Review Commission Decision on Host Employers'
OSHA Responsibilities for Temporary Agency Workers

The Occupational Safety and Health (OSH) Review Commission, which decides appeals from administrative law judge decisions in OSHA citation cases, issued a decision earlier this year that has broad implications for all employers who use temporary workers. The case, Secretary of Labor v. Froedtert Memorial Lutheran Hospital, Inc., 20 BNA OSHC 1500 (Rev. Comm. 2004), involved a hospital that used the services of housekeepers who were provided by two different temporary agencies. The housekeepers came to the hospital with basic training on housekeeping activities, but without any specific OSHA training.

In analyzing whether the hospital was the "employer" of the temporary housekeepers, and thus legally responsible for complying with OSHA requirements applicable to them, the Review Commission first noted that the housekeepers' status as temporary agency employees was not determinative of whether they were also "employees" of the hospital within the meaning of the OSH Act. The Commission relied on the following common law agency factors, first set out by the U.S. Supreme Court in Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318, 322-323 (1992), to determine whether the housekeepers were the hospital's statutory employees:

The Review Commission explained that all of these factors must be considered and that, although no one factor is determinative, the control over or supervision of the worker remains the "principal guidepost" in the analysis. The Review Commission further explained that these factors need not all be given equal weight and that the relative weight would depend upon the facts of each case.

In applying the factors to the case, the Review Commission found that the hospital directed the day-to-day work activities and controlled the manner and means of the temporary housekeepers' daily work. For example, the hospital directed the way in which its facility was cleaned, provided the tools and products with which the cleaning was done, directed the housekeepers to the areas it needed cleaned, and told them when to clean certain areas, reassigned the housekeepers to different locations and shifts as needed, corrected the housekeepers when their work was wrong or unsafe, and assigned each housekeeper a "buddy" to provide on-the-job instruction.

Once it determined that the temporary housekeepers were employees of the hospital for purposes of the OSH Act, the Review Commission analyzed whether the hospital could have delegated its OSHA compliance duties with respect to the temporary housekeepers. The hospital argued that one of the temporary agencies had stated that it would provide Hazard Communication and Bloodborne Pathogens training, as well as the required hepatitis B vaccinations, and that the hospital had relied upon the temporary agency to provide these services. The Review Commission found, however, that the hospital failed to follow up to determine whether any of these services had actually been provided to the temporary housekeepers. According to the Commission, although the hospital could have properly delegated its compliance obligations to the temporary agencies, it did so at its own peril. The failure to follow up with the temporary agencies to ensure that they were undertaking these activities undercut the hospital's argument that it was justified in relying on this delegation to the temporary agencies.

In sum, the Review Commission's decision makes clear that a host employer who controls the daily work activities of temporary employees is required to comply with applicable OSHA standards to protect the safety and health of temporary workers. If the host employer elects to rely upon a temporary agency in the fulfillment of any of these OSHA duties, the host employer should ensure that there are contracts in place specifying each party's role in meeting the compliance obligations, and the host employer should require the temporary agency to verify in writing that the temporary agency's compliance obligations under the contract have been met.

Finally, it is important to note that the Review Commission in the Froedtert case did not address OSHA's Multi-Employer Citation Policy since the Commission found that the temporary housekeepers were statutory employees of the hospital. Host employers should understand that even if temporary workers cannot be considered employees of the host (e.g., the host does not control the manner and means by which the temporary workers accomplish their tasks), OSHA could still cite the host employer under the Agency's Multi-Employer Citation Policy for creating or controlling hazardous conditions to which the temporary workers are exposed.

If you have any questions, please e-mail us at: Carla Gunnin at cgunnin@constangy.com, Bill Principe at bprincipe@constangy.com, David Smith at dsmith@constangy.com, Pat Tyson at ptyson@constangy.com, or Neil Wasser at nwasser@constangy.com.

You may also call us at 404-525-8622.