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The Occupational Safety and Health Administration (OSHA) has issued two new guidance documents relating to temporary workers—one on personal protective equipment and one on whistle-blower protection rights.
The bulletins are the newest additions in a series developed under the agency’s Temporary Worker Initiative. The initiative, launched in 2013, focuses on compliance with safety and health requirements when temporary workers are employed under the joint employment of a staffing agency and a host employer.
“The recurring theme of the bulletins emphasized by OSHA is the joint responsibility both employers assume for worker safety and health and the fact that neither the staffing agency nor the host employer is exempt from liability because the other failed to fulfill its responsibilities,” said Tressi Cordaro, a shareholder in the Washington, D.C., office of Jackson Lewis.
The bulletins are really geared toward host employers, explained David Michaels, assistant secretary of labor for occupational safety and health. “Staffing agencies recognize this is an important issue and have been very helpful. We’ve found that many host employers haven’t figured out that they are responsible for the safety and health of all workers working for them, including temporary workers,” Michaels said. Temporary workers must be provided the same level of protection by host employers as the host employers provide to their own employees, he said.
Personal Protective Equipment
The personal protective equipment (PPE) bulletin explains that as joint employers of temporary workers, both the host employer and the staffing agency are responsible for ensuring that adequate PPE and associated training is provided.
The host employer will usually have primary responsibility for selecting, providing and ensuring the use of adequate PPE because the host employer is more familiar with the workplace hazards that the temporary worker will encounter, generally controls the workplace hazards and the worker’s interaction with those hazards, and is usually better situated to perform the hazard assessment required for determining if PPE is necessary, according to the bulletin.
The staffing agency “must take reasonable steps” to ensure that the host employer conducts the appropriate hazard assessment and provides adequate PPE. To this end, OSHA recommends that the staffing agency become familiar with the hazards at the host employer’s worksite and maintain communication with its workers and the host employer.
Employers are also responsible for training each worker required to use PPE. The training must teach:
Both the host employer and the staffing agency are responsible for PPE training; once again, however, the host employer is often better situated to provide the training, according to OSHA.
The parties may agree to have the staffing agency supply some or all of the PPE and provide PPE training as long as the host employer ensures that the PPE is appropriate for the worker’s assigned tasks and that it is provided at no cost to the worker, OSHA said. Such an agreement should be made during the preplanning stage and documented in writing.
It is important to remember that in OSHA’s opinion, as joint employers, “both the staffing agency and the host employer are liable for workers’ safety and health regardless of which one assumed responsibility for providing and paying for adequate PPE and training,” Cordaro said.
The whistle-blower bulletin states that temporary workers have the same rights and protections as other workers under Section 11(c) of the Occupational Safety and Health Act when they report injuries or raise concerns about unsafe work conditions to their employer, OSHA or other government agencies.
Both the staffing agency and the host employer are forbidden from retaliating against workers for participating in the protected activity of reporting injuries and concerns.
For example, if the host employer asks the staffing agency to remove the worker from the host’s worksite after the worker raises a safety concern, and the staffing agency complies, both employers may be investigated to determine if either one, or both, retaliated against the employee. Staffing agencies and host employers should promptly report to each other any raised concerns by temporary workers and should appropriately investigate and respond to such activity, OSHA said.
Temporary workers may file complaints of retaliation with OSHA within 30 days against either the staffing agency or the host employer or, in some circumstances, against both, Cordaro said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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