In 2013, the Occupational Safety and Health Administration (OSHA) launched the Temporary Worker Initiative (TWI) to focus on preventing injuries and illnesses among temporary workers. OSHA recently released a policy memorandum addressed to its field staff reminding them of the agency’s long-standing enforcement policy for temporary workers. The memo specifically attempts to clarify the responsibilities of staffing agencies relative to the duties of host employers and to provide guidance on when inspectors should open an investigation. 
Defining temporary workers, joint employers
OSHA defines temporary workers as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.” In practice, the staffing agency usually controls a worker’s paycheck and sends the worker to the host employer’s workplace; the host employer assigns particular tasks to the worker and supervises worksite operations.
For those reasons, OSHA considers host employers and staffing agencies “joint employers,” a legal concept recognizing that “in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers.” Consequently, each employer bears responsibility for compliance with legal and regulatory requirements.
Clarifying joint employer responsibilities
The policy memorandum indicates that the obligations of the staffing agency and the host employer will vary depending on workplace conditions. To determine the exact responsibilities of both parties, OSHA engages in a “highly fact-specific analysis.” As part of its inquiry, OSHA compliance officers are directed to review any contracts between the staffing agency and the host employer to determine if the parties have purposefully allocated certain burdens necessary to safeguard employee well-being. A contract may not discharge an entity of its obligations under the Occupational Safety and Health Act (OSH Act), however.
The host employer is typically charged with the responsibility of discovering any potential hazards at the jobsite and complying with specific workplace requirements. The staffing agency should usually ensure that it adequately trains workers in preparation for their specific assignment and doesn’t shuttle employees off to unreasonably dangerous worksites. OSHA advises both parties to assess the job assignments to identify and eliminate potential safety threats before entering into a joint employer relationship.
Communication is key
If a temporary worker is injured at a host employer worksite, the host employer should inform the staffing agency of the injury. The staffing agency, in turn, should follow up with the host employer on what remedial measures were implemented.
Similarly, if a staffing agency learns of a temporary worker’s injury, possibly through a workers’ compensation claim, it should inform the host employer that it must take preventive measures before additional workers are injured. Dialogue to strategize the prevention of future injuries should also occur after a worker is injured.
Staffing agency inspections
If a temporary worker is or could be exposed to a serious hazard, or if the staffing agency doesn’t attempt to learn of the conditions at the host employer’s workplace, the OHSA compliance officer is directed to initiate an inspection of the staffing agency. In all other instances, area OSHA directors may decide, based on the evidence found during the inquiries, whether to open an inspection of the staffing agency.
When a temporary worker is exposed to a safety violation, the compliance officer should make inquiries into the staffing agency’s actual or constructive knowledge of the worksite’s hazards — i.e., whether the staffing agency knew or, with the exercise of reasonable diligence, could have known about the hazards. The officer is directed to review factors such as:
(1) The terms of the contract between the staffing agency and the host employer;
(2) The interaction and communication between the staffing agency and the host employer; and
(3) The staffing agency’s contact with its temporary workers (specifically, whether the workers have had any complaints and if so, whether they notified the employers of their concerns).
Bottom line
OSHA is preparing a series of policy memos on temporary workers to assist its field officers. Other topics to be addressed could include 
whistleblowing, personal protective equipment (PPE), training, hazard communication, the duty to inquire, hearing conservation programs, exposure to heat, and operation of powered industrial trucks. Stay tuned for future updates.
Gregory L. Silverman is an attorney with Sulloway & Hollis, P.L.L.C., practicing in the firm’s Concord, New Hampshire office. He may be conatacted at gsilverman@sulloway.com.