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OSHA Steps Up Temp Safety Efforts

With its recent memorandum, OSHA let employers know that excuses will not be tolerated when it comes to keeping temp workers safe through proper training.

Tuesday, May 28, 2013
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When the Occupational Safety and Health Administration announced its initiative to focus more on the safety and health of temporary workers, the message was clear: It's time to get more serious about keeping temp workers safe.

There is good reason for that. For one, OSHA has received a series of reports about temporary workers suffering fatal injuries -- many during their first days on a job -- and issued citations when the employer failed to provide adequate protections, including safety training. In addition, recent Bureau of Labor Statistics data from the Census of Fatal Occupational Injuries about workers killed on the job in 2011 showed that fatal work injuries involving temps/contractors accounted for 542 -- or 12 percent -- of the 4,693 fatal work injuries reported. Hispanic/Latino contractors accounted for 28 percent of fatal work injuries among temp contractors, well above their 16 percent share of the overall fatal work injury total for the year.

In late April, OHSA announced its initiative and also issued a memorandum that spelled out what it expects on the safety front from employers who use temp workers, also known as contingent, contractual, seasonal, freelance or "just-in-time" employees. Basically, temps are workers whose salaries are paid by a temporary help services agency that supplies them to employers looking to fill a temporary full- or part-time staffing need.

"On Workers' Memorial Day, we mourn the loss of the thousands of workers who die each year on the job from preventable hazards," said Assistant Secretary of Labor David Michaels. "Many of those killed and injured are temporary workers who often perform the most dangerous jobs, have limited English proficiency and are not receiving the training and protective measures required. Workers must be safe, whether they've been on the job for one day or for 25 years."

The accompanying OSHA memo says field inspectors need to make a "concerted effort using enforcement, outreach and training to assure that temporary workers are protected from workplace hazards."

Why now and what does it mean for employers? It means, experts say, that employers should never take shortcuts, inadvertent or not, when it comes to temp worker safety, which can happen when contracting with temp services providers.

"Although OSHA recently announced its new initiative to focus more on the safety and health of temporary workers during its inspections at worksites, it's been clear for years that host employers are responsible to ensure that they are in compliance with OSHA requirements for temporary workers whom they are supervising," says Atlanta-based Bill Principe, a partner in the OSHA practice group of Constangy, Brooks and Smith.

Principe adds that regardless of any assurances temporary agencies make about taking care of "the OSHA requirements" for the temporary workers being provided to a host employer, it is the host employer that ordinarily gets cited by OSHA if the agency finds OSHA requirements have not been met for the supervised temporary workers' working conditions.

For example, if a host employer is supervising the day-to-day activities of a temporary worker, then OSHA considers this temporary worker to be the "statutory employee" of the host, meaning that OSHA expects the host to treat the temporary worker as if the temporary worker were one of the host employer's own regular employees.

While the question of whether a host employer is supervising a temporary worker can sometimes be a difficult question to resolve, OSHA looks to whether the host is directing "the details, means, methods and processes by which the work is to be accomplished," Principe says. And more recently, OSHA has re-cast this definition of supervision as a determination of whether the host or the temporary service has "the greatest amount of control over the working conditions" of the temporary worker.

"If a host employer is determined to be supervising a temporary worker, then the host is responsible for ensuring, among other things, that the worker has been properly trained based on the OSHA standards that are applicable to the temporary worker's job duties," he says. Those include things such as hazard communication, personal protective equipment and powered industrial trucks. It also means that a worker wears the required personal protective equipment, and that if the worker incurs an OSHA recordable injury or illness, the case be recorded on the host employer's OSHA 300 Log.

"While the host employer is certainly free to rely on the temporary service to provide all of the required training and to provide the required PPE, it is the host's ultimate legal responsibility to ensure that these compliance requirements occur," he says.

Given OSHA's new enforcement initiatives, Principe recommends that proactive employers take a hard look at their contracts with the temporary service companies that are supplying them with workers and re-examine how the responsibilities for OSHA compliance are being accomplished. In addition to addressing the parties' respective compliance obligations under the terms of the contract, host employers should take a look at their own compliance activities on-site to ensure that the same compliance obligations expected of their own employees are also being applied to the temporary workers they are supervising.

The recent OSHA memo reveals new checks inspectors should make during worksite inspections, including determining whether any temporary workers are employed, whether the workers are exposed to conditions in violation of OSHA rules, and whether the workers received safety and health training "in a language and vocabulary they understand" (meaning they get clear, concise instruction and training, in their native language if need be).

OHSA's memo also says its inspectors should collect this information through record reviews and interviews, and if they do find temporary workers, the memo says they should "document the name of the temporary workers' staffing agency, the agency's location and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis, either by the host employer or the staffing agency)."

New York-based Michelle Benjamin, CEO and founder of Benjamin Enterprises, a workforce solutions company, and TalentREADY, a talent management provider, says that, as with many of the OSHA rules and regulations, creating detailed, up-to-date documentation is critical to proving that you are complying with the regulations.

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"In this case, that means records showing hire date, employee work status, completion of required job training and details of training programs need to be up-to-date, accurate and easily accessible," she says. On the flip side, agencies that provide temporary workers to companies should ensure that the employer is aware of this OSHA initiative and that they are in compliance.

Benjamin says HR and training departments already should be reviewing their current policies and procedures for temporary employees, so they can assess if there are gaps. In her mind, providing the training in a language understood by the employee will have the biggest impact to these departments since most in-house corporate training programs are developed in English.

"Many corporations may not have bi-lingual or multi-lingual capabilities in-house," she says. "Employers finding themselves in this situation have several options to address this issue."

For example, they can reach out to peer companies in their area that may have this expertise and partner with one of these companies to create the training and share the cost to minimize the financial impact. Or, employers can also outsource the training to an HR management and training company that has the required job skills experience and multi-lingual capabilities. Finally, they can reach out to their local community or technical colleges to see if they have programs in place that can be utilized.

Benjamin says the consequences for non-compliance are hefty fines and possible legal action, or in severe cases business closure. In addition to legal action initiated by the government, legal action can also be initiated by the temporary worker(s), the worker(s)'s family or even the temporary agency providing the workers. In the instance where there is a serious accident, the company can also be impacted by the reporting of the accident, the OSHA audit, and in turn how that affects their brand in the eye of consumers and potential employees.

"Employers need to ensure the safety of their entire workforce, even though this could increase the cost of current HR processes and training programs," she says. "That cost is minimal when compared to the potential costs of fines, litigation and the negative economic impact to the business for non-compliance."

 Jon Snare, a former Assistant Secretary of Labor for OSHA and currently a partner in Morgan, Lewis & Bockius' Chicago office, says the OSHA memo is part of a broader initiative to look at independent contractors, temporary labor and related issues, especially the issue of misclassification.

"There had been some new training for OSHA inspectors, but this is different because it has a real focus on temporary labor and specifically safety," Snare says.

For employers, he says it is critical not only that safety training follows the OSHA guidelines, but as other legal experts note, establishing responsibility for training on a particular job should never be left to chance.

"Like anything OSHA does, when they put forth a memo they are providing notice to the stakeholders that says, 'Here is what we are thinking,' " Snare says. "With the expanding use of temp labor that is happening, this is certainly a wake-up call for employers to make sure that when they are using temp workers they take the necessary steps on training and safety."

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