In April 2013, OSHA launched an enforcement initiative aimed at reducing injuries and illnesses suffered by temporary workers.  According to OSHA, the temporary worker industry has grown 125% since 1990 and approximately 10 million employees are in temporary jobs per year.  Given the increased reliance on staffing agencies and temporary workers, OSHA has made it a priority to ensure that temporary employees are equally protected as direct-hire and permanent employees.

As a general rule, OSHA considers the employment relationship between host employers, staffing agencies and temporary workers as “joint.”  That is, the host employer and the staffing agency are joint employers of the temporary worker.  According to a July 15, 2014 memorandum to Regional Administrators, “The key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance with statutory and regulatory requirements.”  Under this structure, OSHA believes that both employers share control over the worker and therefore share responsibility for the worker, including safety and health.

This newly issued memo defines “temporary workers” as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.”  The memo echoes previous statements made by OSHA as to responsibilities or best practices for managing the safety and health of temporary employees.  These best practices include:

  • Host employer and staffing agency should consider hazards they are best positioned to prevent and correct. For example, host employers are generally better suited to address site specific hazards, such as machine guarding.  In comparison, staffing agencies may be better positioned to address general training or conduct audiometric testing if employees are exposed to high noise levels.
  • Host employer and staffing agency should both perform hazard assessments of the worksite.  This may include the staffing agency performing an actual inspection of the workplace and identifying specific hazards present and/or reviewing job assignments or job hazard analyses to ensure that such hazards are eliminated or employees are properly protected and trained.
  • Host employers must record work-related injuries and illnesses of temporary employees if they supervise those employees on a day-to-day basis.  OSHA defines day-to-day as “…the employer supervises the details, means, methods and processes by which the work is to be accomplished.”  For example, if the staffing agency has no supervisory personnel on site and temporary employees get job assignments or instructions from the host employer’s supervisors then the host employer must record work-related injuries or illnesses of those temporary workers.
  • Host employer and staffing agency should communicate with each other regarding temporary workers, particularly when an employee is injured.  Host employers should notify staffing agencies when a temporary worker is injured and staffing agencies should notify host employers as to any medical treatment or lost time.

The memo instructs compliance officers who are conducting inspections at worksites with temporary workers to review contracts between the host employer and the staffing agency to determine if safety and health responsibilities are spelled out in the contract.  Employers may wish to consider reviewing existing contracts to determine whether they address any of the following issues:

  • What employer, if any, is obligated to develop and maintain a written safety and health program
  • Whether the staffing agency will conduct periodic worksite inspections to examine the workplace to be able to determine what conditions exist at the facility and what hazards may be encountered
  • To what extent the host employer and the staffing agency will each provide safety and health training and whether the each employer will have an opportunity to audit or review as necessary any training and documentation of training provided to temporary employees
  • Which employer will provide at no cost to temporary employees, all site-specific personal protective equipment as required by the temporary workers job duties

Further, the memo instructs compliance officers during inspections to consider whether host employers and staffing agencies have met their responsibilities for safety and health of temporary workers.  Additionally, compliance officers can issue citations to either entity or to both depending on the specific facts.  For example, if a temporary worker operated a forklift at a host employer facility and was not trained, OSHA may consider citing the staffing agency for failing to provide formal training and also cite the host employer for failing to provide practical training, such as demonstrations of operation.

OSHA has indicated it anticipates issuing a compliance directive on temporary workers, as well as, bulletins on the various aspects of temporary workers, such as whistleblower protection rights, personal protective equipment, training, hazard communication and noise.

A copy of the policy memorandum can be found online here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.