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Safety for Temporary Employees: Whose Job Is It?
 

By Scott Harris, Ph.D.  3/27/2013
 
 

According to the Bureau of Labor Statistics (BLS), in 2011 there were just over 2.8 million temporary workers in the U.S.—about 2.3 percent of the workforce that year.

“Temps” are classified by the BLS under Temporary Help Services.

In 2011, the total injury and illness rate for temp services was 1.9 per 100 equivalent full-time workers. Compared to the private industry rate of 3.5 that makes temp services look pretty safe, right? The problem is that those injury rates don’t tell the whole story, and part of the reason is that we don’t really know where all of the temps’ injuries and illnesses are being recorded, if they get recorded at all.

Responsibility for recording injuries to temporary workers has been long-examined and clearly settled, at least on paper: 29 CFR 1904.31 requires recording of injuries on the Occupational Safety and Health Administration (OSHA) 300 Log for all employees including “recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis.”

Who is the temp actually working for while at your site? In most cases, the “host” employer is paying the service that provided the workers, so the temp draws a check from the temp service, not the worksite. Many employers mistakenly—or conveniently—conclude that since the temp is technically being paid by someone else, the temp works for someone else or is a contractor.

This is not so for OSHA purposes.

Employees are not defined by OSHA based on who pays them. What matters is whether there is an employer-employee relationship between the parties. Criteria OSHA uses to determine that relationship include:

  • The nature and degree of control the hiring party asserts over the manner in which the work is done.
  • The degree of skill and independent judgment the temporary worker is expected to apply.
  • The extent to which the services provided are an integral part of the employer’s business.
  • The right of the employer to assign new tasks to the worker.
  • Control over when the work is performed and how long it takes.

So if you have temporary workers in your plant and you are telling them how, when and where to do their job and the work they do is integral to your business, under OSHA they are your employees. If they get hurt or need training, personal protective equipment, hearing exams, medical surveillance or air monitoring, they must receive the same treatment as your regular employees.

You can’t keep two sets of 300 Logs. You can’t tell the temp service to keep its own 300 Log. You can’t provide protective equipment for your employees and charge your temps for it or make them provide their own. You can’t deny temps material safety data sheet information or copies of air sampling results. Over the years I’ve seen all of this and much worse.

Training may be the most commonly violated requirement of all. Every OSHA standard that requires training requires the training before an employee is exposed to the hazard. The problem for temporary workers is the often short notice and transient nature of many of the jobs. Finding a temp who has documented training on hazardous waste operations and emergency response awareness, hazard communication, personal protective equipment, forklift operation, and hearing conservation is certainly a logistical challenge. However, it does not change the requirement for all of this and more to be in place before workers are exposed to workplace hazards.

This issue is not limited to traditional manufacturing sites. This applies to any place covered by the Occupational Safety and Health Act.

An e-mail I received from a health care facility illustrates the point.

It read: “I need help finding where OSHA (or other regulatory body) says that we need to do initial evaluation on our nonemployees that get sharps injuries. Specifically, the residents that work/rotate, the nursing students, the nonemployed docs that are here (especially surgeons), etc. Can anyone put their finger on it?”

The question the writer should have been asking is whether these “nonemployees” are really nonemployees. In fact, they are almost certainly employees under the relationship test. Even the nursing students. One test of being a student and not an employee is whether the host providing the training derives “immediate advantage from the activities of the trainees or students, and on occasion his operations may actually be impeded.” Does anyone think that nursing students are providing no advantage to the host facility and are not on occasion impeding the operation? The good news is that realizing that most or all of these people are employees makes the bloodborne pathogens question easy: Yes, report their needlestick injuries on the needlestick log and evaluate them for disease exposure. Would you really want to justify not doing that by pretending they don’t work there?

Scott Harris, Ph.D., is an occupational health & risk management consultant with UL, an advisory member of the American Society of Safety Engineers Healthcare Practice Specialty and a course director at the University of North Carolina—Chapel Hill Occupational Safety and Health Education and Research Center.

Republished with permission. © 2013 UL. All rights reserved.

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