While it’s unclear whether the statistics have changed, or whether the Occupational Safety and Health Administration (OSHA) is now looking more closely at the numbers, statistics reveal that temporary workers are being injured at a rate far too high for OSHA’s liking. Of course, neither the workers nor their employers are thrilled with this trend either. First and foremost, the safety of workers is paramount. But, having injured workers affects the workplace in many ways, from morale to the bottom line. Beginning in April 2013, OSHA began taking a renewed look at the way temporary workers are managed in the workplace, and reevaluating enforcement actions when such workers are injured on the job.
On April 29, 2013, OSHA announced its Temporary Worker Initiative (TWI). The TWI’s primary goals include increasing awareness among employers and OSHA inspectors of the exposure of temporary workers to hazards, ensuring that workers are trained, improving the training such workers receive, and ensuring that workers understand the training. Recent statistics have shown that non-English-speaking temporary workers are being injured at a rate far higher than their percentage representation in the workplace. The clear implication is that they do not understand the safety instructions as given and/or that employers are not making the effort to ensure understanding or are assuming that someone else has taken care of training needs. Of course, as with many OSHA initiatives, enforcement will likely increase as this issue is spotlighted. But, who is responsible for the safety of temporary workers?
For purposes of the TWI, OSHA defines a temporary worker as one who is hired and paid by a staffing agency, and supplied to a host employer to perform work on a temporary basis. OSHA studies have shown that such “new workers” may spend time at numerous host employers in the course of a year, changing industries, job duties, etc., and that the training required for each job may be poorly performed – if performed at all – due in part to confusion between the staffing agency and the host employer about who has what responsibilities under OSHA. OSHA aims to clarify such responsibilities through the TWI.
The short answer is that OSHA considers the staffing agency and the host employer to be “joint employers” of the temporary worker, and that both parties have responsibility for training and ensuring the safety of temporary workers. However, in conducting an investigation, OSHA will attempt to determine the most appropriate individual roles and responsibilities of the two employers. For example, OSHA might conclude that it is the responsibility of the staffing agency to train a temporary worker on generally applicable safety requirements, and the responsibility of the host employer to train on the specific requirements of the job. On the other hand, if a temporary worker is used only in a single industry or is frequently assigned to perform only a narrow set of tasks, it may fall to the staffing agency to provide more detailed training. Such evaluations by the agency will be on a case-by-case basis, and will be very fact-specific. Employers, especially host employers who are actually assigning tasks to temporary workers, should take all steps necessary to ensure that proper training has been administered and that proper safety equipment is provided. The best place to start may be in communicating early with the staffing agency so that each party understands and agrees on who will do what.
Something often overlooked by employers is the contractual allocation of responsibility for the training and safety of workers. While simple reliance on the “boilerplate” language on the back of many contracts will not relieve an employer of OSHA liability, it will be a factor that OSHA considers in assessing enforcement action. If one party has clearly agreed to provide training and to ensure the safety of another party’s employee, then after reviewing the facts, OSHA may honor such an agreement. It is always prudent to read the proverbial “fine print” that is present on many pre-printed or form contracts, but in the case of worker safety, it may be necessary to negotiate adjustments to such language – or, at a minimum, to know what it says.
OSHA’s focus on more than one employer is not new. For many years, OSHA has had in place and regularly applied what is known as the Multi-Employer Citation Policy (Policy). The Policy has long provided OSHA with a tool to issue identical, or near-identical citations to more than one “employer.” Safety regulation responsibility is generally imposed only between an employer and its employees. Under the Policy, however, OSHA has created several classes of “fictional employers” (in the sense of a legal fiction) for purposes of taking enforcement action against several parties following a single incident when OSHA believes that liability is coextensive or overlapping.1 The Policy is often associated with construction sites, where there may be a site owner, a general contractor, subcontractors, etc., each with some measure of responsibility for worker safety. The TWI is, in a way, a supplement to this existing authority.
The TWI is not a change in law, but is a directive to OSHA inspectors to refocus their efforts, and to more closely scrutinize workers and workplaces to better identify and protect temporary workers. As such, it is already in place. However, OSHA is now issuing a series of guidance documents to help the regulated community understand OSHA’s increased focus on temporary workers, as well as their own responsibilities when using temporary workers. For example, in the first of such bulletins, OSHA clarifies that while both the staffing agency and the host employer may have joint responsibility for worker training, only one of them will be responsible for recording injuries or illnesses in the injury and illness log.2
Twenty-five states and two territories operate their own state-run versions of the Occupational Safety and Health Act, which administer their own worker safety regulations. Many states simply incorporate the federal regulations by reference, but some do not. While state regulations cannot be inconsistent with federal regulations, they can be stricter. You should determine whether state or federal OSHA applies in your state. If you have questions regarding this new Policy or any other aspect of OSHA’s applicability to your workplace, please contact the author.