By Phil LaDuke
This week I attended EH&S Today magazine’s Safety Leadership Conference, which may be, by the way, the best kept secret in safety conferences, but an outstanding place to hear from thought leaders in safety talk in depth about some of the emerging challenges to safety. I was, for a change, an attendee and except for a 2:43 welcome and opening comments at a speaker appreciation dinner did not speak at the event.
The first session I attended was in the compliance track, and it was called They’re Not My Employees: The Practical and Legal Pitfalls Involving Temporary Employee Safety. Compliance tracks at conferences tend to be mind-numbingly dull and unduly complicated affairs that usually have the participants praying to die, but thanks to the folks at Fisher & Phililips LLP (who sponsors the compliance track) the two sessions I attended were lively and dare I say it? engaging, even entertaining. They’re Not My Employees: The Practical and Legal Pitfalls Involving Temporary Employee Safety was no exception. Moderated by Victor Geraci and presented by and Ed Foulke, ( both are partners at Fisher & Phillips), and General Counsel to the American Staffing Association, Stephen Dwyer, this session had more than its fair share of good advice for anyone who uses temporary workers. Here’s what I took away from the presentation:
- The safety of temporary workers is, and will increasingly be, an OSHA focus. The co-employment avoidance defense (the practice of host companies claiming that if they were to train contractors or temporary workers as if they were their own workers could jeopardize the “temporary” status of workers and subject them to IRS penalties and fines) no longer holds up. According to Foulke (as far as safety is concerned) “You essentially have to treat temporary workers as if they were your own” says Fouke.
- It doesn’t matter that temporary workers come and go so quickly that you can’t cost-effectively train them. OSHA has released memoranda’s that tells OSHA inspectors to assess the compliance of staffing firms and host employers. The memoranda also create a new code that identifies instances where temporary workers are exposed to safety and health violations and to determine whether or not temporary workers received required training. Furthermore OSHA inspectors will assess the extent to which the training was delivered in a language and using a vocabulary the temporary workers could understand.
- An on-site administrator from the temp agency doesn’t count as supervising the temporary employee. Many host companies erroneously believe that having a representative from the temp agency on-site meets the standard for providing supervision. It’s an easy mistake to make, since often times the administrator in question handles time keeping, benefits questions, who’s working when and where. But in OSHA’s eyes, supervision is usually the responsibility of the host company. OSHA’s reasoning being that a temp agency administrator is not able to ensure site safety because they lack the authority to stop work; the host company has the most control over the workplace and is thus responsible for keeping it safe.
“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.”
David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health
- It doesn’t matter how short the tenure of the temporary worker is you have to abide by the law. The host company is on the hook for providing (with some exceptions) the temporary worker with all required PPE, and has to provide temporary workers with training that is identical or equivalent to the training it provides its own employees regardless of the length of employment. This is sure to frustrate host employers who may have exceptionally high turnover rates among temporary hires, but the law is the law. Of course this may ecourage some companies who engage in the 90 days and out employment practices where they continually churn temporary employees to hire the workers as full time employees instead of temporary workers, but time will only tell.
- Read the contract between you and your temp agency. The contract between the temp agency and the host company will probably spell out some of the “who does what?” of training so you had better read and understand it. Unless you know for certain that the other company has provided the training you will be on the hook for doing it.
- This issue isn’t going away. Victor Geraci quoted David Michaels as saying “A worker’s first day on the job shouldn’t be their last day on the planet”. The proliferation of temporary workers and the upswing in the deaths and serious injuries of temporary workers has made OSHA take a hard look at how employers (whether employers of record or host companies) ensure the safety of temporary workers this issue is emerging and will likely change the face of the temporary worker industry.
OSHA as put out a resource for helping companies to protect temporary workers and it’s worth reading https://www.osha.gov/temp_workers/