In April 2013, OSHA rolled-out its Temporary Worker Initiative and declared that protecting temporary workers would become one of its top priorities. OSHA maintains that temporary employees are entitled to the same safety protections as other workers. No one would dispute that, but the question remains: Who is responsible—the staffing agency or the host employer—when a temporary worker is exposed to workplace hazards? The National Waste & Recycling Association (NW&RA) has made educating its members regarding this OSHA initiative a high priority because many of its members are reliant on temporary workers. Beginning in November 2014, the NW&RA is offering an on demand course on temporary worker safety.
Although OSHA has regulated the treatment of temporary workers for many years, its new focus on protecting temporary workers has been sparked by several concerns. Most prominent among them are the surge—and expected continued growth—of the temporary workforce, the nature of the work performed by temporary workers and recent fatalities among temporary workers. For purposes of the initiative, OSHA defines “temporary worker” to include only one who is working under a host employer/staffing agency employment structure.
OSHA’s stated goals for the Temporary Worker Initiative are to:
- Protect temporary workers from workplace hazards;
- Ensure staffing agencies and host employers understand their safety and health obligations; and
- Allow OSHA to gather information regarding hazards in the workplaces utilizing temporary workers.
To achieve these goals, OSHA has been producing compliance assistance materials, including fact sheets and webpages, conducting outreach to affected stakeholders and, of course, exercising its enforcement hammer. Specifically, OSHA directed its inspectors to explore the presence of temporary workers during every inspection they conduct, regardless of the purpose of the inspection or the nature of the employers’ business, and determine whether any temporary workers are exposed to volatile conditions.
From an enforcement standpoint, the list of most frequently cited violations at workplaces with temporary workers has a strong training focus, including:
- Hazards requiring lock-out/tag-out protections
- Fall protection
- Hazard communication
- Electrical hazards
- Powered industrial trucks
OSHA has issued interpretation letters and other guidance about which entity is responsible for certain OSHA safety requirements between temporary staffing agencies and host employers. The issues addressed in the guidance focus on injury and illness recordkeeping, training and chemical hazard communication. In each of these areas, OSHA’s enforcement philosophy begins with the premise that the staffing agency and host employer share responsibility for ensuring that training, hazard communication and recordkeeping requirements are fulfilled. The key consideration in determining which entity will be held accountable—in other words, cited for a violation—is generally about which entity controls the means and methods of the work that is being performed.
Due to the unique nature of the temporary worker, staffing agency and host employer working relationship as well as the current intense enforcement environment, staffing agencies and host employers should consider taking some or all of the following steps:
- The temporary staffing agency and the host employer should set out their respective safety-related responsibilities in their contract, to ensure there is clear understanding of each employer’s role.
- Both employers should conduct new hire/new project safety orientations.
- Both employers plus the temporary workers themselves should maintain open and effective communication to ensure that injuries and illnesses are promptly reported and reviewed, underlying hazards are corrected and concerns can be raised to the host and staffing agency before injuries occur.
- Both employers should perform a hazard assessment of the worksite to determine: (a) what conditions exist at the host employer’s worksite; (b) what hazards may be encountered; and (c) how best to ensure the temporary workers’ protection.
- Host employer should evaluate whether temporary workers may actually be treated by OSHA as the host’s direct employee, regardless of what label is attached to the worker, and assume full compliance responsibility if that is likely.
Eric J. Conn is a founding partner of Conn Maciel Carey and chairs the firm’s national OSHA Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law. He was a featured presenter at the NW&RA’s Healthcare Waste Institute meeting at WasteExpo 2014 and has presented at other NW&RA webinars on OSHA topics. Lindsay A. Smith is a lexology author with law firm Epstein Becker Green.