The Occupational Safety and Health Act of 1970 (the “OSH Act”) is the primary federal law that governs occupational health and safety in the private sector and federal government. The OSH Act is administered by the Occupational Safety and Health Administration (“OSHA”) and covers most private sector employers and their employees.
When a temporary worker is placed with an end client (referred to as the “host employer” by OSHA) the staffing agency and host employer are jointly responsible for maintaining a safe work environment. But, how are these joint responsibilities divvied up given the fact that the temporary worker will likely be rendering services outside the staffing agency’s premises?
According to OSHA, the staffing agency and host employer must “work together” to ensure that the OSH Act’s requirements are fully met. Working together includes determining which of the joint employers may be better suited to ensure compliance with a particular requirement, and who will assume primary responsibility for it. Obviously, in the fast paced staffing industry this is not the easiest task in the world, particularly when the staffing / host employer relationship is new, or expands to a new scope and/or location. So, what is the staffing company to do?
Some of the steps, suggested by OSHA, that staffing companies can take to fulfill their OSH Act responsibilities include:
- Inquiring into the conditions of the temporary workers’ assigned workplaces to ensure that they are safe. Ignorance of hazards is not an excuse but, assumable, a good faith inquiry into conditions is a defense.
- If hazards may be encountered, determining with the host employer how best to ensure protection for the temporary workers. The staffing company does not have to become an expert, but it should do its due diligence.
- Asking and verifying that the host employer has fulfilled its responsibilities for a safe workplace.
- Assuring that host employers treat temporary workers like any other workers in terms of training and safety and health protections.
- Providing general safety and health training to the temporary workers and requiring the host employer to provide specific training geared towards the particular engagement / hazard.
- Maintaining a flow of information between the host employer and staffing agency regarding workplace injuries, so the staffing agency remains informed about the hazards facing its workers. This would include a procedure through which temporary workers are required to report injuries to the staffing agency.
This “joint employment” structure requires effective communication and a common understanding of the division of responsibilities for safety and health. Such understanding should be clearly set forth in the agreement between the staffing company and host employer and/or in the particular statement of work for the specific engagement. Note that some of the aforementioned suggested steps by OSHA can be memorialized in the agreement with the host employer.
Whatever a staffing company decides to do, it should be careful to avoid contractual language (including indemnification clauses) that shifts to them OSH Act compliance obligations and liabilities outside the control of the staffing company and the scope of its engagement. This is clearly a trap for the unwary and unrepresented staffing company.
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