Temporary staffing agencies (or primary employers) and entities who are sent temporary employees (or host employers) may agree that temporary workers are entitled to all the worker protections full-time employees receive, but they may not agree or even know which employer is responsible for ensuring that those protections are implemented.
The answer is that responsibility is not an either/or burden. According to OSHA, the primary employer and the host employer are “jointly responsible” for maintaining a safe work environment for temporary workers—including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled. Unfortunately, “jointly responsible” is a vague term. Does it mean that both employers are responsible for meeting all standards? Or does it mean that the primary employer is responsible for certain standards while the host employer is responsible for others?
OSHA somewhat responds to these questions by stating that the extent of legal responsibility carried by primary employers and host employers is dependent on the specific facts of each case. The agency adds that it could hold both the host and temporary employers responsible for violative conditions. OSHA emphasizes joint responsibility because some host employers may have the wrong idea about their responsibility to temporary workers. OSHA states:
“OSHA has concerns that some employers may use temporary workers as a way to avoid meeting all their compliance obligations under the OSH Act [Occupational Safety and Health Act] and other worker protection laws; that temporary workers get placed in a variety of jobs, including the most hazardous jobs; that temporary workers are more vulnerable to workplace safety and health hazards and retaliation than workers in traditional employment relationships; that temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer. Therefore, it is essential that both employers comply with all relevant OSHA requirements.”
Employer Position Is Critical
“An important concept,” says OSHA, “is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example: primary employers might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.”
OSHA recommends that the primary employer and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. “Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer’s obligations,” states OSHA.
Bear in mind that such contracts do not eliminate each employer’s legal obligation to protect their employees.
Primary Employer Determines Hazards
“The key is communication between the [primary employer] and the host to ensure that the necessary protections are provided,” says OSHA. The Agency adds that host employers “must treat temporary workers like any other workers in terms of training and safety and health protections.” However, the primary employer must shoulder the initial responsibility. For example:
- Primary employers have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace. Moreover, workers must be informed if the assignment involves work that is reasonably believed to be dangerous. Employees have the right to refuse such work and may return to the primary employer for reassignment to other work without penalty.
- Ignorance of hazards is not an excuse.
- Primary employers need not become experts on specific workplace hazards, but they should determine what conditions exist at their clients’ workplaces, what hazards may be encountered, and how best to ensure protection for their temporary workers.
- The primary employer has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.