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OSHA Joint Employer Liability!
The Occupational Safety and Health Administration (OSHA) has just reminded Temporary Staffing Agencies and their clients (i.e. the Host Employer) that they are jointly liable and responsible for a Temporary Employee’s safety and health in two (2) new Guidance Documents relating to respiratory protection, noise exposure and hearing conservation.
Nearly two (2) years after its last Bulletin Issuance, Occupational Safety and Health has advised in Temporary Working Initiative Bulletin No. 8 – Respiratory Protection and Initiative Bulletin No. 9 – Noise Exposure and Hearing Conservation that there is a shared responsibility between Host Employers and Temporary Staffing Agencies. Under Bulletin No. 8, OSHA advises both the Host Employer and Staffing Agency that they are “jointly responsible to ensure that Workers wear appropriate respiratory equipment when required.” Both the Host Employer and the Staffing Agency are jointly responsible to establish that the Employee is properly protected in accordance with Standard No. 8 and neither the Host Employer nor the Staffing Agency can require that the Worker provide or pay for their own respiratory protection if it is required.
Under No. 9, the Host Employer and the Temporary Staffing Agency are jointly responsible for assuring that “Workers receive protection from any hazardous noise levels when it is required under any established OSHA standard.” Neither the Host Employer nor the Staffing Agency can require the Temporary Workers to provide or pay for their own hearing protection devices, nor require that Workers purchase such devices as a condition of employment. In addition, Temporary Employees must be paid for any time spent receiving their audiograms and audiograms must be at no cost to the Employee.
It should be understood that, while OSHA’s view that both the Host Employers and the Staffing Agencies are jointly responsible for the Temporary Workers’ safety and health, OSHA also has taken the position that in fulfilling this shared responsibility, there may be coordination between the Host Employer and the Staffing Agency with regard to fulfilling responsibilities under Nos. 8 and 9 above. While a Host Employer may have more specific knowledge about hazards associated with its worksite, the Staffing Agency also has a generalized safety responsibility for its Employees. Therefore, OSHA would allow the Host Employer and Staffing Agency to divide training responsibilities based on their respective knowledge of the hazards associated with the worksite. Host Employers would have the primary responsibility for training and communication regarding site-specific hazards and Staffing Agencies would be responsible for making reasonable inquiries to verify that the Temporary Workers’ safety is established.
It is extremely important for both the Host Employer and the Temporary Staffing Agency to understanding their responsibilities under these new regulations.
Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at firstname.lastname@example.org
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