Michael P. Addair
Dinsmore & Shohl LLP
The use of temporary employees has become common in many industries. As a result, our firm has handled several recent cases in which an employee of a staffing agency has suffered a workplace injury while on the premises of a host employer.
In many of these cases, the alleged safety issues leading to the injury-producing accident can be blamed, at least in part, upon lack of communication and confusion regarding the respective responsibilities of the host employer and the temporary employer regarding the health and safety of temporary employees. The temporary employer often assumes that the host employer maintains a safe workplace and provides all relevant safety training without taking an active role in ensuring a safe workplace for the temporary employee. Meanwhile, the host employer might assume that the temporary employee comes to its worksite well-trained, qualified, and with all necessary hazard training to do the assigned job without ensuring this to be the case.
The failure of the temporary and host employers to work together and to each take an active role in ensuring the health and safety of the temporary employee can often lead to disastrous and expensive consequences for both employers, as the law (and Plaintiffs’
attorneys) will hold both responsible for failures in compliance with health and safety regulations.
The Occupational Safety and Health Administration (“OSHA”) started a “Temporary Worker Initiative” (“TWI”) in 2013 to address concerns held by the agency that temporary employees are at an increased risk of work-related injury and illness. The agency’s website specifically describes these concerns as follows: 1) that some employers may use temporary employees as a means to avoid compliance obligations under the OSH Act; 2) that temporary employees get placed in a variety of jobs, including the most hazardous jobs; 3) that temporary employees are more vulnerable to workplace hazards and retaliation than their permanent co-workers; and 4) that temporary workers are often not given adequate safety and health training by either the temporary staffing agency or the host employer.
As part of the TWI, OSHA issued a memorandum on July 15, 2014 providing guidance to its field staff regarding its enforcement policy in temporary employment situations. The memorandum reiterates that OSHA considers the staffing agency and the host employer to be "joint employers" of temporary employees. Accordingly, each employer bears responsibility for compliance with the Occupational Safety and Health Act (“OSH Act”) and the regulations promulgated thereunder. The employers may divide these responsibilities in a contract, but the contract’s allocation of responsibility may not always discharge either employer’s obligations. Responsibilities for safety and health of the temporary employee will often overlap.
Generally, the host employer has primary responsibility for determining what hazards exist in its workplace and complying with worksite-specific requirements. But the July 15th OSHA memorandum makes it clear that the temporary employer has basic duty to diligently inquire into the conditions present at the host employer’s worksite and ensure they are not sending their workers to workplaces where hazards exist from which they are
not protected or on which they are not trained.
OSHA will consider issuing citations to both the host and temporary employers where a temporary employee is exposed to a workplace hazard in violation of the OSH Act. The determination of each employer’s responsibilities will be highly fact specific and take into account the temporary employer’s actual and/or constructive knowledge of the workplace hazards. OSHA will also consider the division of health and safety responsibilities outlined in the contract between the parties.
The July 15th OSHA memorandum and OSHA’s website also provide the following guidance:
Both employers should jointly review the task assignments and any job hazard analyses in order to identify and eliminate potential dangers and provide the necessary protections and training. Ignorance of hazards is not an excuse.
The temporary employer has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace. Accordingly, the staffing agency may itself wish to inspect the workplace to conduct its own hazard assessment or to ensure implementation of the host employer's safety and health obligations.
The employers must communicate with each other when a worker is injured and determine what measures are to be implemented to prevent future injuries.
Temporary workers have the same rights and protections against retaliation as their permanent counterparts. It is incumbent on both employers to ensure that temporary employees are aware of their rights and responsibilities under the whistleblower protections of the OSH Act.
Host employers must treat temporary workers like any other workers in terms of
training and safety and health protections.
In the context of temporary employment arrangements, both temporary and host employers would be well advised to clearly outline in a written contract the respective
responsibilities that each will assume for the health, safety, and training of the temporary employee. Additionally, host employers should provide the same training and hazard communication to temporary employees that they provide to their regular employees. Likewise, temporary employers should insist on inspecting the workplace to ensure that host employers are providing all necessary safety training and hazard communication, as well as in compliance with all applicable health and safety regulations.
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