Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation? The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).
Staffing agencies commonly “employ” temporary workers: hire the workers, pay wages, provide any benefits, withhold taxes, pay employer taxes, etc. The company or “worksite employer” often directs how and when the work is performed, supervises the workers, and expects the workers to comply with company policies and procedures. In this situation, the staffing agency and the worksite employer are considered joint employers under the ADA, and both are responsible for ADA compliance.
Consider this scenario: Temporary worker Bob is an employee of ABC Staffing Company. Bob is placed with XYZ & Associates as a temporary office clerk. ABC pays Bob and provides his medical insurance and other employee benefits. XYZ sets Bob’s schedule, assigns him a supervisor, trains him on how to perform his job duties, and expects him to abide by its employee policies. On his first day on the job, Bob asks his XYZ supervisor for a $250 “stand and sit” desk due to a chronic back condition, and provides supporting medical documentation. XYZ alerts ABC to Bob’s request. The placement contract between ABC and XYZ is silent on this topic.
Here, ABC and XYZ are each independently responsible for providing Bob with a reasonable accommodation, absent an undue hardship. Because a $250 expense is not at all likely to support a hardship argument, Bob’s accommodation should be granted. As a best practice, ABC and XYZ should consider collaborating together to meet their ADA obligations.
The EEOC addressed this issue in an enforcement guidance on the application of the ADA to temporary and other contingent workers. As noted by the EEOC, it may be beneficial to all parties if the handling and costs of disability-related accommodations for temporary workers are addressed in the contract between the staffing agency and worksite employer. This enforcement guidance also provides helpful information about other ADA nuances unique to temporary workers.