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A company typically contacts an agency to hire temporary employees. The temporary workers usually have a continuing relationship with the agency as they move from job to job. The agency is aware of the type of work that the temporary employee is performing and should also have a general idea of the types of hazards encountered there. The company who hires the temporary worker usually provides the day-to-day job assignments and supervision, and is aware of the worksite-specific hazards that the temporary employee will be exposed to. OSHA says host employers must treat temporary workers like any other workers in terms of training and safety and health protections.
Scope
There is a shared responsibility between the temporary agency and the client employer to make sure that the temporary worker has received adequate safety training. The contract between the agency and the client company should be used as a tool to clarify how required training will be provided. Any agency-supplied training should be evaluated by the client employer to make sure it is appropriate.
The temporary agency should take the responsibility for providing basic safety training to the extent that it can without knowing the specific hazards. This basic training will familiarize the worker with training requirements.
The client employer should have a clear idea of the jobs that will be assigned to the temporary employee and identify the hazards involved. The hazards will indicate the need for training. If exposure monitoring or medical surveillance is required to identify or control the hazard, the client employer needs to provide it.
Examples of the types of site-specific training that would be needed by typical temporary workers could include:
- Hazard communication.
- Emergency evacuation and reporting emergencies.
- Lockout/tagout.
- Personal protective equipment.
- Hearing protection.
- Process safety management.
- Portable fire extinguishers.
OSHA considers temporary employment agencies who send their own employees to work at other facilities to be employers whose employees may be exposed to hazards. Since it is the temporary agency that maintains a continuing relationship with its employees, and another employer (the client) who creates and controls the hazards, there is a shared responsibility for assuring that the employees of the temporary agency are protected from the workplace hazards. The client has the primary responsibility of such protection.
OSHA could hold both the host and temporary employers responsible for a violative condition(s) — and that can include lack of adequate training regarding workplace hazards. Temporary staffing agencies and host employers share control over the worker, and are therefore jointly responsible for temporary workers’ safety and health.
Regulatory citations
- 29 USC 654 — Duties of employers and employees (including Pub. L. 91–596 “OSH Act of 1970” 5(a)(1), the “General Duty Clause”)
Key definitions
- General Duty Clause: Section 5(a)(1) of the Occupational Safety and Health Act of 1970, which requires that every worker must be provided with a safe and healthful workplace. It specifically states: “Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
- Joint employer: OSHA considers the staffing agency and host employer to be “joint employers” of temporary workers. As such, they are jointly responsible for maintaining a safe work environment for temporary workers.
- Temporary worker initiative: An initiative launched by OSHA in 2013 to increase the agency’s focus on temporary workers in order to highlight employers’ responsibilities to ensure these workers are protected from workplace hazards.
- Temporary workers: For the purposes of the Temporary Worker Initiative, are workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.
Summary of requirements
Tracking injuries and illnesses. Tracking injuries and illnesses experienced by “temporary” workers can be problematic in terms of counting days of restricted work activity and days away from work. OSHA recognizes the difficulties associated with this situation. If the client employer is unable to track the exact number of lost workdays associated with an injury or illness experienced by a “temporary” worker, then the client employer should make a good faith estimate of the number of lost workdays the case would likely require, and enter that estimate on the OSHA Log.
Recordkeeping. The primary factor to be considered in determining who should record a work-related injury or illness experienced by a temporary worker is determining who supervises the worker on a day-to-day basis.
If the worker is subject to the day-to-day supervision of the client employer, that firm should record the case on its own OSHA Log. Day-to-day supervision generally exists when the employer “supervises not only the output, product, or result to be accomplished by the person’s work, but also the details, means, methods, and processes by which the work objective is accomplished.” In contrast, independent contractors “are primarily subject to supervision by the firm only in regard to the result to be accomplished or end product to be delivered” and the client employer would not be responsible for recording their injuries and illnesses.
In other words, labeling workers who are subject to day-to-day supervision by the client employer as independent contractors for some purposes does not relieve the client employer’s obligation to record their occupational injuries and illnesses on the client employer’s own OSHA 300 log, pursuant to 29 CFR Part 1904.
Training. Typically, staffing agencies provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.
An issue that can create confusion is determining whose responsibility it is to ensure that temporary employees who claim to have prior training are in fact properly trained.
For example, client employers that employ new forklift operators or temporary labor operators who claim prior training must evaluate the applicability and adequacy of prior training to determine if all required training topics have been covered.
Factors to consider include:
- The type of equipment operated;
- Amount of experience on that equipment;
- How recent was this experience; and
- The type of environment in which the operator worked.
The operator’s competency may also simply be evaluated by the employer or another person with the requisite knowledge, skills, and experience to perform evaluations. The client employer can determine from this information whether the experience is recent and thorough enough, and whether the operator has demonstrated sufficient competence in operating in the powered industrial truck to forego any or some of the initial training. Some training on site regarding specific factors of the new operator’s workplace is likely always to be necessary.