What are your OSHA duties to temporary workers (“temps”) whom you hire from a temp agency to work at your firm? Stated differently, are you or the temp agency responsible for the temp’s health and safety? Here’s a set of scenario quizzes that illustrate how the rules work.
SCENARIO 1: RESPONSIBILITY FOR HAZCOM TRAINING
The Temps R’Us Agency (Agency) assigns an employee to temporary work at XYZ Company (Company). Agency is perfectly aware that knows that Company’s workers handle and use hazardous chemicals. But the temp has no Hazcom training whatsoever. As a result, he suffers an injury as a result of exposure to a toxic chemical while working for Company.
QUESTION
Who’s responsible for providing the temp the required Hazcom training?
- Agency
- Company
- Both
- Neither
ANSWER
- Both the Agency and Company face potential fines for failing to provide the temp Hazcom training.
EXPLANATION
In a 1994 Interpretation Letter, OSHA made it clear that where a temporary employment agency sends one of its employees to a client site that the agency knows or should know exposes the employee to chemical dangers (which is clearly the case in this scenario), it considers both the agency and client responsible for ensuring that the temp has the required Hazcom safety training and information. According to OSHA:
- The temps agency would be expected to provide the temp general training about Hazcom, labels, SDSs, etc. required; and
- The client would be responsible for providing the temp site-specific training, e.g., where the SDS binder is kept, what hazardous chemicals the temp will be exposed to, what PPE is required to prevent illness or injury, etc.
OSHA confirmed that this remains its position in a 2012 Interpretation Letter.
SCENARIO 2: PPE
Same situation as above. But now assume that the temp is working in an operation that requires eye and face protection but isn’t furnished the right equipment, let alone instructed how to use it. As a result, she suffers an avoidable injury when a caustic chemical splashes into her eye.
QUESTION
Who’s responsible for providing the temp the required eye and face protection?
- Agency
- Company
- Both
- Neither
ANSWER
- Company is responsible.
EXPLANATION
According to that same 1994 Interpretation Letter, client employers are responsible for providing PPE for site-specific hazards to temps. However, the Letter leaves open the possibility of holding the temp agency accountable for not including in its contract with the client employer an express provision requiring the client to provide the temp whatever PPE is required to do the job.
SCENARIO 3: MEDICAL SURVEILLANCE
Let’s now assume that the temp will be involved in work operations involving hazardous concentrations of a hazardous product for which medical monitoring is required.
QUESTION
Who’s responsible for performed the required medical evaluations and monitoring of the temp?
- Agency
- Company
- Both
- Neither
ANSWER
- Both Agency and Company have responsibilities for medical monitoring of the temp.
EXPLANATION
Here’s how OSHA divvies up the responsibilities:
- The client employer must offer and perform the required medical surveillance or evaluations and keep the required medical records;
- The temp agency is responsible for making sure that the client employer meets these responsibilities and that all of the required tests and monitoring are carried out and properly documented;
- The agency is also required to maintain cumulative exposure and medical monitoring records where the temp is exposed to hazardous substances requiring monitoring at more than one client employer site.