National Institute for Occupational Safety and Health Issues Guide to Protecting Temporary Workers | Cozen O’Connor

The use of “leased” employees continues to skyrocket. Between 1992 and 2017, the number of people working for employee leasing companies is estimated to have increased by 682%, from 341,884 to 2.7 million. There are a variety of reasons companies use leased employees. However, host companies should be aware that even though they are not the official “employer”, they still have safety and health obligations under OSHA. Under OSHA’s Multi-Employer Citation Policy, CPL 2-0.124 (the “Multi-Employer Policy”), more than one employer may be cited for an unsafe condition that violates an OSHA standard under certain circumstances, including an employer who exposes an employee to danger. This is an important reminder as, under normal circumstances, hire employees may not receive the same level of training as employees at a host company.

On July 18, the National Institute for Occupational Safety and Health (“NIOSH”) released a guide to good protection practices for temporary workers. This guide applies to companies that employ temporary workers through recruitment companies in all sectors and walks the reader through the responsibilities and roles of host employers and recruitment companies. In 2014, the Occupational Safety and Health Administration (“OSHA”) and NIOSH published Best Practices: Protecting Temporary Workers, which recommended best practices that host employers and recruitment companies could adopt for the protection of temporary workers. The new guide published by NIOSH further expands on the 2014 guidance. The guide is not legally binding and does not replace any formal guidelines or legal requirements presented by OSHA.

In addition, OSHA normally views staffing companies and host employers as joint employers who ultimately share responsibility for and provision of a safe work environment. This perspective of shared employer responsibility makes it particularly important that host employers and staffing companies communicate thoroughly about their respective health and safety roles, including, but not limited to, issues surrounding training, assessment of employee qualifications, risk assessments, on-site supervision, reporting safety issues, incident investigations and record keeping. The purpose of the newly released guide appears to be to offer a generalized blueprint of best practices for host employers as they navigate this delicate issue of shared responsibility.

In addition to a list of information and resources, the guide contains three main sections: evaluation and procurement; Training of temporary workers and their site supervisors; and injury and illness reporting, response and record keeping. In particular, the Assessment and Contract section provides that the responsibilities of the host employer and the recruiting firm must be set out in a written contract which specifies: job details, communication and documentation responsibilities, reporting and response to injury and illness, and other aspects of occupational safety and health.

The appendix to the guide contains a collection of sample corresponding printable checklists of best practices for host employers in assessment and procurement, training and reporting. The authors of the guide state that “[t]The person completing the checklists should be knowledgeable about the job tasks, job sites, and hazards as well as the necessary hazard controls, training, PPE, and supervision to keep [temporary workers] safe and healthy at work.

Host employers can review the best practices presented in the guide to help better define joint health and safety responsibilities with the placement agency, try to prevent accidents on the job site, and ultimately create a more productive and efficient workplace. As noted above, these best practices are generalized to fit multiple industries and do not replace formal OSHA guidelines. Therefore, this guide can be used as a tool to enhance the safety of temporary workers, but should not be seen as a general substitute for industry-specific considerations.

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