1. How does the leasing company provide basic training to prepare employees for site-specific training to be provided by the host employer?
2. Are the temporary employees prepared for site-specific training when they arrive at the host employer?
3. Do the employees understand the various chemical risks, lock-out/tag-out, confined-space, and other safety needs of the host employer?
4. Who chooses and who provides the PPE needed for the temporary employee to perform his or her work safely?
5. Which employer was actually responsible for supervising the work of any injured or killed employee?
6. If one of these employees is injured, on whose 300 Injury Log does it appear?
7. Finally, OSHA’s whistleblower rules apply, to both employers. Both the temporary employer and the host employer need to exercise caution when dealing with a temporary employee who has filed a complaint that would subject that employee to protection under any one of a number of “whistleblower” statutes.
In general, both the temporary agency and the host employer have the responsibility to ensure that training, hazard communication, and recordkeeping requirements are fulfilled. Therefore, the issue at hand is the division of responsibility.
To ensure that there is clear understanding of each employer's role in protecting employees, OSHA recommends that the temporary staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations.
In general, however, it is the responsibility of the temporary agency to ensure that employees have received proper training. In practice, even when the temporary agency has provided basic training, the host employer provides the workplace-specific training appropriate to the employees' particular tasks. In order to fulfill its obligation under such circumstances, the temporary agency must have a reasonable basis for believing that the host employer's training adequately addresses potential hazards employees may be exposed to at the host worksite.
29 CFR § 1904.31, requires that an employer "record on the OSHA 300 Log the recordable injuries and illnesses of all employees on [the employer's] payroll" and of "employees who are not on [the employer's] payroll if [the employer] supervise[s] these employees on a day-to-day basis." 29 CFR § 1904.31(a).
The regulation goes on to reiterate that if an employer "obtain[s] employees from a temporary help service, employee leasing service, or personnel supply service," that the host employer is obligated to record any recordable injuries and illnesses if it "supervise[s] these employees on a day-to-day basis." Id. § 1904.31(b)(2).
Therefore, in your first scenario, in which the host employer has full supervisory control over employees, the host employer is responsible for injury and illness recording and reporting.
In your last scenario, in which only the temporary staffing agency exercises day-to-day supervision over employees, the temporary staffing agency is responsible for injury and illness recording. In your other scenarios, the temporary staffing agency and host employer share the supervisory role, so it is not readily apparent which employer must comply with 29 CFR § 1904.31. In that case, OSHA advises that the two employers reach an agreement regarding the responsibilities in question. Please note that only one employer's log should contain a record of injuries and illnesses of the employees. Id. § 1904.31(b)(4).
OSHA has published two enforcement memoranda. These serve to put internal staff and the regulated community on notice that the agency considers this arena ripe for some enforcement action. The memoranda also require OSHA personal obtain information about who the Lessor company is, where they reside, and the nature and extent to which the staffing company exercises joint control over the work performed by the temporary employee. Another key consideration for the CSHO performing the inspection is whether, with respect to the training provided to temporary employees, the training is provided in a language those employees understand, in recognition of the fact that many temporary employees do not speak English.
Interestingly, OSHA acknowledges, even if not explicitly, that these are employees provided pursuant to contracts and, as such, some duties can be contractually assigned or delegated. However, if the contractually assigned or delegated responsibility it not fulfilled, both employers are likely subject to citations. OSHA considers the training and equipping of all employees to be critical to workplace safety. OSHA remains skeptical that the leasing company can effectively train employees for all hazard communication issues at a client’s facility and divides responsibility between general training and site-specific training. If there is an accident or serious injury, both companies should expect a very critical review of their programs.
Copies of Memoranda to Regional Administrators along with other items of interest can be found at: