Can Employers Rely on Third Party Trainings under the Occupational Safety and Health Act?

Oftentimes, employers rely upon an employee’s training by another (third) party to comply with the Occupational Safety and Health Act of 1970’s (the “Act’s”) training requirements.  But, is it enough to simply rely on the representation that the employee was trained by a third-party?  Best practices indicate employers should go one step further than just confirming an employee’s training background in order to insulate themselves against liability and to fully comply with the Act’s requirements.

Under the Act, employers are responsible for providing a safe and healthful workplace.  Throughout the Act, reference is made to the responsibility being on the employer to ensure a safe workplace, including the proper training of employees.  Many OSHA standards include explicit safety and health training requirements to ensure that workers have the required skills and knowledge to safely do their work.  These requirements reflect OSHA’s belief that training is an essential part of every employer’s safety and health program.

The Act’s “General Duty Clause” requires that “each employer” furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Ultimate responsibility for compliance is on the employer.  While employers may use third parties to help meet the requirements of the Act (e.g. conduct training) they may not shift this ultimate responsibility for the health and safety of employees to third parties.  See Well Sols., Inc. Rig No. 30, 17 O.S.H. Cas. (BNA) ¶ 1211 (O.S.H.R.C. Apr. 19, 1995); Brock v. City Oil Well Serv. Co., 795 F.2d 507, 511-12 (5th Cir. 1986).

So, while employers may use third party trainings, it is prudent that the employer keep up-to-date records of their employees’ trainings, in order to demonstrate they have complied with OSHA’s standards.  Further, employers must ensure employees have not only completed the required training, but also, that they comprehended it.

Here are a few key tips for employers:

1. Know the training requirements for your industry.  In addition to an employer’s obligations under OSHA’s General Duty Clause there are additional more specific regulations that apply to certain industries.  Specific training requirements can be found throughout the Act for various industries.  In fact, more than 100 of the current standards contain requirements for training.
2. Document that employees understood their training.  Recent case law interpreting the Act and regulations have emphasized the need to not only train employees, but to ensure and show they understand the training received.  Millard Refrigerator Servs., Inc. v. Secretary of Labor, 718 F.3d 892, 896-97 (D.C. Cir. 2013).  Merely claiming that the employer was unaware of the employee’s lack of training comprehension is inadequate – the regulations place the burden to ascertain that employees received and understood the training required.  Showing an employee understood his training is also important to show the adequacy of subsequent instructions given to an employee by an employer.
3. Create and maintain accurate records.  While OSHA guidance recommends that employers keep records of trainings, case law and practice demonstrate that in order to show an employee received and understood training, documentation is a must.  It will be the employer’s burden to show that employees have been properly and effectively trained.  The best way to show this is through up-to-date records showing when and where trainings are performed, and an assessment of the employee’s knowledge from the training.  This can be accomplished through such activities as demonstrating skills or more traditional testing.

Employers may, and often do, rely upon third-party trainings to comply with OSHA’s standards.  Make sure that you have full documentation of the training received from the third-party and that you (the employer) can prove that the employee comprehended the training that he or she received.  Documentation of completed trainings, along with employee assessments, will help insulate employers from liability for failing to comply with specific training requirements and defending against violations of the General Duty Clause.

About the Author: Lindsay E. Nadeau

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