines to form and maintain a clear understanding of all aspects of the job, the host and the contractor can develop a working partnership of mutual respect that will be beneficial to both for years to come.

What are temporary workers?

Temporary workers (temp workers) are workers who are assigned to host employers through a staffing firm to perform work for the host employers on a temporary basis. They typically perform work for several employers throughout the year, and are often utilized so the host employer does not have to bring on a permanent worker for a seasonal or occasional need, or, in some cases, to perform labor-intensive jobs.

Temp worker employment has been on the rise over the past three years, largely due to the economic recession. Currently, there are nearly 3 million temporary workers in the U.S. workplace, according to Bureau of Labor Statistics (BLS) data. The number is expected to continue to rise in the foreseeable future.

Shared responsibility for safety/compliance

It is a fundamental principle that temporary workers are entitled to the same protections under the Occupational Safety and Health (OSH) Act as all other covered workers. But, OSHA has found recently that these workers are not protected adequately. They are often placed in a variety of jobs, including the most hazardous jobs, without proper training. This has led to several fatalities and serious injuries—many on the temp worker’s first day on a job. Further, OSHA says its compliance officers regularly encounter worksites with temporary workers who have not been trained properly or given appropriate personal protective equipment (PPE).

Enforcement note

Under an initiative launched in 2013, known as the Temporary Worker Initiative (TWI), OSHA directed its field personnel to place an increased focus on temporary worker safety during compliance inspections. Therefore, it is essential that both the host employer and the staffing agency comply with all relevant OSHA requirements. OSHA could hold both employers responsible for any violative condition(s). Temporary staffing agencies and host employers share control over the temporary worker, and, therefore, are jointly responsible for safety and health, OSHA says.

Who is in best position to protect?

The staffing agency and host employer must work together to ensure that OSH Act requirements are fully met and that the temporary worker is provided a safe workplace, according to OSHA. This requires effective initial and follow-up communication and a common understanding of the division of responsibilities for safety and health. OSHA has directed its compliance officers to review any written contract(s) between the staffing agency and the host employer during inspections and determine if the contract addresses responsibilities for employee safety and health. It is important to note, however, that the contract’s allocation of responsibilities may not discharge either party’s obligations under the OSH 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, OSHA says.

Compliance point - Staffing agency responsibilities

Although the host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific OSHA 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. OSHA does not expect staffing agencies to become experts on all potential hazards at the host’s workplace, but nevertheless says they have a duty to diligently inquire and determine what, if any, safety and health hazards are present at their clients’ workplaces. For example, if a staffing agency is supplying workers to a host where they will be working in a manufacturing setting using potentially hazardous equipment, the agency should take reasonable steps to identify any hazards present, to ensure that workers will receive the required training, protective equipment, and other safeguards, and then later verify that the protections are in place.

While each arrangement will be fact-specific, generally speaking OSHA expects that the staffing agency and the host employer should each assume responsibility for the compliance and safety issues they are in the best position to control and address.

Prior to accepting a new host employer as a client, or a new project from a current client, both parties should jointly review the task assignments and any job hazard analyses in order to identify and eliminate potential safety and health dangers and provide the necessary protections and training for workers.

Injury/illness recordkeeping

Injury and illness recordkeeping responsibility under OSHA requirements is determined by supervision. Employers must record the injuries and illnesses of temporary workers if they supervise such workers on a day-to-day basis. Day-to-day supervision occurs when “in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.” (Essentially, an employer is performing day-to-day supervision when that employer controls conditions presenting potential hazards and directs the worker’s activities around, and exposure to, those hazards.)

In most cases, the host employer provides this supervision.

While the staffing agency may have a representative at the host employer’s worksite, the presence of that representative does not necessarily transfer recordkeeping responsibilities to the staffing agency, OSHA says. As long as the host employer maintains day-to-day supervision over the worker, the host employer is responsible for recording injuries and illnesses.

The non-supervising employer (generally the staffing agency) still shares responsibility for its workers’ safety and health. The staffing agency, therefore, should maintain frequent communication with its workers and the host employer to ensure that any injuries and illnesses are properly reported and recorded. Such communication also alerts the staffing agency to existing workplace hazards and to any protective measures that need to be provided to its workers. Ongoing communication is also needed after an injury or illness so the recording employer can know the outcome of the case.

The staffing agency and host employer must set up a way for employees to report work-related injuries and illnesses promptly and tell each employee how to report work-related injuries and illnesses. In addition, employees, former employees, their personal representatives, and their authorized employee representatives have the right to access the injury and illness records.

In order to provide safe working conditions, information about injuries and illnesses should flow between the host employer and staffing agency. If a temporary worker sustains an injury or illness and the host employer knows about it, the staffing agency should be informed, so the staffing agency knows about the hazards facing their workers. Equally, if a staffing agency learns of an injury or illness, they should inform the host employer so that future injuries might be prevented, and the case is recorded. As a best practice, the staffing agency and host employer should establish notification procedures to ensure that when a worker informs one employer of an injury or illness, the other employer is apprised as well. The details of how this communication is to take place should be clearly established in contract language.

PPE

Host employers are generally responsible for providing PPE for site-specific hazards to which temporary employees may be exposed—largely because it is the host employer who has conducted the required hazards assessment of the workplace to determine the need for PPE.

However, the host may specify the services that it wants the staffing agency to supply, including provision of PPE for the placed employees. Though, ultimately, it becomes the host employer’s responsibility to ensure the PPE is adequate for the exposures in the workplace, and that workers wear the PPE where needed (assuming it is the host employer who is supervising the work).

Training

In general, it is the responsibility of the staffing agency to ensure that employees have received proper training. In practice, even when the staffing agency has provided basic training, the host employer provides the workplace-specific training appropriate to the employees’ particular tasks. For example, a staffing agency can provide general Hazard Communication (Hazcom) training, but only the host employer can train where the Safety Data Sheets (SDSs) are kept in the facility, the chemicals used, etc.

Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals. The directive titled Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200, CPL 02-02-038, specifically discusses this issue:

• [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)

Medical exposure records

When medical surveillance or monitoring is indicated (such as hearing exams, respiratory protection evaluations, or evaluation/treatment for exposure to toxic substances), the host employer must offer and perform the required medical surveillance or evaluations. The staffing agency must ensure that the records of the required medical surveillance or evaluations are maintained in accordance with the appropriate OSHA standards.

This means the temporary staffing agency is required to maintain cumulative exposure data (e.g., 30-day lead exposure, 6-month noise exposure, etc.), when the employee works for several different companies during the year. But, each of those host companies would have responsibilities for ensuring the workers were following proper procedures, wearing appropriate PPE, etc., and to communicate to the host employer (ideally before work begins) that workers will be exposed to such hazardous conditions.

Forklift training

In a 2016 bulletin, OSHA addresses the responsibility for training temporary workers to operate forklifts and other powered industrial trucks (PITs) safely at a host employer’s worksite. The OSHA standard requires employers to develop and implement a training program based on the general principles of safe-truck operation, the types of vehicle being used in the workplace, the hazards of the workplace created by the use of the vehicle, and general safety requirements.

To be effective, OSHA says training must address the unique characteristics of the type of vehicle the temporary worker is being trained to operate. In addition, employers must ensure that operators have successfully completed required training prior to operating PITs in the workplace.

How does this work when temp workers are involved?

Who has responsibility for training, evaluation, and certification?

The host employer and staffing agency share responsibility for training temporary workers in operating powered industrial trucks, according to OSHA. The training requirements for a powered industrial truck operator are performance-oriented. This permits employers to tailor a training program to the characteristics of the workplace and the specific types of powered industrial trucks operated.

Determining the best way to protect workers from injury largely depends on the type of truck operated and the hazards of the worksite. While both the host employer and the staffing agency are responsible for ensuring that the employee is properly trained in powered industrial truck operations, the employers may decide that a division of the responsibility is appropriate. As a recommended practice, OSHA says the staffing agency and host employer should jointly review the task assignments and job hazards that would include the type(s) of powered industrial trucks workers will operate to identify and eliminate potential safety and health hazards. The details of the training and protections each employer will provide can be clearly established in the language of the contract between the host employer and the staffing agency. However, OSHA cautions that neither employer may avoid its ultimate responsibilities under the OSH Act by requiring another party to perform them.

Generic versus site-specific

According to the OSHA bulletin, generally, the staffing agency is responsible for generic powered industrial truck training and the host employer is in the best position to provide the necessary site-specific powered industrial truck training and evaluation, as the host employer is most familiar with the equipment being used and controls the conditions of the worksite.

Further, OSHA says that such training and evaluation should be the same as that provided to the host employer’s own employees in the same jobs.

Both staffing agencies and host employers must ensure that temporary workers receive proper generic and site-specific training and evaluation. It is the staffing agencies’ obligation to take reasonable steps to inquire about the host employer’s training program and have a reasonable basis for believing that the host employer’s powered industrial truck training adequately addresses the potential hazards of operating powered industrial trucks to which its employees might be exposed at the host employer’s worksite.

Refresher training

Refresher training is required whenever an operator demonstrates a deficiency in the ability to safely operate the powered industrial truck or an incident involving a powered industrial truck has occurred. The need for refresher training may be recommended by the staffing agency if the temporary worker is involved in an incident, but the need for refresher training is usually best determined and provided by the host employer, OSHA says.

Compliance point - Evaluation always required by host

In a particularly important point, OSHA says that even if the staffing agency supplies trained powered industrial truck operators, the host employer must still verify that training and provide site-specific information and training on the particular types of powered industrial trucks and working conditions present at the worksite. The host employer must also conduct a workplace evaluation of each operator supplied by the staffing agency. The extent of the training and evaluation provided by the host is based upon the operators’ past experience and may not need to be duplicated or as extensive as the initial training and evaluation.

Records

Employers must certify that each operator receives the training and evaluation, and also re-evaluate each operator at least once every three years. If the staffing agency is providing trained powered industrial truck operators, it may be in the best position to keep training and evaluation records. In such cases, OSHA says the host employer may choose, but is not required, to maintain or store additional copies of the powered industrial truck training records of temporary workers. However, the host employer must know where the training and evaluation records are located and they must be accessible to an OSHA compliance officer during an inspection.

As a recommended practice, the host employer and staffing agency may agree to share training records to ensure both parties are able to verify that the training is completed. Communication between the staffing agency and host employer is essential to ensure that the worker is competent in the operation of the powered industrial trucks being used. In addition, communication between the staffing agency and the temporary worker is crucial to ensure that the worker is not being assigned to work with powered industrial trucks that he or she may not be competent to operate.

What responsibility do we have as a host employer if we bring contractors in to work on our HVAC equipment? Our employees may help out with certain tasks.

There are many variables that could come into play with this situation, for example, who controls the work, whose employees are exposed, and who creates the hazards. OSHA does clarify this somewhat in its Compliance Directive Multi-Employer Citation Policy, which should be consulted. (Generally speaking, OSHA holds the employer of the employees exposed to the hazard ultimately responsible. But, as noted in the Directive, in some cases, more than one employer may have responsibilities.)

Who is responsible for recording injuries to temp workers, the host or the staffing agency?

Whoever provides day-to-day supervision of the worker when the injury occurs is the entity that must record the injury on their logs. If that is the host, then the host must record (OSHA says in most cases it is the host). In no circumstance, should the injury be recorded on both the host employer’s and the staffing agency’s log.

Are we responsible for training temp workers we bring onsite? What about if it’s just for a day or two? Can the training be shorter than the usual training?

OSHA says that in most cases the host employer would be responsible for providing site-specific training, such as training on specific chemicals, how to operate specific machinery, etc. However, the staffing agency may provide generic training, such as an overview of the OSHA standards. OSHA expects training of temp workers to be comparable to that of regular workers; it must provide the necessary information to allow the worker to work safely.