Who’s Responsible for Reporting Temporary Staff Injuries to OSHA?

As mentioned in many previous newsletter articles, promptly reporting serious injuries to OSHA is an employer requirement per Section 342(a).  However, what happens when the worker is from a temporary staffing organization?

Cal/OSHA has a “dual employer” policy which can be found in their Policy and Procedure Manual, Policy C-1D (which is also available online).  This policy defines types of employer situations and liability.  Simply stated, there are two types of employers; Primary and Secondary.  A “primary” employer is typically the temporary staffing employer or the employer who loans or leases employees to a “secondary” employer.  The “secondary” employer is the one that typically controls the day-to-day activity of the loaned employees.  Making matters a little confusing, in some instances an employee may have more than one employer, which is determined by the employer(s) exercising certain powers of control over the employee.  That said, the principal consideration is whether both the primary and the secondary employer have the right to control and direct the activities of the employee.

What should occur when the employee who is working for a secondary employer suffers a serious injury that requires more than 24 hours of hospitalization?  It is clear in Section 342(a) that an employer must report “immediately….to the nearest District Office…any serious injury or illness or death of an employee occurring in a place of employment or in connection with any employment.”  Immediately means “as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.  If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.”

Still, the question remains, which employer is required to report an injury of a temporary employee to OSHA?  In reviewing decisions by the Cal/OSHA Appeals Board, it appears that the Board holds that all employers, both primary and secondary, have an obligation to report a serious injury under Section 342(a).  So, if you use temporary staffing personnel, and if one of the temporary employees suffers a serious injury, remember that you are responsible for reporting the injury to OSHA.