For a variety of reasons, both economic and non-economic, employers have relied more and more heavily on independent contractors and temporary workers. Temporary workers being employees of temporary agencies, staffing companies and staff leasing services (“temporary employers”), as opposed to employees hired on a temporary or seasonal basis. This trend does not appear to be slowing and, in fact, by most measures is increasing. According to the American Staffing Association, this is a $17 billion a year industry.
Whether a byproduct of the increased use of temporary workers or the result of some other phenomenon, in the past several years there have been a number of highly-publicized workplace fatalities involving temporary workers killed on their first day or week of work with the “host” employer. In response to the first day of employment death of a 21 year old temporary worker at a Bacardi facility, the United States Department of Labor Occupational Safety and Health Administration (OSHA) on April 29, 2013, issued an enforcement memorandum to Regional Administrators. That enforcement memorandum requires OSHA compliance officers to document whether any of the employees on a particular jobsite are temporary workers. If the compliance officer finds temporary workers, they are to determine whether those workers are or were exposed to any condition violative of the Occupational Safety and Health Act.
Though, contractually, temporary and host employers have tried to assign responsibility for temporary worker health and safety, OSHA has taken a position that supersedes the contract. In short, the temporary and host employers are both charged with responsibilities related to the health and safety of the temporary worker. The two employers have joint responsibility for ensuring that the temporary worker has a safe place to work and that training, hazard communication, and recordkeeping requirements are fulfilled.
Generally, OSHA recognizes that the host employer controls the temporary worker more than the temporary employer and, therefore, will generally assign the host employer more responsibility for the temporary worker’s health and safety. For example, though the temporary employer has an obligation to ensure that the temporary worker receives adequate generalized health and safety training for the types of work he or she may encounter with the host employer, the host employer will have responsibility for providing any specialized, task-specific training required for the safe execution of the work.
OSHA recently issued the first of what sources within OSHA say will be bi-monthly guidance documents related to temporary workers. That first guidance document can be found at: https://www.osha.gov/temp_workers/OSHA_TWI_Bulletin.pdf. This guidance document addresses recordkeeping and which employer is responsible for recording injuries and illnesses among temporary workers. Though generally the host employer will bear responsibility for recordkeeping, by exercising extensive control over the temporary worker, the temporary employer can become the responsible party.
As these guidance documents are published, temporary and host employers will gain greater insight into OSHA’s positions on a number of issues related to temporary worker health and safety. Unfortunately, failing to keep up with these publications could result in a very unpleasant surprise for those employers.