Bureau of Labor Statistics Contractors Temporary workers Construction
WHY ARE INJURIES INCREASING?

Safety for temporary workers

The temp workforce is growing – and so is the number of injuries

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Confusion

No matter the industry or the type of employee – be it a nursing intern at a hospital or a temporary worker at a manufacturing facility – employers must protect workers from hazards, Harris said.

So whose responsibility is it to protect temporary workers? Technically, they are employees of one employer – the staffing agency – yet they perform duties for another employer: the host.

Harris has firsthand experience with this. At one plant several years ago, he observed temporary workers not being treated the same as permanent employees. The temps were not provided with personal protective equipment, and the plant’s human resources department was not recording injuries and illnesses suffered by temporary workers on the facility’s 300 log.

“It was kind of like it was a separate workforce,” Harris said. He looked into the issue and confirmed that the plant’s actions were not appropriate, and steps were taken to fix the situation. However, he claims the issue of temporary workers being treated differently is still common across many industries.

Who actually pays the temporary worker has nothing to do with who is responsible for that worker’s safety and training. Instead, the responsibility lies with who is supervising the worker.

In most cases, that will be the host employer, according to Dwyer. A host employer’s responsibility to train temporary workers is no different than the responsibility to train permanent workers, he added.

Who records?

If a temporary worker is injured on the job, who is responsible for recording that injury – the staffing firm or the host employer?

For starters, injuries cannot be double-counted, notes Scott Harris, director of EHS Advisory Services for Underwriters Laboratory, a consulting and certification company based in Northbrook, IL. OSHA wants either the staffing agency or host employer to record the injury – not both.

“They want that injury only at one location, and it needs to be at the location of the employer where the injury occurred,” Harris said.

An OSHA bulletin specifies that the supervisor who oversees the worker on a day-to-day basis is responsible for recording the injury. In most cases, OSHA said, this will fall on the host employer.

The staffing agency will be responsible for recording the injury in certain instances. If the staffing agency has a supervisor directing the temporary workers on their job, then the staffing agency is likely responsible for filling out the OSHA injury form, said Stephen Dwyer, general counsel for the Alexandria, VA-based American Staffing Association.

On the other hand, some worksites have staffing agency personnel onsite performing administrative work, such as handling timesheets. In this scenario, in which the staffing firm employee does not tell the temporary worker what to do, the firm would not be responsible for completing the injury form; it would be up to the host employer to record the injury.

Communication and partnerships

Staffing firms are not excluded from the responsibility of ensuring the safety of workers once they report to a host employer.

If a staffing firm has knowledge that its client has not provided the required training, the firm has an obligation to not assign workers to a potentially unsafe environment, Dwyer said.

As many stakeholders told Safety+Health, the staffing firm and host employer have a shared responsibility to ensure a temporary worker’s safety on the job. This requires the staffing agency to understand what work will be done at the host employer’s worksite.

“Understanding the nature of the work and worksite conditions are a critical element of protecting temporary workers and ensuring their safety,” said Janet Van Liere, member services coordinator for the Brookline, MA-based Alternative Staffing Alliance. To assist its members – staffing agencies – the alliance provides sample health and safety inspection checklists to help assess customers’ worksites.

The staffing firm should create safety awareness among employees and provide general safety training, Dwyer said. Depending on the job task or work atmosphere, temporary workers may need more specific safety training, and the staffing firm and host employer should communicate what training will be provided and by whom, he said.

OSHA is allowed to cite staffing firms for situations in which they knowingly assign workers to dangerous environments with no training. But Harris stressed that although even OSHA has repeated the refrain of a cooperative effort in ensuring worker safety, the responsibility for doing so likely falls upon the host employer.

Temp or contractor?

Although some individuals may use the terms “temporary worker” and “independent contractor” interchangeably, an important distinction exists between the two.

At an OSHA National Advisory Committee on Occupational Safety and Health meeting in February, a committee workgroup raised questions about the definition of temporary workers versus contract workers.

Historically, temporary workers have been individuals a host employer receives from a staffing agency, according to Peter Dooley, senior consultant with the National Council for Occupational Safety and Health. Independent contractors, on the other hand, are found mostly in the construction industry, in which specialized contractors are brought in to perform certain types of work.

But lately the term “independent contractor” is being misapplied to situations more closely resembling employer-employee relationships, Dooley said. Independent contractors are given a job without explicit orders on how to carry out the task. Some employers apply the independent contractor term to get out of certain obligations they would otherwise be responsible for with temporary workers, according to Dooley.

“Employers try to basically step away from the responsibility of health and safety, with the claim this person is an independent contractor,” he said.

If someone is telling another person what to do, it is an employer-employee relationship. Although several legal aspects are involved, Dooley stressed that – from a safety and health perspective – any time a supervisory relationship is in a workplace, a responsible party must provide a safety and health program.

Future

The temporary worker safety initiative OSHA launched last year has received wide praise from both the temporary worker staffing industry and worker safety advocates.

An April 2013 memorandum from Thomas Galassi, director of OSHA’s Directorate of Enforcement Programs, states that during inspections at worksites, OSHA compliance officers are to identify any temporary workers and determine whether those workers received required training in a manner they understand.

The memo also instructs inspectors to obtain the name of the staffing agency providing workers to the host employer, and determine the supervising structure for the temporary workers. OSHA is compiling all of this information, and promoting best practices and issuing guidelines for staffing agencies and host employers.

“It’s pretty unprecedented,” Harris said of OSHA’s initiative.

Asked if OSHA should pursue new regulations regarding temporary workers, Dwyer said the agency’s current focus on education and enforcement is the best route, and the current rules and regulations are adequate.

However, he said it is important to have data that shows whether or not an injured worker was temporary. One possible solution is to add a line to the OSHA 300 log to specify the hiring status of an injured worker.

Some initiatives are being taken up on the state level. Several state legislatures have passed or are pursuing laws aimed at granting more rights to temporary workers or increasing penalties to employers.

For example, a bill signed into law two years ago in Massachusetts requires staffing agencies to provide employees with basic information, including what their wage will be and what safety equipment they might need. And at press time, California was considering a bill that would make companies liable for safety violations committed by subcontractors and temp agencies.

Sample checklist

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