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February 12, 1992

Mr. Jack Zickafoose
USEC Fund Coordinator
United States Employer
Consumer Association, Inc.
Post Office Box 10200
Bradenton, Florida 34282

Dear Mr. Zickafoose:

One of my staff members recently learned about a letter sent by the Atlanta OSHA regional office to your company regarding recordkeeping and training responsibilities. The letter describes the responsibility for recording occupational injuries and illnesses when employees are provided by an employee leasing company. The Atlanta letter contains two issues that require some further clarification.

After a discussion with Mr. Tom Holland regarding scenarios one and two of your letter, it appears as though the employee leasing company is an agent to which the client company has contracted its personnel activities (payroll, workers compensation insurance, etc). As stated in the enclosed OSHA Review Commission decision involving the Dayton Tire and Rubber Company and Manpower Inc., the contracting of personnel functions does not change the status of the client company as an employer. The employer may use another company to keep its injury and illness records, but it is the employer who has a nondelegable duty to keep accurate and complete records.

The enclosed Recordkeeping Guidelines for Occupational Injuries and Illnesses also discusses the employer relationship. On page 24 of the guidelines, Question A-2 addresses the use of workers from a temporary help service on a contract basis. The answer states that "if the temporary workers are subject to the supervision of the using firm, the temporary help supply service contractor is acting merely as a personnel department for the using firm, and the using firm must keep the records for the personnel supplied by the service." Even though the employees in scenario one and two of your letter are not temporary employees, it appears that the leased employees are subject to the supervision of the using firm, and that the leasing company is acting as a personnel department for the using firm.

In short, the responsibility for recordkeeping is no different than the responsibility for training or any other OSHA requirement. The company that has direct supervision over the day-to day activities of employees is responsible for maintaining the injury and illness records for those employees.

The second issue discussed in the Atlanta letter concerns the linkage of workers' compensation claims with OSHA recordkeeping. Although many cases will be both recordable on the OSHA 200 Log and workers' compensable, the two systems use entirely different criteria for work relationship, severity, etc. Many cases that are recordable on the OSHA Log are not covered by workers' compensation. At the same time, many compensable cases are not recordable on the OSHA 200 Log. Question G-3 on page 46 of the recordkeeping guidelines specifically addresses this issue.

If you wish to discuss these issues further or have any questions, please contact my staff at (202) 523-1463.

Sincerely,



Stephen A. Newell
Acting Director Office
of Statistics

Enclosures



January 23, 1992

United States Employer
Consumer Association Inc.
P.O. Box 10200
Bradenton, FL 34282

Employee leasing companies have clients with a workforce that may vary from 5 employees to 500 employees. The employee leasing company covers these employees under their respective state workers' compensation insurance programs. All workers' compensation injuries are reported to the employee leasing company through the clients representative.

Keeping this in mind, I would like OSHA's opinion on the following scenario's:

1) LEASING ALL EMPLOYEES

Employee leasing company leases all employees at a particular clients location. The owner of the client company, usually also a leased employee, acts as the location supervisor for the employee leasing company. One of the supervisors duties is reporting workers' compensation claims to the employee leasing company and to our claims service company.

QUESTION: Is the employee leasing company or the client company responsible for filling out, updating and posting OSHA's form 200 log?

2) LEASING ONLY PRODUCTION EMPLOYEES

The employee leasing company leases ONLY the production employees and not upper management employees. In this case, even though upper management are not leased employees or covered by the employee leasing company workers' compensation policy, they act as the locations supervisor for the leased employees.

QUESTION: As in scenario #1, is the employee leasing company or the client company responsible for filling out, updating and posting OSHA's form 200 log?

3) PART TIME AND TEMPORARY EMPLOYEES

These are employees who work for an employees leasing company but are assigned to work for different clients on a daily, weekly or monthly basis - but NOT on a permanent basis.

QUESTION: Same as #1 & #2, is the employee leasing company or the client company responsible for filling out, updating and posting OSHA's form 200 log?

4) EMPLOYEE LEASING RESPONSIBILITIES

If OSHA's opinion is that the employee leasing company is responsible for filling out, updating and posting the OSHA form 200 log, then the question is:

Does the employee leasing company send all their clients the OSHA log 200 for posting during the month of February, is it sent only to clients with 10 or more employees or is it sent at all?

5) To help control worker's compensation claims, the USEC fund may make it mandatory for certain workers compensation classification codes to use safety equipment, ie: back belts, hard hats, safety glasses, etc., while the employees are performing their work duties.

QUESTION: If the USEC fund and the employee leasing companies mandate the above safety equipment order, who would be held liable for the proper use and training of these and other safety equipment in the "eyes" of OSHA?