OSHA is being criticized for a recent interpretation letter clarifying who is responsible for recording illnesses and injuries in what the agency considers a “joint employer relationship” where supervision is shared between a host employer and a staffing agency. In deciding whether the host employer or the staffing agency is responsible for recording injuries and illnesses, the determining factors, according to OSHA’s requirements, are: (1) who supervises the employees on a day-to-day basis, and (2) what constitutes day-to-day supervision. The requirement under 29 C.F.R § 1904.31(a) stipulates:

You must record on the OSHA 300 Log the 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 recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis.

Section 1904.31(b)(2) elaborates, stating that the host employer must record the injuries and illnesses of temporary workers if it supervises them on a day-to-day basis.

In the situation described in the interpretation letter, a temporary staffing agency hired, orientated, and trained workers before placing them in jobs as requested by the host employer. The staffing agency controlled all personnel matters, such as compensation, benefits, vacation and leave requests, discipline and reporting injury/illness. Additionally, the staffing agency provided round-the-clock onsite supervision of their employees five days per week. However, the pivotal factor in this situation was that the host employer assigned daily tasks to the temporary workers. According to OSHA’s Frequently Asked Questions for OSHA’s Injury and Illness Recordkeeping Rule (“FAQ”), “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.’” (emphasis added).

In the interpretation letter, OSHA concluded that because the host employer assigned daily tasks, it provided the day-to-day supervision of the temporary workers as clarified in FAQ and, therefore, was responsible for recording injuries and illnesses regardless of what the contract required. The interpretation letter further reminds employers of the importance of only recording an injury or illness one time and that in a joint employer situation, the supervising employer has that responsibility. It also noted that “for purposes of OSHA recordkeeping, there cannot be joint day-to-day supervision of temporary workers.”

The Agency has been criticized for its interpretation because for practical purposes the staffing agency controls and supervises its employees. The very fact that workers are only temporarily employed by the host employer, makes it virtually impossible for a host employer to track and maintain contact with the temporary workers, or even to know with certainty that every recordable injury or illness is attributable to work performed during employment for the host company.

The letter dated October 19, 2015 may be read in full 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.