It’s one of the most common questions I hear from clients. “Who’s responsible for OSHA compliance when we get “temp.” employees from staffing companies?”
Companies that hire workers from temp. agencies (I refer to them as “host” employers) are often under the erroneous impression that they don’t need to worry about OSHA compliance for these employees, because they (the temp. employees) are employed by the agency. However, it’s usually just the opposite. OSHA regulations only apply where there is an employee/employer relationship, but OSHA has a very different definition of “employer”. In this type of scenario, OSHA will usually consider the host employer to be the actual employer…not the agency. Hence, it’s the host employer who’s usually responsible for compliance.
OSHA will evaluate these situations on a case-by-case basis, and they’ll look at several characteristics of the specific arrangement. This will include who supervises the employee on a day-to-day basis, and who specifies the “means and modes” of the employee’s production. In other words, how they do the work. Believe it or not, factors like who signs the employees’ paychecks, have very little bearing.
Another reason that OSHA will usually consider the host company to be the employer, is that they have control over the workplace and the policies that may exist. They are better situated to enforce the safety program requirements for the location.
Some of the general OSHA obligations that the host employer might have include:
- Providing all required safety training, especially PPE, Employee Right to Know training, Hazard Communication or HazCom training, Forklift training, and any other topic that would be required for the work at hand
- Providing and requiring the use of Personal Protective Equipment
- Recording any recordable injuries/illnesses on the OSHA 300 log (conversely, the temp. agency should NOT be recording these injuries in most cases. Each injury should only be recorded on ONE company’s log. A temp. agency’s OSHA 300 logs should be nearly blank)
- Establishing/enforcing safe work practices, such as Lockout/Tagout, overhead power lines, etc.
- Any medical testing that might be required, such as baseline audiograms (there are some exceptions to this) or respirator medical evaluations.
With all of this said, there are two reasons that temp. agencies shouldn’t be under the impression that they can simply wash their hands of any safety obligations. First, in most cases the agency is still responsible for workers’ compensation, and they will bear the brunt of any claims. It behooves them to ensure the employees are placed in safe environments. Also, these situations are covered by OSHA’s “multi-employer worksite” rules, where OSHA can and will cite several different employers such as the host employer, and/or the temp. agency, when there are circumstances that support multiple citations.
With major changes to MN OSHA regulations (i.e. adoption of the Federal Hazard Communication (Haz. Comm.) standard, the implementation of the Global Harmonization System (GHS), the partial repeal of the Employee Right to Know act) coupled with the impending dramatic increases in OSHA fines, it becomes more important than ever for host employers and temp. agencies to coordinate their efforts to ensure employees are out of harm’s way.
As always, please call (612)597-6463 today if you have questions about this.
Do you work for a temp. agency, or are you a client of one? What do you think of all this? We invite you to comment below.