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.