The federal Occupational Safety and Health Administration (OSHA) was established in 1971 to ensure employees’ health and safety. OSHA’s laws and regulations have been based on the traditional assumptions, quite prevalent at the time, that an employer is the one who hires its employees, who then work for the employer alone on a fulltime or part-time basis.
However, this paradigm has changed. A great many private-sector employees today are instead provided by private staffing companies that work closely with employers. Do these companies have any obligations under the federal OSHA regulations?
Let’s look at a notable example: the OSHA statute for employers to provide a listing of all injuries and illnesses on a job site (OSHA 300 Logs). OSHA requires all employers above a size threshold to keep an OSHA 300 Log in some readily accessible form. Who needs to compile it?
Recently, a staffing company that was our client was cited by OSHA for its alleged failure to maintain an OSHA 300 Log for an employee injured in a large warehouse that was owned and operated by a publicly traded company. OSHA concluded that because the employee received his paycheck from the temporary staffing company, the staffing company had the obligation to maintain the OSHA 300 Log.
The staffing company contested this finding — and in reviewing a series of OSHA directives, was able to establish that the citation was improper and that the sole obligation to maintain the OSHA 300 Log belonged to the staffing company’s customer.
The directives issued by OSHA don’t have the force of law, but they do indicate OSHA’s policy. The OSHA directive titled “Temporary Worker Initiative – Injury and Illness Recordkeeping Requirements” sets forth definitions for the parties in a temporary staffing relationship.
Temporary workers are ones assigned through a staffing agency, whether or not they are employed under a joint, dual or contractual employment situation. The customer of the staffing agency for whom the temporary worker is providing services is known as the host employer.
According to the OSHA directive, injuries and illnesses should be recorded only on one employer’s injury log. This is important, as often both the staffing agency and the host employer will report a work-related injury. This is not appropriate and should not be done.
The directive further indicates that the requirements for injury and illness record-keeping are determined by the question of supervision. Employers must record the injuries and illnesses of temporary workers if they supervise such workers on a day-to-day basis. “Day-today basis” is further defined as supervision of output, product or result. While a staffing agency may have a representative at the host employer’s work site, this fact does not automatically transfer the record-keeping responsibilities to the staffing agency. As long as the host employer maintains day-to-day supervision over the temporary employee, the host employer is responsible for recording injuries and illnesses.
It thus becomes important to contractually define the role of any staffing agency supervisors on the job site. If the staffing agency supervisor is at the host employer’s location specifically to supervise temporary workers in the product or result of the employee’s work, the reporting burden could be shifted from the host employer to the staffing agency. However, if the host employer directly supervises the temporary workers in the same manner and direction as its direct employees, the responsibility for reporting injuries and illnesses on an OSHA-300 Log remains solely and exclusively with the host employer.
Many states, of course, have their own OSHA laws that may provide substantially more rights to employees and place more responsibilities on employers than federal OSHA regulations do. The staffing agencies must understand the particular OSHA requirements for agencies in the states they assign employees — as these will control the illness and injury reporting requirements.