OSHA requirements are set by statute, standards and regulations. Interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Enforcement guidance any be affected by changes to OSHA rules.

Determining who is the responsible party to record an injury or illness

Standards: 1904, 1904.31, 1904.31(a), 1904.31(b)(2), 1904.31(b)(3) and 1904.31(b)(4)

Standards: 1904, 1904.31, 1904.31(a), 1904.31(b)(2), 1904.31(b)(3) and 1904.31(b)(4) Date of response: Oct. 19, 2015

Scenario: A company employs contingent workers within a manufacturing environment. The staffing agency is responsible for filling personnel requests and placement of the employees. The staffing agency has an independent hiring process, which includes an orientation and training they conduct prior to placing an employee. The staffing agency is responsible for all personnel matters involving these contingent workers, which includes, but is not limited to, the following: vacation/leave requests, reporting injury/illness, compensation and benefits, corrective action/discipline, and drug screening. The staffing agency also provides onsite supervision for these employees 24 hours per day, five days a week. The company assigns the daily tasks to the contingent workers. Who is responsible for recording injuries and illnesses of contingent workers when supervision is shared by the host employer and the staffing agency?

Response: The scenario specifically states that the staffing agency provides onsite supervision for the contingent workers 24 hours per day, five days per week. However, based on the information in the scenario, there is no evidence that the staffing agency supervises the “details, means, methods, and process by which the work is to be performed.” The activities conducted by the staffing agency, such as vacation/leave requests, compensation and benefits, and drug screening, would typically be considered human resource activities, and would not rise to the level of day-to-day supervision. On the other hand, the scenario states that the company assigns “daily tasks” to the contingent workers. Assigning daily tasks constitutes supervising the “details, means, methods, and processes” by which these tasks are to be accomplished. Accordingly, the company provides day-to-day supervision for purposes of OSHA recordkeeping. Please keep in mind that Section 1904.31(b)(4) provides that companies and their subcontractors must coordinate their efforts to ensure that each injury and illness is recorded only once – by the employer who provides day-to-day supervision. As such, there can only be one employer actually providing day-to-day supervision under OSHA’s recordkeeping regulation. In other words, for purposes of OSHA recordkeeping, there cannot be joint day-to-day supervision of temporary workers. Also, the determination regarding which entity must record the injuries and illnesses of temporary workers must be based on the actual facts concerning day-to-day supervision at the worksite. This means that the entity that actually provides day-to-day supervision is responsible for recording cases on the OSHA Log regardless of the wording of the parties’ contractual arrangements.

Sincerely, Amanda Edens, director

Directorate of Technical Support and Emergency Training

Excerpted from: www.osha.gov/pls/oshaweb/owadisp. show_document?p_table=INTERPREATIONS&p_id=29951