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November 21, 2012

Ms. Kathryn Bernard
Executive Vice President and General Counsel
Staffmark
435 Elm Street, Suite 300
Cincinnati, OH 45202

Dear Ms. Bernard:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA), in which you request guidance on the distribution of responsibility for certain OSHA safety requirements between a temporary staffing agency and its client. Following our conversation, this letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. We apologize for the delay in responding.

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Background: Staffmark is a temporary staffing agency (temporary agency) employing workers to fill temporary positions in many different industries. These positions range from secretarial work in offices to machine and forklift operations in industrial settings. Staffmark's supervisory authority over its placed staff depends on the needs of the client (host employer), and therefore the relationship may vary from project to project.

Question: Your letter presents several scenarios in which the temporary agency and host employer have varying amounts of supervisory authority and worksite control. In some cases, the temporary agency has no managers on site, whereas in others, it has low-level supervisors or supervisors with significant authority over workers on site. In each scenario, you ask whether the temporary agency or the host employer is responsible for: (1) OSHA-required safety training; (2) OSHA hazard communication; and (3) OSHA injury reporting and log requirements.

Response: 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. With each of the scenarios you presented, the extent of responsibility is dependent upon the specific facts of the situation. Information regarding the division of responsibilities with respect to the three particular issues you raised in your letter—training, hazard communication, and recordkeeping—appears below. Please note that all documents to which this letter refers are available at www.osha.gov.

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

Although your letter does not inquire about any particular industry or training program, you should know that there are specific OSHA standards which cover training requirements depending on the industry, worksite, and job duties to which the temporary agency sends its employees. 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.

HAZARD COMMUNICATION

Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals. The directive titled Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200, CPL CPL 02-02-038 [in context: CPL 2-2.38D | current regulation: CPL 02-02-079] , specifically discusses this issue:

[Hazard Communication Standard] [in context: HCS 1994 | current regulation: HCS 2012] training of temporary employees is a responsibility that is shared between the temporary agency and the host employer. The host-employer holds the primary responsibility for training since the host employer uses or produces chemicals, creates and controls the hazards, and is, therefore, best suited to inform employees of the chemical hazards specific to the workplace environment. The temporary agency, in turn, maintains a continuing relationship with its employees, and would be, at a minimum, expected to inform employees of the requirements of the standard. (CPL 02-02-38, Appendix A, Section h, March 20, 1998 [in context: CPL 2-2.38D | current regulation: CPL 02-02-079] )

Please see OSHA's February 3, 1994 interpretation letter to Michael F. Moreau for further discussion (enclosed).

RECORDKEEPING

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The OSHA injury and illness recording and reporting regulation, 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).

Since you are supplying workers to many different industries and OSHA recordkeeping requirements can vary between industries, please know that general information on recordkeeping requirements is available at http://www.osha.gov/recordkeeping/index.html. For additional information about injury and illness recording and reporting requirements where workers have been sent by a temporary staffing agency, see OSHA's June 23, 2003 letter available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24518.

Last 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).

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

Enclosure