It’s becoming more and more common for companies to employ temporary workers from staffing agencies, especially at large worksites. Companies decide to use staffing agencies for many reasons, sometimes because doing so is cost-effective or helps cover periods of higher production.
One of the problems with this rising phenomenon is that when workers at a jobsite are employed by more than one business, it’s easy for safety and safety training to fall through the cracks. Employers may be uncertain about who is responsible for safety training or they may assume the other company took care of it.
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Assuming someone else will worry about safety can get your company into trouble, though, especially if an accident happens or if someone reports unsafe practices to OSHA. In 2013, OSHA launched an initiative to protect temporary workers, which provides guidance documents for employers and instructs OSHA field inspectors to pay close attention to the way safety is handled at sites employing temporary workers. This means if you employ temporary workers, especially in an industry where OSHA does many inspections, you’ll want to make sure your procedures for handling the safety of those workers are clear.
Who’s Responsible, You or the Staffing Agency?
This question causes a lot of confusion, and the answer from OSHA isn’t especially specific. In the majority of situations involving a host employer (the company hiring the temporary workers) and a staffing agency, safety responsibilities overlap. Consequently, OSHA recommends making the assignment of safety responsibilities part of your contract with a staffing agency. Duties should be spelled out so there’s no confusion. Plus, doing this will help prevent you from being left open to potential liability issues if an accident does happen.
OSHA gives some examples of the types of responsibilities that might fall to the host employer and to the staffing agency. Staffing agencies, OSHA says, could feasibly be responsible for providing basic health and safety training, as well as medical exams if the agency and the worker have a long-term relationship. A host employer could be responsible for hazards specific to the workplace such as toxic substance exposure or machine guarding.
In terms of training, as the host employer you must provide the same training you would provide to your own employees about how to stay safe when performing work tasks. New, temporary workers can’t just be sent to work without instructions about safety precautions.
OSHA also explains that staffing agencies should follow some basic best practices to keep their workers safe. They should survey all worksites and job tasks before sending workers to perform a job and they should provide information to the host employer about each worker’s training.
Who Should Record Injuries and Illnesses?
When an accident happens involving a temporary worker, you need to know who’s responsible for recording it in their injury and illness log. The answer to this question is more straightforward than the answer for the question about who’s responsible for safety: you as the host employer should almost always record it.
The company that is responsible for the day-to-day supervision of a worker is responsible for recording the accident, and in most cases that will be the host employer.
Injury and illness recordkeeping responsibility is determined by supervision. Employers must record the injuries and illnesses of temporary workers if they supervise such workers on a day-to-day basis. 29 CFR 1904.31(a). Day- to-day supervision occurs when “in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.” -OSHA
In some cases, a staffing agency will send a representative to the worksite, but that person’s presence doesn’t mean the recordkeeping responsibility lies with the staffing agency.
Who Could Receive OSHA Citations Involving Temporary Workers?
An OSHA inspection at a worksite that has temporary workers could result in citations for both the host employer and the staffing agency. Safety responsibilities are shared, so the blame for problems can fall on both companies.
That being said, OSHA citations from these situations tend to more negatively impact host employers, since they are responsible for day-to-day safety in most cases.
For example, when a temporary worker at a distribution center experienced an electric shock and suffered severe burns, OSHA cited both the host employer and the staffing agency for failing to provide proper electrical safety training. In a press release about the incident, OSHA says, “Temporary staffing agencies and host employers share control and responsibility for temporary employee safety and health.”
It’s worth noting, though, that the host company received one willful and 10 serious violations with a $124,000 penalty, while the staffing agency only received four serious violations and a $26,000 penalty.
A similar situation occurred at a fruit processor in Texas. An OSHA inspection found serious problems related to noise levels, chemical hazards and amputation hazards. The host employer was cited for 12 serious violations and two repeat violations and fined over $100,000, while the staffing agency was found responsible for not providing appropriate chemical safety training and fined $6,300.
In some cases, OSHA may find the staffing agency isn’t responsible for the hazards and only cite the host employer, as was the case at Plaid Enterprises in Georgia. Workers were exposed to amputation and electrical hazards, and OSHA found the staffing agency wasn’t responsible because it didn’t supervise the hazardous circumstances or have knowledge of the circumstances.
All of this isn’t to say that OSHA will not hold staffing agencies responsible for safety violations, but it should raise awareness about the fact that hiring workers from a staffing agency doesn’t pass the responsibility for safety to someone else.
Make Safety Responsibilities Explicit
As a host employer, you are responsible for the safety of all employees on your worksites. This means you should make the effort to learn about the skills temporary workers have and the training they have received and then provide specific instructions about the tasks they will be performing.
Consult with staffing agencies ahead of time and put safety responsibilities in your contracts. It’s better to be safe than sorry, so spell out who will be doing what.
When OSHA announced the beginning of its temporary worker initiative in 2013, assistant secretary of labor David Michaels said, “Many of those killed and injured are temporary workers who often perform the most dangerous jobs, have limited English proficiency and are not receiving the training and protective measures required. Workers must be safe, whether they’ve been on the job for one day or for 25 years.”
Often, this is true. Inexperienced workers get thrown into work situations where they aren’t very comfortable and haven’t received the training necessary to perform tasks safely. At a bottling company in Florida, a 21-year-old temporary worker was killed on his first day on the job in 2013. These accidents can be avoided by improving communication about safety responsibilities on multi-employer worksites.
For more information about OSHA’s temporary worker initiative, consult their website.
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