Safety of the Temporary Worker
The Occupational Safety and Health (OSH) Act passed in 1970 requires employers to provide a safe and healthy workplace for employees. Following the implementation of the OSH Act, one group of employees has grown significantly. These workers are often overlooked due to confusion about who is responsible for providing for their safety. This group is identified as the temporary worker. Temporary workers are workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis. According to the Occupational Safety and Health Administration (OSHA), the temporary workforce represents about two percent (17 million) of the entire non-farm U.S. workforce.
In general, OSHA considers the staffing agency and host employer to be “joint employers” of the temporary worker. 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 OSHA regulations.
To address the issue of who has what responsibility regarding the safety of temporary workers, OSHA launched the Temporary Worker Initiative (TWI) on April 29, 2013. The initiative increases OSHA’s focus on temporary workers. It serves as a resource and highlights the employers’ responsibilities (both the host employer and the staffing agency) to ensure these workers are protected from workplace hazards. The driving force behind promulgation of the TWI was in response to 2011 Bureau of Labor Statistics (BLS) data indicating that temporary workers were suffering fatal injuries during their first days on the job. In many cases, this was a result of inadequate training.
To ensure that there is clear understanding of each employer’s role in protecting employees, OSHA recommends that the staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in a contract. Establishing clear roles helps avoid confusion as to the employer’s obligations regardless of whether or not it’s the host employer or staffing agency. The roles and responsibilities are dependent on the specific facts of each case. Ultimately, staffing agencies and host employers share control over the worker and are jointly responsible for the worker’s safety and health. To ensure that necessary precautions are provided to the temporary workers, communication between the staffing agency and host employer is vital.
A key concept to help determine what roles the staffing agency or host employer should accept is to consider who is in the best position to prevent and correct a hazard. For example, the staffing agency may provide general safety and health training, while the host employer would provide specific training tailored to the particular workplace.
OSHA provides some key points to remember regarding roles and responsibilities:
- The key is communication between the staffing agency and the host employee to ensure that all applicable protections and OSHA rules are provided and enforced
- 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
- Ignorance of hazards is not an excuse
- Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at their client (host) site, what hazards may be encountered, and how best to ensure for their workers
- The staffing agency has the duty to inquire and verify that the host employer has fulfilled its responsibilities for a safe workplace
- Host employers must treat temporary workers like any other worker in terms of training and safety and health protections
Temporary workers have the same rights and protections under the OSH Act as regular employees. If during an OSHA inspection, OSHA determines that temporary workers were involved in a violation of an OSHA regulation they will consider issuing citations to either or both the host employer and/or staffing agency. The decision will be based on the specific facts of the case and what responsibilities/roles were communicated in the contract between the host employer and staffing agency. In the absence of a contract or communication, both the host employer and staffing agency would carry a shared responsibility likely leading to both being cited.
As stated earlier one of the purposes of the TWI is to serve as a resource for host employers and staffing agencies. Currently, the initiative has five supporting documents:
- Recommended Practices: Protecting Temporary Workers
This resource was developed by OSHA and the National Institute for Occupational Safety and Health (NIOSH). The document suggests recommended practices with respect to temporary worker training, inspection of worksites, injury tracking, prevention, reporting, and the delineation of the parties’ respective safety duties in staffing agency contracts with host employers. OSHA has stated that the information provided in this documents constitute guidance only and are not required.
- Policy Background on the Temporary Worker Initiative
Provides supporting information on the why the TWI was created.
- TWI Bulletin No. 1: Injury and Illness Recordkeeping Requirements
Addresses which party is responsible for recording temporary worker injuries on the OSHA 300 log.
- TWI Bulletin No. 2: Personal Protective Equipment
Addresses how to identify who is responsible for providing PPE pursuant to the PPE hazard conducted for each task the temporary worker will be performing, as well as training that is necessary.
- TWI Bulletin No. 3: Whistleblower Protection Rights
Addresses whistleblower protection rights in a temporary worker situation.
Temporary Worker Initiative, Occupational Safety and Health (OSHA), April 2013
Recommended Practices-Protecting Temporary Workers, Occupational Safety and Health (OSHA) publication number 3735 & National Institute for Occupational Safety and Health (NIOSH) publication number 2014-139, August 2014
Policy Background on the Temporary Worker Initiative, Occupational Safety and Health (OSHA), July 2014
Temporary Worker Initiative Bulletin No. 1: Injury and Illness Recordkeeping Requirements, Occupational Safety and Health (OSHA), 2014
Temporary Worker Initiative Bulletin No. 2: Personal Protective Equipment, Occupational Safety and Health (OSHA), 2015
Temporary Worker Initiative Bulletin No. 3: Whistleblower Protection Rights, Occupational Safety and Health (OSHA) 2015
Closing the Gap on Temporary Worker Safety, Professional Safety, June 2014
NSC Provides Recommendations on Safety of Temporary Workers, Safety & Health, February 2015
Find even more information you can use to help make informed decisions about the regulatory issues you face in your workplace every day. View all Quick Tips Technical Resources at www.grainger.com/quicktips.
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The information contained in this publication is intended for general information purposes only and is based on information available as of the initial date of publication. No representation is made that the information or references are complete or remain current. This publication is not a substitute for review of the current applicable government regulations and standards specific to your location and business activity, and should not be construed as legal advice or opinion. Readers with specific questions should refer to the applicable standards or consult with an attorney.
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