On July 15, 2014, the Occupational Safety & Health Administration issued a policy document on its temporary worker initiative (TWI), which has now been underway just over a year. The goal of the TWI is to prevent occupational injuries and illnesses among temporary workers, who have been found by OSHA (and other researchers) to be at heightened risk for serious and fatal injuries—often in their first days on the job.
As OSHA chief Dr. David Michaels notes: “Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.” The use of temporary workers has increased for economic reasons and also because of the changing workforce. However, this increases the “joint employment” situation, a legal concept wherein the traditional aspects of the employer-employee relationship are shared by two (or more) companies.
Most commonly, a staffing agency will pay the worker directly and contracts with the host employer as to where the workers will be sent and what they will be expected to do once they get there. Too often, training and personal protective equipment (PPE) responsibilities are not clarified. The OSHA directive points out that both the host employer and the staffing agency have responsibilities, and it mandates that OSHA inspectors must consider whether each employer has met its responsibilities. OSHA expects the host and the agency to work together to ensure that requirements are satisfied, which will require initial and follow-up communication. OSHA will review contractual documents between the parties to aid in determining who should be held legally liable … and it is quite possible for both companies to end up with redundant citations and penalties if workers are left unprotected!
While there is no one-size-fits-all policy, OSHA envisions that in many situations, the staffing agency would provide general safety and health training that can be used in varying occupational settings, while the host employer would provide site-specific training tailored to the particular workplace hazards at its location. More problematic may be some of the occupational health monitoring issues, such as annual audiometric testing of workers.
Because temps often work on short-term assignments, the staffing agency may be better suited to doing such medical surveillance. On the other hand, the host employer may be responsible for complying with standards involving machine guarding, and ensuring exposure reduction to noise or toxic chemicals.
Prior to embarking on a new project, both parties should jointly review task assignments and job hazard analyses to best identify and eliminate potential dangers and to be responsive to the need for protections and training of workers. The staffing agency may wish to conduct its own inspection of the host’s worksite before dispatching individuals to the job.
Both parties must also understanding reporting/recording requirements if temp worker is injured or killed. Generally, if the host is providing direction and supervision to the worker, the injury/illness would go on the host’s OSHA 300/301 logs, but the agency should also be given information concerning the incident. Temporary workers have the same protections under Section 11(c) of the OSH Act with respect to whistleblower protections, and OSHA expects workers to receive training on their rights against retaliation for raising safety or health concerns or reporting injuries.
In short, both hosts and agencies are viewed by OSHA as having non-delegable duties concerning worker safety and health and more resources and guidance is forthcoming on topics including PPE, training, hazard communication, hearing conservation programs, heat stress, and powered industrial trucks. The latest guidance document can be found at: www.osha.gov/temp_workers/Policy_Background_on_the_Temporary_Worker_Initiative ■
About the Author Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, August 2014
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