An employer’s responsibility toward temporary workers

April 29th marks the one-year anniversary of OSHA’s Temporary Workers Initiative, which was launched to increase focus on the safety of temporary workers and ensure their protection from workplace hazards. The initiative was established in response to a series of reports about temporary workers suffering fatal injuries on the job – often in their first few days at work.

Indeed, the last two years have seen a spate of tragic, high-profile cases of temporary workers fatalities: Day Davis, 21, was crushed by a machine just 90 minutes into his first day at a Bacardi bottling plant. Father of three, Samir Storey, 39, died of hydrogen sulfide asphyxiation when he was trapped in a tank he was cleaning. And Mark Jefferson, 47, died of heat stroke on his first day on the job after collecting garbage for nine hours during a heat wave.

These devastating stories aren’t isolated incidents. The US Department of Labor reports that in 2011, 12% of all workplace fatalities were contractor employees. And temps fare even worse when it comes to suffering injuries in the workplace.

According a 2013 analysis by ProPublica, temporary workers are significantly more likely to be seriously injured at the workplace than permanent workers. This holds especially true for blue-collar temps in high-risk industries such as construction, manufacturing and warehousing. These workers are more likely to suffer serious injuries such as lacerations, fractures, dislocations, and amputations.

How to protect the safety of your temporary workers

Since the start of the Temporary Workers’ Initiative, OSHA has been putting great effort into reducing the number of such injuries both by conducting a greater number of inspections of workplaces with temporary workers, and by clarifying employers’ responsibilities toward them.

Many of these clarifications were set forth in OSHA’s April 29, 2013 memo launching the Temporary Workers Initiative, while others appeared in an OSHA bulletin, published in March 2014. If you have temporary workers at your worksite, here are the basics of what you need to know: 

You are responsible for your temp worker’s health and safety. Host employers of temp workers (those that hire a temp worker from a staffing agency)  have often tried to duck responsibility for temporary workers by arguing that the staffing agency that supplied them are the workers’ true employers and thus primarily responsible for their health and safety. OSHA has now made clear that the host employer and staffing agency share joint responsibility for the health and safety of the worker.

"Host employers need to treat temporary workers as they treat existing employees. Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee's safety and health. It is essential that both employers comply with all relevant OSHA requirements,” said David Michaels, PhD, MPH, Assistant Secretary for Labor of Occupational Safety and Health.

To avoid misunderstandings or confusion, OSHA encourages host employers and staffing agencies to set out their respective responsibilities for compliance with OSHA standards in their contract.

You must provide proper training. Training is the key to keeping both permanent and temporary employees safe. Yet according to the ProPublica analysis of OSHA records, host employers are less likely to devote resources to training temporary workers. This may be because employers view spending money on temporary workers as not worth the investment, or because they believe that the staffing agency should be responsible for training.

OSHA now states that the host employer and the staffing agency could both be held responsible if temp workers do not receive adequate training. OSHA suggests that in determining who is responsible for training, the joint employers should look to “the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards.”  

For example, while the staffing agency might be in the best position to provide general health and safety training, the host employer is likely in the best position to provide training on the use of the specific machines and safety procedures that will be relevant to the worker. Host employers should note that OSHA requires training to take place in a language and with a vocabulary that the temp worker can understand.

You must provide adequate personal protective equipment. OSHA’s April 29th memo notes that recent inspections of certain worksites have revealed that some temporary workers were neither trained nor given proper personal protective equipment (PPE), even when working with hazardous materials.

Not providing PPE to temp workers may save time and dollars, but the risk it brings to both the temp worker and the company isn’t worth it. More to the point, OSHA clearly emphasizes that temporary workers are entitled to the same treatment and protections as permanent workers – this includes providing temp workers with the same PPE that permanent employees are given.

You must keep proper records of injuries. Keeping track of injured and illnesses is key to identifying hazards and potential hazards in the workplace. But host employers and staffing agencies often bicker about who is responsible for recording these injuries on the OSHA-300 log. Last month,OSHA issued a new educational bulletin that clarifies the issue.

The bulletin explains that the employer who supervises a temp worker on a day-to-day basis, controls conditions presenting potential hazards, and directs the workers’ activities around those hazards is the one who is responsible for recordkeeping of injuries. In most circumstances, OSHA notes, the host employer will be the one to have such supervisory responsibility and will usually be the one responsible for recordkeeping.

This does not absolve the staffing agency of responsibility, however. Staffing agencies must inquire into the conditions of their workers’ assigned workplaces, determine what hazardous conditions may exist, determine how to best ensure protection for temporary workers. In addition, once the temp worker has been placed, staffing agencies have an obligation to verify that the host employer has fulfilled its responsibilities for a safe workplace.