This past year, OSHA launched an enforcement initiative focused on improving safety for temporary workers. The initiative references an OSHA memorandum (the April Memo) from former Deputy Assistant Secretary Richard Fairfax, which serves as the initiative’s main enforcement mechanism, directing inspectors to identify temporary workers and evaluate whether they are exposed to any safety hazards.
As expected, we have seen a correlated rise in inspections that examine how host employers treat temporary workers, especially with regard to training. Fortunately, an April 2013 Memo from former Deputy Assistant Secretary Richard Fairfax and OSHA’s September 5, 2013 Update provide the blueprint for how inspectors will conduct their investigations. Moreover, OSHA’s webpage on the topic (Protecting Temporary Employees) supplements the April Memo by detailing what in OSHA’s view are the host employer’s responsibilities for temporary workers. Taken together, these documents provide a game plan so that employers ensure employees are properly trained and can successfully demonstrate compliance and avoid citations.
The April Memo: What Inspectors Are Looking For
The April Memo defines “temporary workers” as “those supplied to a host supplier and paid by a staffing agency,” whether their job is temporary or not.
Guided by this definition, the April Memo instructs inspectors to:
- Confirm “whether any employees are temporary workers and whether any of the identified temporary employees are exposed to a violative condition.”
- “[A]ssess- using records review and interviews - whether those workers have in fact received required training in a language and vocabulary they understand.”
- Pay particular attention to situations where temporary workers “were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections ….”
- “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).”
This last point is important because it determines who bears responsibility for maintaining injury/illness records for the temporary workers – the host employer or the staffing agency. The relevant record-keeping standard (1904.31(a)) requires the host to “record the 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.”
OSHA’s Protecting Temporary Employees Webpage: Joint Responsibility
OSHA’s recurring theme for protecting temporary workers is joint responsibility between the host employer and staffing agency. As the webpage explains, because both employers “share control over the worker”, they are “jointly responsible for maintaining a safe work environment for temporary workers” and complying with all OSHA requirements, including safety training and hazard communication. In OSHA’s view, this means the agency can hold both employers responsible for any violative condition and issue citations.
With this in mind, the webpage recommends that host employers take the following actions with respect to temporary workers:
- Communicate with the staffing agency at the outset of the engagement to “set out their respective responsibilities for compliance with applicable OSHA standards....”
- Evaluate the hazards to temporary workers because the host is in a position to prevent and correct, then act accordingly. For example, host employers are usually in a better position to provide safety training on a hazard/piece of equipment that is unique to its worksite.
The webpage also lays out the staffing agencies’ respective responsibilities:
- “Staffing agencies have a duty to inquire into the conditions of their workers' assigned workplaces. They must ensure that they are sending workers to a safe workplace.”
- Staffing agencies are also required to audit the host employer’s worksite to “determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers.”
Regardless of the staffing agencies’ responsibilities, OSHA’s bottom line for host employers is they “must treat temporary workers like any other workers in terms of training and safety and health protections.”
Conclusion: Putting It All Together
These pieces of administrative guidance create an opportunity for employers to stay ahead of OSHA on future inspections. The following key takeaways from each should put employers in a position to successfully demonstrate compliance and ensure employees are properly trained:
- Audit/Evaluate the Worksite Hazards – Review the anticipated scope of the temporary workers’ tasks and determine if they will be exposed to any potential safety hazards that are unique to the worksite. This will help determine which employer (host or staffing agency) will be in a better position to address them.
- Good Communication - At the outset of any engagement, communicate with the staffing agency to determine the respective safety responsibilities for temporary workers (e.g., training), then document them in the parties’ contract.
- Injury/Illness Records - Confirm which employer will supervise the temporary workers on a day-to-day basis. This will determine who bears responsibility for maintaining their injury/illness records.
- Confirm Adequate Safety Training/Tools – Depending on the hazards or equipment used at the work site, confirm that all temporary workers have received the necessary safety tools, PPE and training “in a language and vocabulary they understand.” In OSHA’s view, temporary workers should receive the exact same training as hourly employees. The training should also be documented and readily available should an inspector request it.
For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.