OSHA Issues More Guidance Regarding Temporary Workers
The Occupational Health and Safety Administration (OSHA) has issued two new bulletins in support of its ongoing Temporary Worker Initiative. The initiative was launched two years ago to increase OSHA’s focus on temporary workers and to highlight employers’ responsibilities with regard to these workers. As OSHA compliance officers regularly encounter worksites with temporary workers, the agency is continuing to focus enforcement and compliance efforts on temporary worker protection.
Generally, temporary workers are workers who are hired and paid by a staffing agency and supplied to a “host employer” to perform work on a temporary basis. OSHA ordinarily considers the staffing agency and the host employer to be joint employers with respect to temporary workers, meaning both entities are responsible for their safety. The extent of the obligations of each employer will vary depending on worksite conditions, and neither the staffing agency nor the host employer can escape liability for their OSHA responsibilities by requiring the other party to perform those responsibilities.
In its two most recent bulletins, OSHA offers guidance to staffing agencies and host employers regarding the provision of personal protective equipment (PPE) to temporary workers, as well as on temporary workers’ whistleblower protection rights. OSHA previously issued a bulletin discussing the application of its injury and illness recordkeeping requirements to temporary workers, which is discussed further below.
With respect to PPE (such as gloves, safety glasses, earplugs, hard hats, respirators and vests), OSHA’s Temporary Worker Initiative Bulletin on PPE advises that the host employer will usually have the primary responsibility for selecting, providing, and ensuring the use of adequate PPE. This is because the host employer usually has the most familiarity with, and often controls, the workplace hazards at issue and therefore is better situated to determine if (and what) PPE is necessary. The staffing agency still must take reasonable steps to ensure that the host employer conducts the appropriate hazard assessment and provides adequate PPE. This will require the staffing agency to become familiar with worksite hazards and maintain appropriate communication with its workers, as well as with the host employer.
OSHA’s Temporary Worker Initiative Bulletin on whistleblower protection rights notes that both the host employer and the staffing agency can be held liable for retaliating against workers who have engaged in protected activity such as reporting injuries or raising safety concerns. Temporary workers have the same anti-retaliation protections as other employees and, depending on the circumstances, temporary workers who have been retaliated against for engaging in protected activity can file a complaint against their host employer, the staffing agency, or both. To minimize this risk, host employers and staffing agencies should communicate and promptly report to each other any OSHA protected activity by temporary workers.
Finally, in its previously-issued Temporary Worker Initiative Bulletin on recordkeeping requirements, OSHA advised that, in most cases, the host employer is responsible for recording the injuries and illnesses of temporary workers since it usually is the employer responsible for supervising the workers on a day-to-day basis. However, the non-supervising employer (usually the staffing agency) still shares responsibility for the safety and health of temporary workers and should communicate with its workers and the host employer to ensure that injuries and illnesses are properly recorded. Both employers should ensure that temporary workers know how to report work-related injuries and illnesses.
All three Temporary Worker Initiative Bulletins emphasize the joint employment structure with respect to temporary workers and serve as a good reminder that neither employer is exempt from liability because the other failed to fulfill its responsibilities under the OSH Act. Therefore, it is essential that both employers comply with all relevant OSHA standards and requirements.
More information about OSHA’s Temporary Worker Initiative can be found on OSHA’s Protecting Temporary Workers. Additionally, see our previous Safety Counsel Alert, OSHA Expands Reporting and Recordkeeping Requirements.