Do You Know Who is Responsible for Temporary Worker Medical Testing?
Working on a temporary basis—temping—has been a surging trend since the Great Recession of 2008. “Temps” or contracted workers have increased 50% since 2009, totaling about 2.8 million people, according to the Bureau of Labor Statistics (BLS). Many take on long-term assignments with host employers (the owner/operator of the worksite where the temp is working) that last months and even years in some cases.
The Occupational Safety and Health Administration (OSHA) has put a strong emphasis on protecting the safety and health of temp workers on the job. The Assistant Secretary of Labor at OSHA, Dr. David Michaels, has repeatedly said in speeches over the past two years that OSHA receives far too many fatality reports involving temporary workers doing dirty, dangerous work, often without appropriate safety training, supervision, and personal protective equipment (PPE).
This “overlap of duties” comes into play when determining who is responsible for conducting any OSHA-required medical tests for temporary workers–the staffing agency or the host employer?
Said the OSHA spokesperson: “The host employer would be the primary party responsible for complying with workplace-specific standards relating to machine guarding, exposure to noise or toxic substances, and other workplace-specific safety and health requirements.”
In response to a query from an employer in November, 1995 (“If the temporary worker is assigned to tasks which require medical monitoring, who is responsible for this: the host employer or the temporary agency/supply employer?”), OSHA’s Ray Donnelly, then director of the Office of General Industry Compliance Assistance, wrote: “The host employer must offer and perform the required medical surveillance or evaluations. The temporary agency employer must ensure that the records of the required medical surveillance or evaluations are maintained in accordance with the appropriate OSHA standards.”
Said an OSHA spokesperson: “Temporary workers are entitled to the same protections under the Occupational Safety and Health Act as all other covered workers. The staffing agency and host employer are jointly responsible for ensuring that OSH Act requirements are fully met and that the temporary worker is provided a safe workplace. The extent of the obligations each employer has will vary depending on workplace conditions and may be clarified by their agreement or contract. Their duties will sometimes overlap.”
“How are the access to medical information and industrial hygiene test exposure data affected by the temporary worker-host employer relationship?” Donnelly was asked. He wrote: “The temporary agency employer is required to maintain employee records in accordance with the appropriate OSHA standard. However, the host employer must perform the site characterization and monitoring of exposure to hazardous chemicals on the worksite.”
This OSHA “letter of interpretation” was updated in 2002.
In a 2014 webinar, OSHA director of the agency’s Directorate of Enforcement Programs, Thomas Galassi, spelled out how issues such as the medical testing of temp workers need to be discussed between the staffing agency and the host employer, and written into the contract language covering the temporary work assignment.
Said Galassi: “First, staffing agencies and host employers should each have a safety and health program and ensure that temporary workers are addressed by them. A safety and health program should help employers both identify hazards and develop protective measures for temporary workers.
“Next, both employers should perform a hazard assessment of the worksite. Typically, we would expect the host employer should have performed a hazard assessment of its worksite. Before sending workers to the site, the staffing agency should be aware of the hazards existing at the worksite.
“Staffing agencies need not become experts on specific workplace hazards, but should determine what conditions exist at their client (host) worksite, what hazards may be encountered, and how best to ensure protection for the temporary workers.
“Each employer should consider the hazards it is in the best position to prevent and correct, and also best positioned to comply with the relevant OSHA standards.
“Both employers should define the scope of work in the contract: Defining the scope of the temporary workers' duties discourages tasking workers to perform work that they are unqualified and untrained to perform, and which may carry a high risk of injury.
“OSHA strongly 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.”
Communication, collaboration, and a true partnership between the staffing agency and the host employer is essential for the safety and health of temporary workers. Any required medical testing of temps for jobs undertaken at the host employer’s worksite, such as working in high noise levels, wearing respiratory protection equipment, or doing asbestos abatement, or lead paint removal, should be clarified by contacting the closest federal OSHA area office (or state OSHA office if working under a state OSHA program), with the party responsible for testing identified, and written into the contract.