OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

April 10, 2000

Mr. Pedro P. Forement
Ford & Harrison LLP
516 Ingraham Building
25 S.E. 2nd Avenue
Miami, Florida 33131

Dear Mr. Forement:

Thank you for your December 30, 1999 letter to the Occupational Safety and Health Administration's (OSHA's) [Directorate of Enforcement Programs (DEP)]. We apologize for the delay in our response to your letter regarding powered industrial truck operator training. Specifically, you requested guidance on several options employee leasing companies may implement in order to be compliant with §1910.178(l).

Your letter addresses the situation in which a powered industrial truck operator is employed by an employee leasing company and the leasing company assigns the operator to work at one or more work sites operated by other employers (host employers). Your questions recognize that the leasing company is required, under §1910.178, to ensure that its employees are adequately trained and evaluated before they may operate a powered industrial truck at a host employer's facility. Your questions pertain generally to whether it is acceptable for the host employer to provide the necessary training and what the leasing company must do to ensure that adequate training has been provided. Your options and questions have been restated below for clarity.

Option 1. The employee leasing company (temporary agency) requires that the host employer provide all training and evaluation on industrial trucks to the leased employee before the leased employee is permitted to operate any such equipment. Thereafter, have the host employer provide the temporary agency with information on the training it has provided the employee. Require that the host employer provide any refresher training as required should a qualifying event (i.e. a near-miss, accident, etc.) occur while the employee is assigned to the host employer. The temporary agency will record the date of initial training so that an evaluation can be held as required (at least once every three years). The temporary agency would inform all employees that they are forbidden to operate an industrial truck unless trained beforehand; the employee would be required to notify the temporary agency immediately upon being requested by the host employer to operate such equipment without the prior training. Under this option, the temporary agency would track the training based on the information provided by the host employer but would not provide any of the training itself.

Question 1. Would a temporary agency adopting Option 1 be in compliance with the current OSHA industrial truck standard?

Response. Possibly, however the temporary agency in your description would have to ensure that such individuals have been properly trained in accordance with the provisions of the standard before they are permitted to operate powered industrial trucks at the host employer's location. Therefore, the temporary agency would have to have a reasonable basis for assessing that the host employer's training is adequate. In addition, an evaluation of the operator as required by §1910.178(l) is necessary. Furthermore, a certification including the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training and evaluation is needed to document that the required training and evaluation have occurred.

Option 2. The temporary agency would require that all employees sent to the host employer be trained by the host employer on each type of industrial truck the employee will be asked to operate, regardless of the employee's prior training or certification. Under this option, the host employer would be responsible for all training. Because each employee would be trained on each industrial truck present at each assignment, every time they go to a new assignment, this would eliminate the need to track training between assignments as the training would be assignment-specific and repeated with each new assignment. Moreover, the refresher training, upon a qualifying event, would also be conducted by the host employer. Because the employee would be re-trained each time they are sent to a particular assignment involving an industrial truck, there would be no need for re-certification confirmation every three years because they are, in essence, being recertified with each new assignment requiring operation of an industrial truck.

Question 2. Would a temporary agency adopting Option 2 be in compliance with the current OSHA industrial truck standard?

Response. Possibly, however this option only discusses temporary employees who would go to new assignments. You have not discussed the procedure if the temporary employee returns to a host employer where they have been previously trained, evaluated, and certified on the same type of truck and site-specific topics. Would the host employer conduct the training and evaluation again? Retraining the employee in these circumstances is not disallowed by the standard, however the standard clearly discusses avoidance of duplicative training at §1910.178(l)(5). Employers do not have to duplicate training that the operator has already received provided that the operator has been evaluated and found competent to operate the truck safely.

However, it is unclear in your description whether or not a three year evaluation as discussed in the standard is required since the operator may be assigned to the same workplace for more than three years and the training (according to the description) would only be conducted upon new assignment. In this circumstance, the operator would not be evaluated every three years as required by the standard. Again, as stated in the first response, the temporary employment agency would still need to ensure that their employees are competent to operate the powered industrial trucks.

Option 3. The temporary agency would require that the host employer identify, beforehand, whether a temporary employee will be required/expected to operate an industrial truck. The employee will be advised in writing by the temporary agency whether their particular assignment will or will not require them to operate an industrial truck, and notification that, to the extent the assignment does not require operation of an industrial truck, the employee should immediately notify the temporary agency should the employee be requested to operate such a truck by the host employer. Moreover, the temporary agency would advise its employees that operation of such a truck without proper training is a violation of the law, and could result in unsafe practices, injuries, and civil penalties. Therefore, the employee would be instructed not to operate any industrial truck without prior training.

To the extent an employee of the temporary agency is required to operate an industrial truck, the employee must be properly trained by the host employer. The temporary agency will require certification that the host employer has properly trained the employee on the specific industrial truck. In the event that a temporary agency employee is observed engaging in unsafe operation of an industrial truck, or is the cause of an unsafe condition, or is involved in an accident or near-miss incident, the host employer will provide the refresher training and proof of such training to the temporary agency. Because the host employer will provide training on all industrial trucks available for use each time an employee is assigned to the facility, the need for re-certification would only arise in limited cases where the temporary employee is assigned to a particular host employer for more than three years. In such a case, the temporary agency will track the length of the assignment and require that the host employer provide the necessary re-certification.

Question 3. Would a temporary agency adopting Option 3 be in compliance with the current OSHA industrial truck standard?

Response. Whether an employer who takes the steps listed in the first paragraph of Option 3 is in compliance with the standard cannot be decided without additional facts. Certainly, if the temporary agency's employees follow instructions not to operate a powered industrial truck without proper training, the employer would be in compliance. If an employee disregards such instructions and operates a powered industrial truck without proper training, the employer can avoid liability only by showing that the employee acted contrary to a well established work rule that was effectively communicated to employees, that the employer effectively enforces the rule if and when violations are discovered. Your option suggests that the rule not to operate a powered industrial truck without proper training is effectively communicated to employees. It is also a good practice to instruct employees to notify the temporary agency if the host employer asks it to operate a truck without proper training. However, before saying whether or not the temporary agency is in full compliance with the standard, we would need additional facts concerning how effective the rule is in practice, what steps the temporary agency takes when a host employer improperly asks an untrained employee to operate a powered industrial truck, and if and how the temporary agency disciplines its employees when they violate work rules.

It is not clear how the second paragraph of Option 3 differs from Option 1. As stated in the response to Option 1, the temporary agency can have the host employer provide the training but must ensure that all required training, evaluation, and certification have taken place and must have a reasonable basis for believing that the host employer's training is adequate. Whether or not an assignment lasts longer than three years, the temporary employer must ensure that the operator's performance is evaluated at least once every three years.

Please be advised that OSHA can not and will not interpret your options as approved OSHA policy nor as an acceptable agreement that must be followed by all employee leasing companies and their clients.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at
http://www.osha.gov. If you have any further questions, please feel free to contact the [Office of General Industry Enforcement] at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
[Directorate of Enforcement Programs]

[Corrected 6/2/2005]