OSHA Regulation and the Growing Popularity of Employee
Leasing Programs
Including Temporary Worker Services and
Professional Employer Organizations
___________________________
Jeffry Carter
RMS
Regulatory Services
John D. Surma
Of Counsel
Adams & Reese
10 February 2014
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Part I Letters of Interpretation, Policy Statements, and Enforcement Guidance:
It is important to note that OSHA has no rules specific to employer responsibility for temporary or leased
employee health and safety.1 Instead of seeking specific rules through the normal rulemaking process,
OSHA has chosen to apply existing rules and publish “Letters of Interpretation,” make certain policy
announcements in the form of enforcement memoranda in the effort to protect these workers. Most of
the applicable documents and guidance can be found on their webpage at:
https://www.osha.gov/temp_workers/index.html
The letters of Interpretation (LOI) and enforcement memoranda offer a glimpse into how OSHA believes
employers should handle training responsibilities, provision of PPE, as well as how they would likely cite
companies who failed in their duties. It becomes clear, upon a quick reading of these documents, that
OSHA considers both the Lessee and Lessor as having very specific duties.
The first L.O.I. is from 1994. It addresses hazard communication training and still represents OSHA
policy:
OSHA considers temporary employment agencies who send their own employees to work at other
facilities to be employers whose employees may be exposed to hazards. Since it is your company, which
maintains a continuing relationship with its employees, but another employer (the client) who creates and
controls the hazards, there is a shared responsibility for assuring that your employees are protected from
the workplace hazards. The client has the primary responsibility of such protection. The "lessor employer"
likewise has a responsibility under the Occupational Safety and Health Act. In meeting the requirements
of OSHA's Hazard Communication standard the lessor employer would, for example, be expected to
provide the training and information requirements specified by the HCS section (h)(1). Client employers
would then be responsible for providing site-specific training and would have the primary responsibility to
control potential exposure conditions. The client, of course, may specify what qualifications are required
for supplied personnel, including training in specific chemicals or personal protective equipment (PPE).
Contracts with your client employer and your employees should clearly describe the responsibilities of
both parties in order to ensure that all requirements of the regulation are met.
(Emphasis Added).
The 1994 L.O.I continues and addresses provision of personal protective equipment and
medical surveillance issues:
PPE Issues:
Client employers would be responsible for providing PPE for site- specific hazards to which employees
may be exposed. However, again, the client may specify the services that it wants the lessor employer to
1
The term temporary employees is not intended, and does not apply to, day laborers or seasonal laborers hired
directly by the employer.
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supply, including provision of PPE for the placed employees. Contracts with the client employer should
clearly describe the responsibilities of both parties in order to ensure that all requirements of OSHA's
regulations are met.
Medical surveillance:
The client employer must offer and perform the required medical surveillance or evaluations. The lessor
employer must ensure that the records of the required medical surveillance or evaluations are maintained
in accordance with the appropriate OSHA standards.
The temporary help service must maintain employee records in accordance with the appropriate OSHA
standard (e.g. the Lead standard, the Occupational Noise Exposure standard, etc.) Note typically medical
records are to be held by the employer for duration of employment plus 30 years. However, the client
employer must perform the site characterization and monitoring of exposure to hazardous chemicals on
the work site.
New Hire Hazard Communication Training
The lessor employer would be expected to provide some generic training and client employers would be
responsible for providing site-specific training, or training to update employees on new hazards in the
workplace. Please see the answer to question 1 for a further explanation.
OSHA’s second LOI from 2012 reiterates a number of points from the early letter including:
In general, both the temporary agency and the host employer have the responsibility to ensure that training,
hazard communication, and recordkeeping requirements are fulfilled. Therefore, the issue at hand is the
division of responsibility.
To ensure that there is clear understanding of each employer's role in protecting employees, OSHA
recommends that the temporary staffing agency 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.
TRAINING
In general, however, it is the responsibility of the temporary agency to ensure that employees have received
proper training. In practice, even when the temporary agency has provided basic training, the host employer
provides the workplace-specific training appropriate to the employees' particular tasks. In order to fulfill its
obligation under such circumstances, the temporary agency must have a reasonable basis for believing that the
host employer's training adequately addresses potential hazards employees may be exposed to at the host
worksite.
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Injury records for leased employees:
29 CFR § 1904.31, requires that an employer "record on the OSHA 300 Log the recordable injuries and
illnesses of all employees on [the employer's] payroll" and of "employees who are not on [the employer's]
payroll if [the employer] supervise[s] these employees on a day-to-day basis." 29 CFR § 1904.31(a). The
regulation goes on to reiterate that if an employer "obtain[s] employees from a temporary help service,
employee leasing service, or personnel supply service," that the host employer is obligated to record any
recordable injuries and illnesses if it "supervise[s] these employees on a day-to-day basis." Id. §
1904.31(b)(2). Therefore, in your first scenario, in which the host employer has full supervisory control over
employees, the host employer is responsible for injury and illness recording and reporting. In your last
scenario, in which only the temporary staffing agency exercises day-to-day supervision over employees, the
temporary staffing agency is responsible for injury and illness recording. In your other scenarios, the
temporary staffing agency and host employer share the supervisory role, so it is not readily apparent which
employer must comply with 29 CFR § 1904.31. In that case, OSHA advises that the two employers reach an
agreement regarding the responsibilities in question. Please note that only one employer's log should contain a
record of injuries and illnesses of the employees. Id. § 1904.31(b)(4).
(Emphasis Added).
OSHA’s division of safety responsibility:
Lastly, and most importantly, Section 5(a)(1) of the Occupational Safety and Health Act states "that each
employer shall furnish to each of his employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
Both the temporary employer and the host employer will be cited, therefore, if OSHA finds that both employers
were responsible for the violative condition(s).
Part II OSHA Policy Announcements:
OSHA has published two enforcement memoranda. These serve to put internal staff and the regulated
community on notice that the agency considers this arena ripe for some enforcement action. The
memoranda also require OSHA personal obtain information about who the Lessor company is, where
they reside, and the nature and extent to which the staffing company exercises joint control over the
work performed by the temporary employee. Another key consideration for the CSHO performing the
inspection is whether, with respect to the training provided to temporary employees, the training is
provided in a language those employees understand, in recognition of the fact that many temporary
employees do not speak English.
Interestingly, OSHA acknowledges, even if not explicitly, that these are employees provided pursuant to
contracts and, as such, some duties can be contractually assigned or delegated. However, if the
contractually assigned or delegated responsibility it not fulfilled, both employers are likely subject to
citations. OSHA considers the training and equipping of all employees to be critical to workplace safety.
OSHA remains skeptical that the leasing company can effectively train employees for all hazard
communication issues at a client’s facility and divides responsibility between general training and sitespecific training. If there is an accident or serious injury, both companies should expect a very critical
review of their programs.
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Copies of Memoranda to Regional Administrators along with other items of interest can be found at:
https://www.osha.gov/temp_workers/index.html
Conclusion:
USDOL OSHA is clearly concerned about these relationships between employers and the impact those
relationships have on safety. They are concerned that temporary employees are ill-prepared, lack
proper PPE, and are required to engage in the most dangerous work. This is a priority area. As such, you
should be thinking about how your program stacks up.
For example:
1. How does the leasing company provide basic training to prepare employees for site-specific training
to be provided by the host employer?
2. Are the temporary employees prepared for site-specific training when they arrive at the host
employer?
3. Do the employees understand the various chemical risks, lock-out/tag-out, confined-space, and
other safety needs of the host employer?
4. Who chooses and who provides the PPE needed for the temporary employee to perform his or her
work safely?
5. Which employer was actually responsible for supervising the work of any injured or killed
employee?
6. If one of these employees is injured, on whose 300 Injury Log does it appear?
7. Finally, OSHA’s whistleblower rules apply, to both employers. Both the temporary employer and the
host employer need to exercise caution when dealing with a temporary employee who has filed a
complaint that would subject that employee to protection under any one of a number of
“whistleblower” statutes.
Please direct questions to the writers:
Jeffry Carter
[email protected]
Phone: 317.872.8227
John D. Surma
Counsel
Adams & Reese
[email protected]
Phone: 713-652-5151
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The opinions and statements contained herein are the authors or direct quotes taken from the US DOL
webpage. Every attempt has been made to assure accuracy. When attempting to comply with complex
regulatory programs, you should always seek guidance of Counsel who has experience in the subject
matter.
Permission to reuse or quote any part is given. The authors appreciate acknowledging the source.
I would like to acknowledge the assistance and wise counsel of Mr. John D. Surma, of Adams and
Reese in Houston. His assistance and professional guidance was greatly appreciated.
10 February 2014
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