Thursday, April 10, 2014

Recordkeeping Guidance for Temporary Staffing Issued by OSHA

One year ago this month,the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced an initiative to further protect temporary workers from workplace hazards.The OSHA temp worker initiative web page can be found here:

Due to increasing employee benefits and health care costs, as well as employee turnover, employers are more frequently using temporary employees to address staffing shortages or an unexpected increase in production. In these situations, a workplace often has multiple employers, the host employer, and the staffing agency.

OSHA’s Multi-employer Policy

Section 5(a) of the Occupational Safety and Health Act broadly requires employers to furnish each of its employees a workplace free from recognized hazards and to comply with all occupational safety and health standards developed by OSHA. Thus, the act creates two types of obligations: (1) a “general duty” obligation running only to the employer’s own employees; and (2) an obligation to obey all OSHA standards with respect to all employees, regardless of their employer.

This second obligation formed the basis for OSHA’s “multi-employer worksite policy,” under which the agency decided it had the authority to issue citations not only to employers who exposed their own employees to hazardous conditions, but also to employers who created a hazardous condition that endangered employees, whether its own or those of another employer. This policy gave OSHA the ability to issue citations to multiple employers even for violations that did not directly affect the employer’s own employees. By 1994, OSHA’s policy instructed its compliance officers to issue citations to any employer who:

  1. -exposed its own employees to a hazardous condition (“exposing employer”);
  2. -created a hazardous condition that endangered any employer’s employees (“creating employer”);
  3. -was responsible for correcting a hazardous condition even if its own employees were not exposed to the hazard (“correcting employer”); or
  4. -had the ability to prevent or abate a hazardous condition through the exercise of reasonable supervisory authority (“controlling employer”).

Although the multi-employer doctrine has particular importance on the construction industry, OSHA has continuously expanded the scope of its multi-employer worksite policy to impose liability on all host employers. This includes manufacturers who subcontract out maintenance work, such as office property managers who subcontract out window cleaning and maintain any level of control over the “means and methods” by which the subcontractor performs the actual work.

For instance, OSHA has applied the multi-employer worksite policy to factory settings, where it cited the factory operator where an employee of a subcontracted cleaning company was killed while performing sanitation work at the factory (IBP, Inc. v. Herman, 1998). More recently, OSHA applied the multi-employer doctrine at a maintenance garage fixed-facility when an outside contractor employee suffered a fatal fall through a skylight while inspecting a rooftop heating, ventilation, and air conditioning system (Secretary of Labor v. Ryder Transportation Services, February 28, 2011).

Effect of OSHA’s Initiative on Host Employers

OSHA’s latest temporary employee initiative places new obligations on host employers. Certainly, host employers should expect OSHA to treat temporary employees the same as its own employees. Thus, host employers must now evaluate their use of temporary employees and their potential exposure to health and safety hazards.

Further, OSHA will also likely expect host employers to provide health and safety training to all employees, no matter what the duration of the employment. This training must also be provided in the language and vocabulary the temporary employees can understand. Thus, if an employer uses a staffing company that employs a largely Russian or Vietnamese  population, the host employer may need to translate its materials into the temporary employees’ native language to ensure all employees understand the training, although there currently is no regulation that requires translation of written safety policies or training materials.

The employer may also have to determine if these employees are literate; if they cannot read, the employer may have to utilize interpreters to provide verbal training that the employee can understand. In other words, OSHA will require host employers to treat temporary and its own employees the same when it comes to protection from hazards and health and safety training, regardless of whether the employee is on-site for one day or one year.

 OSHA's Recordkeeping Guidance

On March 13, 2014, OSHA released a new educational bulletin on injury recording requirements to help protect temporary workers.

OSHA already requires all employers to maintain an OSHA 300 log. This log is used to record all injuries and illnesses that have medical treatment above and beyond first aid, need modified duty or require days away from work.

At the end of each year, the number of injuries is totaled and the number of hours worked is added onto the OSHA 300A form, which is posted from February 1–April 30 of the following year.

So who is responsible for recording temporary worker injuries? 

The OSHA standards state, "Whoever is providing the day-to-day supervision is the employer that needs to record those injuries." Day-to-day supervision occurs when the “employer controls conditions presenting potential hazards and directs the worker’s activities around, and exposure to, those hazards.” In most cases, this is the host employer.

Even in cases where the temporary staffing agency has an on-site supervisor, since the host client controls the conditions, the responsibility of recordkeeping would still fall on the host client.

The full document (in pdf format) issued by OSHA can be found here:

 Thank you for reading.

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