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OSHA Reiterates Enforcement Policy on Temporary Workers
 

By Roy Maurer  8/6/2014
 

The Occupational Safety and Health Administration (OSHA) sent a reminder July 15, 2014, to its regional administrators emphasizing the agency’s focus on preventing occupational injuries and illnesses among temporary workers. The memo explains the purpose of the agency’s Temporary Worker Initiative, defines temporary workers, identifies employer responsibilities and sets out when to open an inspection.

“Too often in recent months, it has been OSHA’s sad duty to investigate fatalities and injuries involving temporary workers who were not given the necessary safety and health protections required under the act,” wrote Thomas Galassi, director of enforcement programs at OSHA. “We are attempting to ensure that all employers, whether host or staffing agency, individually and collaboratively, fulfill their duties to their workers, so that at the end of the shift of every workday, all temporary workers in the United States can return home safely.”

For OSHA’s purpose, temporary workers are defined as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.” Galassi wrote that OSHA will consider host employers and staffing agencies joint employers, a legal concept recognizing that, “in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance with statutory and regulatory requirements.” For example, the staffing agency often controls a worker’s paycheck and selects the host-employer location where the worker will be sent. The host employer assigns the particular work to be done each day and controls operations on the worksite.

Identifying Employer Responsibilities

The memo states that OSHA compliance officers should review any written contract(s) between the staffing agency and the host employer to determine if responsibilities for employee safety and health have been addressed. “The extent of the obligations each employer has will vary depending on workplace conditions and may be clarified by their agreement or contract. The staffing agency or the host may be particularly well-suited to ensure compliance with a particular requirement, and may assume primary responsibility for it,” it reads. For example, staffing agencies might provide general safety and health training applicable to many different occupational settings, while host employers provide specific training tailored to the particular hazards at their workplaces, Galassi wrote. If the staffing agency has a long-term, continuing relationship with the temporary worker, it may be best positioned to comply with requirements such as audiometric testing or medical surveillance. The host employer, in turn, would be the primary party responsible for complying with workplace-specific standards relating to machine guarding, exposure to noise or toxic substances, and other workplace-specific safety and health requirements.

“Although the host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements, the staffing agency also has a duty,” Galassi said. “Staffing agencies must ensure they are not sending workers to workplaces with hazards from which they are not protected or on which they have not been trained.”

Keep Communication Open

OSHA advises that prior to entering into a joint-employer relationship, both parties should jointly review the job assignments and job hazard analyses in order to identify and eliminate potential safety and health risks.

The agency also instructs both employers to communicate with each other when a worker is injured, and try to determine what measures can be implemented to prevent future injuries. “Communication between the host employer and staffing agency is of fundamental importance in this regard,” the memo reads. For example, if a temporary worker is injured at a host-employer worksite, the host employer should inform the staffing agency of the injury, and the staffing agency, in turn, should follow up on preventive actions taken. Similarly, if a staffing agency learns of a temporary worker’s injury, perhaps through the filing of a workers’ compensation claim, the staffing agency should inform the host employer to help ensure that preventive measures are taken before additional workers are injured, OSHA said.

Galassi summarized that OSHA will consider issuing citations to either or both employers, depending on the specific facts of the case, when an investigation reveals a temporary worker was exposed to a hazardous condition. “This will require Area Offices to make a careful assessment of whether both employers have fulfilled their respective compliance responsibilities in each individual case. These inspections are considered high priority.”

When to Open an Inspection with the Staffing Agency

Inspection officers should make inquiries into the staffing agency’s actual or constructive knowledge of the worksite’s hazards when a temporary worker is exposed to a violation, Galassi wrote. Officers are instructed to review factors such as the terms of the staffing agency-host employer contract, the interaction and communication between the staffing agency and the host employer, the staffing agency’s contact with its temporary workers, whether those workers have had any complaints or concerns and whether they have made those concerns known to the employers.

More Compliance Assistance to Come

OSHA is preparing a series of bulletins on various aspects of the Temporary Worker Initiative. The first bulletin, published in March 2014, addressed record-keeping requirements. The second bulletin will address whistle-blower protection rights. Other topics may include personal protective equipment, training, hazard communication, duty-to-inquire, hearing conservation programs, exposures to heat, and powered industrial trucks. A compliance directive is also in the development stage, according to OSHA.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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