The use of “leased” employees continues to skyrocket. Between 1992 and 2017, it is estimated that the number of people working for employee leasing firms increased 682%, from 341,884 to 2.7 million. There are a variety of reasons companies use leased employees. However, host businesses should be aware that even though they are not the “employer” of record, 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 citable for a hazardous condition that violates an OSHA standard in certain circumstances, including an employer that exposes an employee to the hazard. This is an important reminder because, under normal circumstances, leased employees may not be provided the same level of training as a host company’s employees.
On July 18, the National Institute for Occupational Safety and Health (“NIOSH”) released a guidebook concerning best practices for protecting temporary workers. This guidebook applies to companies employing temporary workers through staffing firms across all industries and leads the reader through the responsibilities and roles of host employers and staffing companies. In 2014, the Occupational Safety and Health Administration (“OSHA”) and NIOSH issued Recommended Practices: Protecting Temporary Workers, which recommended best practices that host employers and staffing companies could employ for the protection of temporary workers. The newly released guidebook from NIOSH further develops the 2014 guidance. The guidebook is not legally binding and does not replace formal guidance or legal requirements presented by OSHA.
In addition, OSHA will normally view staffing companies and host employers as joint employers who ultimately share in the responsibility and the provision of a safe work environment. This perspective of shared employer responsibility makes it especially important that host employers and staffing companies communicate thoroughly about their respective health and safety roles, including but not limited to the issues surrounding training, assessing employee qualifications, risk assessments, on-site supervision, reporting safety issues, incident investigations, and recordkeeping. The goal of the newly released guidebook appears to be to offer a generalized blueprint of best practices for host employers as they navigate this sticky issue of shared responsibility.
Alongside a list of information and resources, the guidebook contains three primary sections: Evaluation and Contracting; Training for Temporary Workers and their Worksite Supervisors; and Injury and Illness Reporting, Response, and Recordkeeping. Notably, the Evaluation and Contracting section provides that host employer and staffing company responsibilities should be set forth in a written contract that specifies: job details, communication and documentation responsibilities, injury and illness reporting and response, and other aspects of workplace safety and health.
The appendix to the guidebook contains a collection of corresponding printable sample checklists of best practices for host employers with regard to evaluation and contracting, training, and reporting. The authors of the guidebook instruct that “[t]he person who completes the checklists should be knowledgeable about the work tasks, worksites, and hazards as well as the necessary hazard controls, training, PPE, and supervision to keep [temporary workers] safe and healthy on the job.”
Host employers can examine the best practices presented in the guidebook to help better define the joint health and safety responsibilities with the staffing agency, try to prevent accidents on the worksite, and ultimately create a more productive and efficient workplace. As noted above, these best practices are generalized to fit across multiple industries and do not replace OSHA’s formal guidance. Therefore, this guidebook can be used as a tool to bolster temporary worker safety but should not be considered a wholesale replacement for any industry-specific considerations.