WHY ARE INJURIES INCREASING?
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Safety for temporary workers

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

June 22, 2014

Key points

  • Temporary workers face higher risks on the job due to a lack of training and a perception they could be seen as “disposable,” one expert says.
  • Communication and partnerships between staffing agencies and host employers are key to ensuring a safe work environment for temporary workers, stakeholders say.
  • A recent initiative by OSHA, prompted by reports of increased injuries to temporary workers, has the support of stakeholder groups.

It was Adrien Zamora’s first day on the job at a New York City construction site. The 28-year-old temporary worker was directed to perform restoration work on the façade of an 11-story building.

At the end of his workday in May 2012, Zamora slipped and­­ fell 40 feet onto a construction shed. He landed head-first and was killed, leaving behind a wife and two daughters.

Zamora was not provided with fall protection gear and had not received training on fall prevention.

These circumstances – a new workplace in a hazardous environment with little to no safety training or protective gear – are all too common for many temporary workers, some advocates allege.

“No worker’s first day on the job should be their last day of their life,” OSHA administrator David Michaels said in a November 2013 Bay Area Insider op-ed about the life-threatening hazards temporary workers face on the job.

The issue of temporary workers’ health and safety is not new. However, the growing size of the temporary work­­force, recent news reports of temporary workers dying on the first few days on the job and indications of increased injuries led OSHA to launch an initiative in April 2013 to better protect temporary workers.

“This is a huge problem,” said Peter Dooley, a senior consultant with the National Council for Occupational Safety and Health. However, determining the scope of the problem poses a challenge.

A growing group

The number of temporary workers in the United States varies depending on the source. In February 2005, contingent workers – defined as those who do not expect their jobs to last or reported their jobs as temporary – made up 4 percent of the total workforce, or about 5.7 million people, according to a Bureau of Labor Statistics report.

Workers that were identified as “temporary-help agency workers” accounted for about 1.2 million people in February 2005 – a number that more than doubled by 2013, when BLS reported 2.8 million temporary-help agency workers.

However, these figures may not include all temporary workers. An annual survey from consulting group MBO Partners found that the number of independent workers – which includes temporary workers, the self-employed and others – increased to 17 million in 2012 from 16 million in 2011. And the Alexandria, VA-based American Staffing Association says at least 11 million people are hired every year as temporary or contract workers.

Regardless of the metrics, stakeholders agree that the number of temporary workers is growing. Several reasons have been offered to explain the growth, but the simplest and most broadly accepted is economics.

“In theory, these workers are cheaper than a full-time worker,” said Scott Harris, director of EHS Advisory Services for Underwriters Laboratory, a consulting and certification company based in Northbrook, IL. “The host employer is not providing the benefits and overhead that a full-time worker would get.”

Greater risk

Data on the injury rates of temporary workers is not available outside of a few studies, according to Stephen Dwyer, general counsel for the American Staffing Association. This may have a lot to do with OSHA’s 300 log. When employers record an injury, they are not required to identify on the log whether the injured worker is temporary or permanent.

As Harris put it, no calculation exists for a temporary-worker injury rate. “We don’t have a number on it, so it’s not well-understood,” he said.

Several stakeholders believe temporary workers may face a greater risk of being injured on the job. According to Javier Garcia Hernandez, a construction worker and trainer for the Philadelphia Area Project on Occupational Safety and Health, working conditions for temporary workers, as well as immigrant and construction workers, are very poor.

“Most of the time, employers don’t care about us. Most of the time, they’re worried about the bottom line,” Hernandez said during a press conference announcing the release of a National COSH study of preventable workplace hazards.

Dooley hesitated to generalize employers of non-permanent employees as Hernandez did. However, he said workplaces using temporary workers may pay less attention to safety and have less sophisticated safety and health programs. Any workplace lacking a good safety management system will experience problems, he added.

Harris said the transient nature of the temporary workforce further complicates matters for host employers, who invest time and money to train temp workers. “If that person comes in for, say, a day and turns around and walks out and never comes back, then all that’s wasted,” he said. “A lot of effort and money got spent on someone who’s just never going to come back.”

As a result, some employers may skip certain training under the belief that temporary workers will soon leave.

If the employer does not provide proper training, Harris warned, temporary workers may not take the necessary precautions because they lack knowledge of the hazards.

Dooley agrees. “You put a person who’s on the job for hours, days, weeks in that system, and they are at a high risk because they don’t know and they’re not as familiar with the operations,” he said.

Temporary workers also may be unaware of their legal right to decline work they believe is unsafe. Additionally, Harris suggested many temporary workers may be trying for full-time employment and, as such, may be less likely to speak up.

All of this – lack of training, lack of information and a new environment – creates what Dooley called a “recipe for disaster” for temporary workers.

Next: Responsibility for recording, sample staffing firm checklist



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