In recent months OSHA and NIOSH have begun cracking down on organizations for their historically lax treatment of temporary workers in regard to safety. The reasoning for this increased attention, along with subsequent stiff fines is twofold. According to Dave Michaels, OSHA’s Assistant Secretary of Labor, there are 23% more temporary workers in the job market than there were before the recession. This in combination with the fact that temporary workers are 3-4 times more likely to be injured or killed on the job has contributed to a rash of recent incidents. OSHA’s Temporary Worker Initiative (TWI), officially announced in April 2013, affects all industries but in particular manufacturing and construction, which traditionally employ the most temporary workers and contractors. This increased focus can have a significant impact both on brand and financial bottom lines.
Who is responsible?
With the majority of temporary workers coming from staffing agencies it is sometimes unclear where the responsibility for the temporary worker lies. In general, OSHA will consider the staffing agency and host employer to be “joint employers” of the worker in this situation. Joint employment is 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, in turn, assigns the particular work to be done each day and controls operations in the physical workplace.
As joint employers, both the host employer and the staffing agency have responsibilities for protecting the safety and health of the temporary worker under the OSH Act. In assessing compliance in any inspection where temporary workers are encountered, compliance officers must consider whether each employer has met its responsibility.
In the eyes of OSHA both host employers and staffing agencies are jointly responsible to consider the hazards it is in a position to prevent and correct, while doing their best to comply with OSHA standards.
How can you safeguard your employees and your business?
According to OSHA the key to achieving this is communication between the agency and the host employer to ensure that the necessary protections are provided. There are two main areas that employers can focus on to protect both their workers and themselves; injury reporting and training management.
Injury Reporting: Even with all the proper safeguards in place and all the workplace hazards identified injuries are a fact of life. What OSHA is striving for with the TWI is a clear understanding of how injuries are reported and who reports them. Injuries and illnesses should be recorded on only one employer’s injury and illness log. In most cases the host employer is the one responsible for recording the injuries and illnesses of temporary workers. Recordkeeping responsibility is determined by supervisors if they supervise the temporary works on a day-to-day basis (29 CFR 1904.31(a)). The staffing agency and host employer must set up a way for employees to report work-related injuries and illnesses promptly and tell each employee how to report work-related injuries and illnesses.
Training Management: All too often temporary workers are left with subpar training on both the equipment they are working with and the processes they are participating in. OSHA inspectors will be paying extra attention to the training provided to temporary workers to ensure it is at a comparable level with regular staff. Employers must be able to provide proof in the form of documentation (physical or electronic) that all employees (regular and temporary) have been adequately trained for the work they are asked to perform.
The bottom line, according to OSHA, is that host employers must treat temporary workers like any other workers in terms of training and safety and health protections. This initiative will be increasingly enforced and in the cases where appropriate systems have not been put into place met with heavy fines. To help businesses protect both their workers and themselves it is highly recommended to emphasis good communication, implement strong injury reporting and institute diligent management of training throughout your organization.
Additional Resources:
- OSHA’s Protecting Temporary Workers page: https://www.osha.gov/temp_workers/
- TWI Bulletin No. 1: Injury and Illness Recordkeeping Requirements – https://www.osha.gov/temp_workers/OSHA_TWI_Bulletin.pdf
