Temporary workers pose unique safety and compliance challenges for employers. Chief among them: determining who is responsible for the workers’ safety. In a typical work arrangement, it is clear to employers that they are responsible for the safety of their employees. However, with temporary workers, there are at least two employers involved, which can make it difficult to sort out responsibility. The result, unfortunately, is that too often no one assumes the responsibility. That failure exposes the temporary workers to serious dangers. It also exposes both employers to potential OSHA fines.
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.
Consider the following scenario. A temporary worker was hired to work in a manufacturing facility. He was assigned to run a machine. When he was asked if he knew how to run the machine, he replied that he did because he was afraid to admit that he did not know how to run the machine and thought that he would be let go. Thirty minutes later his arm was severed and was not able to be reattached.
When the compliance officers visited the injured temporary worker at his home to interview him about the incident, there were several guitars hung up on the wall. The compliance officer asked who played guitar and the victim replied that “he used to.” The scenario is just one of many real-life examples that OSHA’s leadership have pointed to with regard to temporary worker safety. It is a scenario that should be top of mind for all employers who utilize temporary workers.
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. Yet, OSHA has found that these workers are not protected adequately in many cases. 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).
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.
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.
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.
More information
To learn more about OSHA's TWI initiative, visit www.osha.gov/temporaryworkers. The webpage offers several bulletins that explore the responsibilities of the staffing agency and the host employer in regard to various hazards, including powered industrial trucks, noise exposure, hazardous energy, extreme heat, and others.
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.
