Harmon & Davies, P.C.

Does your business employ “temporary workers?” According to the American Staffing Association, there are almost 3 million temporary workers in the nation’s workforce today – many doing hazardous construction or manufacturing work. Recognizing the growth in the use of temporary workers, and having received reports of injuries to such workers, the Occupational Safety and Health Administration (OSHA) has embarked on a national initiative “to protect temporary workers in order to halt the rising toll of fatal injuries.”

In April 2013, OSHA started its “Temporary Workers Initiative” (TWI) in order to help prevent work-related injuries resulting from the use of temporary employees. The stated purpose of the TWI was to highlight employers’ responsibilities to ensure these workers are protected against workplace hazards. OSHA expressed concerns that (1) temporary workers are inadequately trained to perform tasks that may present significant safety dangers and (2) temporary workers are particularly vulnerable to pressure by host employers to avoid reporting of work-related injuries. As part of its initiative, OSHA issued its Injury and Illness Recordkeeping Requirements applicable to temp workers. These state that if the “host employer” using the temporary worker maintains day-to-day control over the worker, the host employer is responsible for recording injuries. But the staffing agency should maintain “frequent communication” with the host employer to make sure that any injury is properly reported.

OSHA’s Recommended Practices for Protecting Temporary Workers

In August of this year, OSHA issued its Recommended Practices for Protecting Temporary Workers. It applies to “temporary workers” who are supplied by a staffing agency to a host company, and are referred to as “temporary” even if their period of assignment with the host is lengthy or indefinite. The “Recommended Practices” are designed to ensure that such workers receive the same level of training and protection that existing workers receive. These temporary workers are supplied to a host employer by the staffing agency. Both the staffing agency and the host employer have responsibilities to ensure that the temporary workers are properly protected. Both are considered by OSHA to be that employee’s “joint employer” for the purpose of meeting OSHA requirements. The extent of the employer’s obligations varies depending on the job done by the temp and the workplace environment. OSHA’s “recommended practices” for protecting temporary workers are the following:

1. Worksite evaluation. Before any temporary worker starts work for a host employer, both the staffing agency and the host employer should evaluate the latter’s worksite to which a worker might be sent, the anticipated job duties and the potential hazards and training the employee will need to safely use these facilities.
2. Training staffing agency personnel. Noting that many staffing agencies do not have “dedicated safety professionals,” OSHA recommends that temporary agency staff should be trained to recognize safety and health hazards. Agency staff should be trained regarding the equipment workers may use and how to use it safely.
3. Review agency and host training and safety records. The staffing agency should check to make sure the host employer meets the agency’s safety standards and training levels, and vice versa. The employer and agency should exchange each other’s safety records and review them to ensure compliance with safety standards. OSHA noted with approval that some employers will only hire temporary workers from agencies that adequately train the workers in safety.
4. Assign and define responsibilities regarding safety. The staffing agency and host employer should assign occupational safety responsibilities and define the scope of an assigned employee’s work, and tasks to be performed, in a written contract. When possible, the contract should specify whether the agency or the host employer is responsible for safety and health issues.
5. Injury and illness tracking and exchange of information. The employer and staffing agency should notify each other when injuries occur so both can be aware of the nature of the injuries and be better positioned to avoid such injuries in the future. OSHA requires that injury and illness records be maintained by the employer who is providing the day-to-day supervision of the employee. While the supervising employer is required to inform employees how to report work-related injuries and illnesses, both it and the staffing agency should inform the employee of this process. OSHA requires that injury/illness records be kept by the employer providing daily supervision of the temporary employee, usually the host.
6. Conduct safety and health training and new project orientation. OSHA requires site-and task-specific safety training. Staffing agencies should provide general safety training applicable to different occupational settings. Host employers should provide temporary workers with safety training that “is identical or equivalent to that provided to the host employers’ own employees performing the same or similar task.” Temporary employees should be told how to report an injury and get treatment.
7. Both staffing agencies and employers should have an injury and illness prevention program. Companies that do construction work must initiate and maintain accident prevention programs, provide for a competent person to conduct frequent and regular inspections, and instruct employees how to avoid unsafe conditions. 29 C.F.R. 1926.20, et. seq.   Employers should identify and track performance measures essential to evaluating the program’s effectiveness. Employers should conduct thorough investigations of injuries and illnesses.
8. The staffing agency should maintain contact with temporary workers assigned to a host. The staffing agency (a) has the duty to inquire and, if possible, verify that the host employer has fulfilled its responsibilities for a safe workplace (b) should have a written procedure for workers to report any hazards and instances when the workers’ tasks were altered from those agreed upon with the agency. Both staffing agency and host employer should inform the workers how to report hazards and changes to the job tasks.

How Businesses Should Respond to OSHA’s Recommended Practices

The new OSHA-recommended practices make it clear that staffing agencies and host employers are jointly responsible for providing and maintaining safe working conditions for temporary employees. Both should be aware of these recommendations and ensure that they are followed to protect the safety of temporary workers employed on their premises, and to avoid complaints of alleged violations. The recommended practices will require more intensive assessment of safety-protective steps by the agency and host employer, along with follow up by each to ensure that these practices are followed in the work place. Every use of a temporary worker should be subject to a written contract between the agency and the host. The contract should define the training and safety responsibilities of each. Before temporary workers commence job duties, host employers should ensure that they are properly trained in the safety aspects of the jobs for which they are assigned and the places in which they will be performing them. Records should be kept of this training.

While aspects of this initiative may seem onerous, or unnecessary, there are many more problems that arise if the recommendations are ignored. In that event, such problems could impact workers’ health and lead to legal complications. OSHA’s initiative will give plaintiffs’ lawyers more ammunition to be used regarding complaints of workplace safety. It may lead to more complaints by would-be “whistleblowers” that their employments were adversely affected by negative reactions to reports regarding the adequacy of safety measures and/or safety related training. Since OSHA prohibits employers from retaliating against employees for exercising rights under the Act, temporary employees who make reports regarding safety should not be treated adversely as a result of the report. Staffing agencies and host employers should give safety training and compliance heightened focus as a result of OSHA’s initiative, for all these reasons.

This article is authored by attorney David A. Flores and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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