On April 29, 2013, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a memorandum to regional administrators regarding the obligation of employers to protect temporary workers from workplace hazards. The memorandum reports a recent uptick in fatal injuries involving temporary workers, and reiterates the need for employers to provide adequate safety training to temporary workers. Specifically, the memorandum states:
Employers have a duty to provide necessary safety and health training to all workers regarding workplace hazards. In order to determine whether employers are complying with their responsibilities under the Act, please direct [Compliance Safety and Health Officers] CSHOs in your region to determine within the scope of their inspections whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition. In addition, CSHOs should assess—using records review and interviews—whether those workers have in fact received required training in a language and vocabulary they understand. Recent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.
“Temporary workers” include those workers who are “supplied to a host employer and paid by a staffing agency.” CSHOs are directed to identify work sites where temporary workers are exposed to hazards using a new code created for OSHA’s information management system.
The memorandum reiterates OSHA’s policy of requiring host employers to protect their temporary employees from workplace hazards. For example, in a November 2012 interpretation letter, “Clarification of OSHA Safety Requirements between a Temporary Staffing Agency and its Client,” OSHA stated that the host employer is ultimately responsible for training temporary employees pursuant to the Hazard Communication standard, 29 C.F.R. § 1910.1200. “The host-employer holds the primary responsibility for training since the host employer uses or produces chemicals, creates and controls the hazards, and is, therefore, best suited to inform employees of the chemical hazards specific to the workplace environment.”
Even if a contract between an employer and a temporary staffing agency requires the staffing agency to train the employees, the host employer must nevertheless provide “workplace-specific training appropriate to the employees’ particular tasks.” Similarly, under OSHA’s recordkeeping requirements, the host employer must record work-related injuries and illnesses experienced by temporary employees it supervises on a day-by-day basis on the OSHA 300 Log (provided that one of the recording criteria is met).
Although the memorandum does not break new ground, it does make clear that OSHA will be carefully evaluating whether temporary employees receive the training required by relevant existing standards. OSHA is also unlikely to be persuaded by a host employer’s argument that a staffing agency is required by contract to provide safety training to temporary employees. As such, host employers and temporary staffing agencies should clarify which entity will provide certain types of training, and also consider the following:
- Some types of more generic safety training may be provided by the staffing agency. For example, the host employer may require employees to wear respirators, and the staffing agency may provide the training, medical evaluations, and fit-testing. Similarly, staffing agencies may certify employees in how to operate forklifts. In the event the staffing agency provides the training, the host employer should make sure that the training records are available, and even review a sample of the records to ensure that they are adequate.
- Certain training may be approached with more of a hybrid model. For example, a temporary agency may provide training under the Hazard Communication standard on how to read a Safety Data Sheet (SDS), while the host employer provides information about which chemicals are used and where SDSs are located at the worksite. Again, a clear understanding about which entity is performing which training is vital.
- Some training is clearly the exclusive responsibility of the host employer. For example, training on how to lockout equipment at the host employer’s site, or what to do in case of an emergency evacuation, cannot be provided by a staffing agency.
Melissa Bailey is the managing shareholder of the Washington, D.C. office of Ogletree Deakins. Jenna Mennona is a law student, currently participating in the summer associate program in the Washington, D.C. office of Ogletree Deakins.