Provided by: Judge Ruth B. Kraft

OSHA (the Occupational Safety and Health Administration) has recently issued guidelines indicating that temporary workers are inadequately protected against workplace hazards. One of the problems that commonly arises is the case of home healthcare workers, as the workplace is not an office or facility but the client’s domicile. OSHA has concluded that temporary workers may not receive adequate training and that, as a consequence, several individuals died in the course of employment in 2013. OSHA investigators are now tasked with determining “within the scope of their inspections, whether any workers are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.”

Employers who employ temps through staffing agencies have always had the obligation to insure that they are correctly trained on and protected against workplace hazards. To this point, staffing agencies which have absolutely no supervisory impact on employees or control over the workplace have not been subject to citations to date under OSHA’s multiple employer worksite doctrine. However, OSHA is now placing a due diligence obligation on staffing companies to know what tasks their employees will be performing after assignment to an employer and what safety hazards they may encounter or be exposed to.

OSHA has not yet articulated the standards for due diligence. However, given the Department of Labor’s focus on direction and control in other contexts, I think it is dubious that it will conclude that staffing agencies have absolutely no supervisory impact. I believe that this will be the first step on the road to joint and several liability or accountability going forward.

If your business hires agency temps, not only should you train them in workplace hazards applicable to your business and the work location, but it is not unreasonable to require the agency to provide you with proof that it has trained them as well. I would say the same thing to the agencies: know your clients and how they operate. Together, you can built a safer, less hazardous work environment and mitigate risk.

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