In 2016, Amina Diaby, a refugee who came to Canada from Guinea, was killed two weeks after starting temporary work at Fiera Foods in Toronto. Diaby’s death resulted from injuries sustained when her head scarf got caught in an unguarded machine. Her story drew the attention of Toronto Star reporter Sara Mojtehedzadeh, whose eventual undercover investigation of Fiera Foods—one of North America’s largest industrial bakeries with a history of fatalities among temporary workers—was published by the Star in September 2017.
At AIHce EXP 2018 in Philadelphia, where Mojtehedzadeh delivered the Upton Sinclair Memorial Lecture, she told attendees, “The company’s record was almost perfect because injuries would show up on temp agencies’ records, not Fiera Foods’.” Since the publication of her articles, Mojtehedzadeh said, the Ontario government has made both temp agencies and host employers responsible to the workers’ compensation board when workers are injured on the job. The province has also mandated equal pay for equal work when temp agency workers are doing work comparable to that of full-time employees. Similarly, in the United States, regulatory agencies are now paying closer attention to the oversight of temporary workers. Recent guidance from both federal OSHA and the state of California clarifies that temp agencies and host employers are jointly responsible for the health and safety of temporary workers. This joint responsibility includes requirements related to training, hazard communication, and recordkeeping.  GUIDANCE FROM FEDERAL OSHA Workers employed through staffing agencies are generally called “temporary” or “supplied” workers. For the purposes of this article, “temporary workers” are those supplied to a host employer and paid by a staffing agency, even if the job itself is not temporary. Whether temporary or permanent, all workers always have a right to a safe and healthy workplace. The staffing agency and the staffing agency’s client (the host employer) are joint employers of temporary workers, and both are responsible for providing and maintaining a safe work environment for those workers, as described in “Recommended Practices: Protecting Temporary Workers,” a joint publication from OSHA and NIOSH.
RESOURCES California OSHA: Division of Occupational Safety and Health Policy and Procedures Manual, Dual-Employer Inspections (PDF, revised December 2017). California OSHA: Safety and Health Fact Sheet: Protecting Temporary Agency Employees (PDF, revised June 2015). OSHA: Protecting Temporary Workers. OSHA and NIOSH: Recommended Practices: Protecting Temporary Workers (PDF). The Synergist: “Reporter Goes Undercover to Expose Hazards Facing Temp Workers in Ontario” (May 2018).

OSHA stresses joint responsibility on its web page “Protecting Temporary Workers.” The exact level of responsibility for staffing agencies and host employers depends on the specific facts of each case. However, staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers—including ensuring that training, hazard communication, and recordkeeping requirements are fulfilled. OSHA could hold both the host and temporary employers responsible for any violations found during an inspection, including lack of adequate training regarding workplace hazards. Temporary staffing agencies and host employers share control over the worker and are therefore jointly responsible for temporary workers’ safety and health. There are concerns that some employers may use temporary workers as a way to avoid meeting all their compliance obligations under the Occupational Safety and  Health Act and other worker protection laws. Temporary workers may be placed in a variety of jobs, including the most hazardous jobs. Also, temporary workers are more vulnerable to workplace hazards and retaliation than workers in traditional employment relationships. Therefore, it is essential that both employers comply with all relevant OSHA requirements.  OSHA offers the following recommendations:
  • Communication between the agency and the host is essential to ensure that the necessary protections are provided.
  • Staffing agencies have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace.
  • Ignorance of hazards is not an excuse.
  • Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers.
  • The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.
  • Host employers must treat temporary workers like any other workers in terms of training and safety and health protections.
GUIDANCE FROM CAL-OSHA California OSHA has issued guidance on the role of the host employer versus that of the temporary employment agency in a “dual-employer” relationship. The most common dual-employer situation is one involving a temporary agency, staffing firm, or employee-leasing company that deploys an employee to work at another employer’s work site under the supervision and control of that other employer. The company supplying the employee (or having the employee on its payroll) is known as the “primary employer.” The primary employer is sometimes referred to as the “payroll” or “contractual” employer. The primary employer contracts with the employee to perform work in exchange for wages or a salary, issues the employee’s paycheck, secures workers’ compensation insurance for the employee, and usually retains hiring and firing authority. The company supervising the employee at the work site and controlling the employee’s work is known as the “secondary employer.” The secondary employer is sometimes referred to as the “site employer” or “host employer.” Cal-OSHA defines dual employer in its Health and Safety Fact Sheet, which states that both the primary employer (the temporary agency) and the secondary employer (the host employer) are responsible for the health and safety of the temporary agency’s employees. Primary employers must do the following: 
  • Take reasonable steps to evaluate conditions at the host employer’s work site by performing periodic inspections. 
  • Ensure its employees are covered by an effective Injury and Illness Prevention Program, or IIPP, and other safety programs required by the assigned work. The sidebar lists the necessary elements of an IIPP.
  • Inform the employees that they may refuse to do work they reasonably believe to be dangerous and may return to the primary employer for reassignment to other work without penalty. 
  • Provide appropriate personal protective equipment and training on the use of PPE or ensure that the secondary employer provides the PPE and the training. In most cases, the secondary employer is in the best position to determine the appropriate PPE. 
The primary employer should coordinate with the secondary employer to fulfill the PPE requirement. In practice, this means that the host employer must allow a representative from the temporary employment agency access to the site to allow for work site inspections. The host employer should provide to the temporary agency copies of its IIPP in California (or its health and safety programs outside of California). The host employer must provide the same applicable health and safety training as that provided to its regular employees.  It is a best practice for temporary employees to be included in the host employer’s new-hire orientation and area-specific training programs. They must understand the risks and hazards of the work they will be conducting before they are allowed to begin work. Supervisors must ensure that temporary employees know the locations of emergency exits and safety data sheets, and how to safely conduct their tasks. Often, the Job Safety Analysis (or work instructions that incorporate the elements of the JSAs) need to be reviewed by the temporary employee. It is always best to have a record of this training signed by the temporary employee and area supervisor. Temporary employees must be provided with the appropriate level of PPE and the same rights as permanent employees to refuse unsafe work. There are very few exceptions to the requirements of the host employer. The issue is who provides direction and control to the temporary employees. If an employer’s contract includes the requirement for on-site supervision by a representative of the temporary agency, then some of the host employer’s obligations for the health and safety of the temporary work force may be transferred to the agency. However, as stated in Cal-OSHA’s Policy and Procedures Manual, a “dual-employer” situation is one where an employee has two employers at the same time, and both employers are potentially liable for a violative condition to which an employee has been exposed. In California, the extent of the primary employer’s responsibility for ensuring the work site is safe for its employees depends on a number of factors, including whether the primary employer had authority to enter the secondary employer’s work site to supervise its employees’ work; the amount of influence the primary employer exerted over conditions at the work site; and whether the violation arose because the secondary employer relied on the primary employer for advice or consultation about workplace safety and health. As an example, a 2014 decision by the California Occupational Safety & Health Appeals Board held that a primary employer was liable for a serious accident-related violation because the employer had not prohibited its employees from working on an unguarded machine. The primary employer’s on-site supervisor knew about the hazard, but he lacked authority from the primary employer to intervene with the secondary employer to resolve safety issues. The Appeals Board held that the primary and the secondary employer are each independently required to protect the safety of the employees, regardless of any contract between the two employers. In other words, an employer cannot defend itself against an occupational safety and health citation by arguing it contracted away or delegated to some other employer its own occupational safety obligations. As the Appeals Board explained, “Each employer in the state of California owes a duty to its employees to furnish a safe and healthful place of employment.” The Appeals Board and the courts have also recognized limits to what can reasonably be expected of a primary employer when a secondary employer supervises the employees but excludes the primary employer from the work site. Even in those cases, however, a primary employer must still take all reasonable steps necessary to protect the health and safety of its employees. The central issue to keep in mind when evaluating situations that may not exactly fit the Appeals Board model is the reasonableness of the steps the primary employer took to ensure the safety of its employees at the secondary site. The reasonableness of the primary employer’s efforts depends on the severity of the hazards and the extent to which the primary employer has influence over conditions at the secondary work site. The Appeals Board decisions do not address many of the complexities that compliance personnel are currently encountering and will continue to encounter in this area, such as the applicability of these rules when the primary employer has been excluded from the secondary work site for a legitimate reason. RECORDKEEPING AND CONTRACTS OSHA recordkeeping is often not understood by the members of site operations teams, who may not know that the host employer is required to enter all recordable injuries/illnesses into the OSHA log. In addition, any serious injuries to temporary employees must be reported to Cal-OSHA within eight hours. Representatives of the temporary agency are often unaware of this requirement. Failure to report serious injuries or illnesses can result in Cal-OSHA issuing fines to both the temporary agency and the host employer. Host employers can be provided with some protections by clearly defining in writing roles and responsibilities and entering into well-written contracts. The host employer’s site contracts administrator or legal and risk management personnel should review and provide guidance for all contracts with temporary agencies prior to final acceptance and signatures.   LORRAINE SEDLAK, CIH, CSP, FAIHA, is director, ESH&S, at ITT Control and Connect Technologies in Irvine, Calif. DAVID HICKS is the chair of the AIHA Safety Committee. He works for the Architect of the Capitol in Washington, D.C., as a safety and occupational hygiene specialist. Send feedback to The Synergist. WangAnQi/Getty Images
Temporary workers are more vulnerable to workplace hazards and retaliation than workers in traditional employment relationships.
Requirements for Injury and Illness Prevention Programs in California In California, primary employers must establish, implement, and maintain an Illness and Injury Prevention Program. The IIPP must include the following elements:
  • A system for communicating effectively with employees about occupational safety and health (8 CCR § 3203(a)(3)).
  • Procedures for initial and periodic inspections to identify and evaluate workplace hazards at the secondary employer’s site (8 CCR § 3203(a)(4)).
  • A procedure to investigate occupational injuries and illnesses (8 CCR § 3203(a)(5)).
  • Procedures for either abating site-specific hazards to which the primary employer’s employees are exposed (8 CCR § 3203(a)(6)) or, if the primary employer does not have control over the worksite, procedures for working with the secondary employer to timely abate the hazards and, if necessary, for removing its employees from a hazardous or unhealthy worksite until the hazards or unsafe conditions are corrected.
  • Appropriate training for new employees and whenever the primary employer becomes aware of a new or previously unrecognized hazard (8 CCR § 3203(a)(7)). This training may be done by or in cooperation with the secondary employer.
Who Is Responsible for Temp Worker Safety?

The Dual-Employer Relationship
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Disadvantages of being unacclimatized:
  • Readily show signs of heat stress when exposed to hot environments.
  • Difficulty replacing all of the water lost in sweat.
  • Failure to replace the water lost will slow or prevent acclimatization.
Benefits of acclimatization:
  • Increased sweating efficiency (earlier onset of sweating, greater sweat production, and reduced electrolyte loss in sweat).
  • Stabilization of the circulation.
  • Work is performed with lower core temperature and heart rate.
  • Increased skin blood flow at a given core temperature.
Acclimatization plan:
  • Gradually increase exposure time in hot environmental conditions over a period of 7 to 14 days.
  • For new workers, the schedule should be no more than 20% of the usual duration of work in the hot environment on day 1 and a no more than 20% increase on each additional day.
  • For workers who have had previous experience with the job, the acclimatization regimen should be no more than 50% of the usual duration of work in the hot environment on day 1, 60% on day 2, 80% on day 3, and 100% on day 4.
  • The time required for non–physically fit individuals to develop acclimatization is about 50% greater than for the physically fit.
Level of acclimatization:
  • Relative to the initial level of physical fitness and the total heat stress experienced by the individual.
Maintaining acclimatization:
  • Can be maintained for a few days of non-heat exposure.
  • Absence from work in the heat for a week or more results in a significant loss in the beneficial adaptations leading to an increase likelihood of acute dehydration, illness, or fatigue.
  • Can be regained in 2 to 3 days upon return to a hot job.
  • Appears to be better maintained by those who are physically fit.
  • Seasonal shifts in temperatures may result in difficulties.
  • Working in hot, humid environments provides adaptive benefits that also apply in hot, desert environments, and vice versa.
  • Air conditioning will not affect acclimatization.
Acclimatization in Workers