8.25.14  

  InsideOSHAonline.com  

 

Eric J. Conn was quoted in an article titled "OSHA, NIOSH Unveil Temp Worker 'Recommended Practices,' Hone In On Shared Burdens."

 

An excerpt:

 

OSHA and NIOSH have jointly issued a "recommended practices" document on temporary worker safety and health that strongly emphasizes what the agencies view as the shared responsibilities of host employers and staffing agencies for ensuring regulatory compliance – echoing a previously stated OSHA position that legal sources say could bolster the enforcement agency's inclination to cite both employers after an inspection in such situations.

 

OSHA officials recently told stakeholders gathered in Washington that the guidance document was forthcoming with NIOSH approval, as part of a series of documents including a policy memorandum that explain in more detail the circumstances under which both sides of the temporary worker arrangement should be considered. OSHA has made temporary worker safety a major priority in recent years, with agency chief David Michaels expressing deep concern about a rash of accidents involving employees whom

 

One management-side attorney suggests that even if the document breaks little new policy ground it's almost certainly helpful for the employer community as it provides even further guidance. One key issue that OSHA will have to explore further is how contractual arrangements between the staffing provider and host employer can affect OSHA compliance on either side, according to Eric Conn, head of the OSHA group at Epstein Becker Green.

 

That's because OSHA has long maintained that employers cannot use contracts to avert any legal responsibilities under the OSH Act, Conn points out. The same issue emerged during the recent stakeholder meeting on temporary workers. That is also a legal matter with which OSHA has long grappled, Conn notes. "OSHA in various guidance documents has recommended that the host employer and staffing agency sort out who's responsible for what in their contract [but] OSHA ignored contracts, and says you can't contract away responsibilities that we (OSHA) believe belong to you," he says. "In reality, in the enforcement context, I would caution employers that the contract language will only carry you so far." Conn further says in most cases "the reality is that OSHA's going to cite both employers."