The use of temporary workers has

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1 WHITE PAPER PERMANENT SAFETY SOLUTIONS FOR TEMPORARY WORKERS The use of temporary workers has increased to the point where the temporary industry is becoming one of the largest growth industries in the United States. No doubt there have been growing pains to go along with the boom, and one of the main areas of concern is the safety of the temporary worker. For a variety of reasons, the temporary worker has suffered the consequences of a lack of safety focus by either the host employer or the temporary agency or both. So whose responsibility is it to protect temporary workers? Is it the host employer or the temporary agency? Technically they are employees of only one, either the host employer or temporary agency, yet they perform duties for both parties. Based on guidance from OSHA s Temporary Worker Initiative, this paper explores the answers to these questions and provides solutions and recommended practices to avoid confusion. It is important to note the distinction between independent contractors and temporary employees. Independent contractors are given a job and it is completed without direct supervision from the host employer. Temporary workers require day-to-day supervision from the host employer to complete a task. Temporary Workers Making Headlines When scanning your local newspaper, all too often you ll encounter the tragic headlines that document the serious injuries or deaths of temporary workers... OSHA Finds Welders Unaware of Toxic, Explosive Fumes 30-Year-Old Temporary Worker Needs Surgery After Her Hand Catches in Packaging Machine When Blast Kills Temporary Worker, Critically Injures Another or 30-Year-Old Temporary Worker Needs Surgery After Her Hand Catches in Packaging Machine. The injured employee may have been an experienced temporary agency employee but had just started working at a new company. It s not uncommon for OSHA Finds Welders Unaware of Toxic, Explosive Fumes When Blast Kills Temporary Worker 1

2 experienced temporary workers to become a new worker several times a year. It s an all too familiar story, someone who is new to the worksite that is eager to please their new supervisor, hoping to catch a break and land that elusive full-time job with decent benefits. They are assigned to perform a task that is one of the least desirable at the facility, with possibly little or no formal training on how to perform the task safely. Unlike the person s job title of temporary worker, the consequences can be permanent a severe injury or even worse, they won t be coming home at the end of their shift. A day that started with promise ends in tragedy for the injured temporary employee and their family. Fast Growing Industry The temporary service industry has seen steady growth since the Great Recession, with industry employment estimates hovering over the three million mark for the first quarter of 2015, according to the American Staffing Association s survey results. Many of those three million employees are in the manufacturing, agriculture, warehousing and construction industries. There are many contributing factors to the increasing trend of employers opting to utilize temporary workers at their facilities. Some of the reasons companies employ temporary help are sudden or seasonal demands, one-time projects, flexibility and/ or lower hiring expenses. It is also a method for employers to recruit workers to see if they would be a good fit for their company. In some respects, it is a way of extending the probationary period or to use an old NO POSITIONS AVAILABLE HELP WANTED analogy of being able to kick the tires without the hassles of letting someone go because of unsatisfactory work. With temporary agencies, it s as simple as making a phone call to let someone go. Types of Temporary Workers There are several types of temporary workers. From the traditional employee who is hired from a temporary agency, a construction worker hired through a union hall, a migrant worker in farming or day laborers hired in the construction field that congregate in parking lots of big box home improvement stores. The Bureau of Labor Statistics (BLS) defines a temporary worker as one who is paid by a temporary help agency, whether or not their job is temporary. But there s more to a temporary worker than the BLS s definition. According to the 2013 report by the Center for Progressive Reform, At the Company s Mercy: Protecting Contingent Workers from Unsafe Conditions, our country s racial minorities make up a disproportionate percent of temporary workers. The report also finds that temporary workers have less formal education than their non-temporary counterparts, with English being a second language for many. According to BLS injury data for 2013, Temporary Help Services (North American Industry Classification System (NAICS) code ) experienced a total recordable case incident rate of 2.5 cases per 100 full-time employees. So is there really a safety problem for temporary workers if the incident rate is below the national average of 3.3? The Occupational Safety and Health Administration (OSHA) requires the direct The temporary service industry has industry employment estimates hovering over the three million mark for the first quarter of American Staffing Association 2

3 supervising location to record the injuries and illnesses on their 300 log. In most cases the temporary agency is not required to record the temporary employee s injury on their own 300 log because of the reporting requirements. That is why just looking at BLS data does not give a true indication of the complexity of the safety problem for the temporary help service industry. Blame Game Too often in the past when a temporary worker was injured on the job there was a lot of shifting of blame regarding who was responsible for the injury. The host employer felt that the temporary employee did not belong to them so the injured employee was not their problem. Contrary to that opinion, the temporary agency reasoned that they only supplied the employee to their client and the injury occurred while the host employer was directly supervising them so of course it was the host employer s problem. This type of thinking can and has caused confusion on the injured employee s part. The temporary agency and the host employer are considered co-employers of temporary workers and, therefore, both are required to provide a safe and healthy workplace free from recognized hazards. Neither party can contractually dismiss their responsibility for the safety of the temporary worker. Temporary workers are afforded the same protections under the OSH Act as their counterparts in the workplace, and it s both the host employer and the temporary agency s responsibility. The safety and health responsibilities will sometimes overlap. This unique employment structure demands effective communication between both parties. For both the host employer and temporary agency, the most important thing to remember is to correct and control the aspects of the temporary worker s safety that they are in position to influence. Temporary Agency Responsibilities One of the most important responsibilities the temporary agency has toward the temporary worker s safety is to not send them into a facility that they know is unsafe. Not every temporary agency has the resources to have an on-site safety professional evaluate a potential client s facility for safety hazards. Some basic hazard recognition training of staff personnel can help better equip them with the tools to identify hazards and minimize the exposure to their agency employees. One way to improve hazard recognition skills of agency staff is by sending them through an OSHA 30-hour training class. Other resources that could be leveraged are the use of safety professionals such as outside safety consultants, OSHA consultants or utilizing the client s workers compensation carrier to provide safety audit services. Regarding required medical surveillance or evaluations, all records of this nature must be maintained by the temporary agency. The agency must maintain cumulative exposure data (i.e., lead exposure or noise exposure data) when the employee works for several different companies during the year. A key component for a good working relationship between the two parties involved is having a clear understanding of the scope of work to be performed by the temporary workers. Specifying safety and health duties, identifying tasks that require personal protective equipment (PPE) and who will be supplying it, and defining who will be the temporary employee s point of contact at the temporary agency for questions are all keys to a sound safety relationship. The most important thing to remember is to correct and control the aspects of the temporary worker s safety. 3

4 Host Employers Responsibilities Host employers have an underlying obligation to treat temporary workers as they would their own. This can be accomplished by providing sufficient safety training to the temporary workers before they set foot on the facility. The temporary agency can provide general safety awareness training and information on how to report workrelated injuries. The host employer will need to provide site-specific safety training that is identical to what is provided to their own employees. This is best accomplished during the host employer s new hire orientation training. A critical component of all the training and instruction is that the training be communicated in a language the temporary worker understands. Also the host employer must offer and perform the OSHA required medical surveillance or evaluations for the temporary employees just like they offer to their own employees. For statistical purposes, OSHA requires the 300 log of injuries and illnesses be kept by the employer providing day-to-day supervision. Communication remains critical between the temporary agency and host employer when accidents occur. Temporary Worker Initiative On April 29, 2013, OSHA launched the Temporary Worker Initiative with the goal to increase OSHA s awareness of the plight of the temporary worker and to highlight the employer s responsibilities to protect temporary workers from dangerous workplace hazards. Another goal is to educate temporary workers of their rights under the OSH Act. Solutions As discussed earlier, OSHA considers the host employer and temporary agency as joint employers who share the safety responsibilities for the temporary worker. However, safety responsibilities will vary depending on the workplace conditions and may be clarified by agreement or contract between the temporary agency and host employer. Many of the responsibilities will often overlap. OSHA and the National Institute for Occupational Safety and Health (NIOSH) teamed up to develop Department of Health and Human Services (NIOSH) Publication Number and OSHA Publication Number , Recommended Practices, Protecting Temporary Workers. This document provides recommended best practices for both host employers and temporary agencies to better protect temporary workers through mutual cooperation and collaboration. To clarify ownership, the host employer and temporary agency should document who is responsible for the following: 1. Temporary Hazard Identification 2. Preventive Measures 3. Injury and Illness Recordkeeping 4. Personal Protective Equipment (PPE) 5. Training Hazard Identification Once a temporary agency is selected, representatives from the temporary agency should be invited to the host employer facility to observe the area and tasks the workers will be performing. The host employer is in the best position to identify OSHA requires the 300 log of injuries and illnesses be kept by the employer providing day-to-day supervision. 4

5 the hazards associated with the jobs being considered. Host employers typically complete a job hazard analysis (JHA) of the task(s). If JHAs have been completed for the identified tasks, they should be shared with the temporary agency. If JHAs have not been completed, time should be taken by both parties to complete them and document and identify all hazards associated with the task(s). While temporary agencies need not become safety experts, they should be able to assess conditions, recognize hazards and know how to address them. Participating in the JHA process will help them in the assessment process. This information is vital for the temporary agency to help select qualified and capable workers for the job. Preventive Measures Preventive measures should be taken to maintain the level of safety at the worksite after the hazards have been identified. The host employer should assign a mentor (experienced full-time worker) to train and work with the temporary worker until the temporary worker has a clear understanding of how to safely perform the task. Periodic checks should be made with the temporary worker to verify continued safe performance. Another excellent preventive measure is to treat the temporary workers as full-time employees of the host employer. They should not be excluded from any safetyrelated meetings or trainings related to their job task. Also, the temporary agency should have established methods in place to stay in touch with their employees while they are working at a client s worksite. Injury and Illness Recordkeeping OSHA continues to find that host employers and temporary agencies both are having a difficult time determining who is responsible for recording work-related injuries and illnesses, and resulting case management. OSHA does not allow injuries to be doublecounted on more than one OSHA 300 log. Either the temporary agency or host employer can record the injury on their 300 log but not both. OSHA has provided plenty of information as part of the Temporary Worker Initiative to answer this question. To determine who will record the injury or illness, the question of who is performing day-to-day supervision and who controls and directs the work of the temporary worker needs to be answered first. OSHA does not consider which payroll the temporary worker is on. What matters is whether there is an employer-employee relationship between the parties. If you have temporary workers in your facility who may be exposed to potential hazards while performing assigned tasks, and you are telling them how, when and where to do their job, you then own that relationship with the employee. In most cases the host employer is the one who owns the relationship with the temporary worker. As a best practice, the temporary agency and host employer should establish notification procedures to help ensure that when a worker informs one employer of an injury or illness, the other employer is apprised as well. The details of how this communication is to take place should be clearly established in contract language. Another excellent preventive measure is to treat the temporary workers as full-time employees of the host employer. 5

6 The party not assigned the employee relationship (typically the temporary agency) still has a share of the responsibility. They should maintain frequent contact with their workers and the host employer to ensure that any injuries and illnesses are properly reported and recorded and do not slip through the cracks. worker s activities around, and interaction with, those hazards Are best situated to perform the hazard assessment required for determining if PPE is necessary and will likely have already done so for its permanent staff The host employer may specify the services that it wants the temporary agency to supply, including provision of PPE. Contracts should clearly describe the responsibilities of both parties in order to help ensure that all requirements of OSHA s regulations are met. Training Personal Protective Equipment (PPE) Employers must provide and ensure the proper use and maintenance of PPE when it is required by OSHA standards or by the employer. As joint employers of temporary workers, both the host employer and the temporary agency are responsible for ensuring that adequate PPE is provided. The host employer will generally have the primary responsibility for selecting, providing and ensuring the use of adequate PPE for the job task(s) since they typically own the day-today supervision of the temporary workers. They also: Are most familiar with the workplace hazards that the temporary workers will encounter Control the workplace hazards and the The harsh reality of safety training for temporary employees, whose length of service is measured in hours or days, is it s the bare minimum or not provided at all. Training involved with temporary workers is thought of in two categories. The first category is general training and the second is worksite-specific training. OSHA says the responsibility is shared. Typically, general training would fall under the responsibility of the temporary agency. General training provides safety and health information applicable to different occupational settings such as worker-protection rights and hazard communication. Worksite-specific training identifies and communicates hazards specific to the job tasks and worksite. The majority of worksite-specific training will rest with the host employer since most OSHA training requirements are site specific. OSHA stresses that temporary workers should receive safety training that is identical or equivalent to that provided to the host employer s own employees performing the same or similar work. Best practices would have the safety training completed before the start of the work assignment. In the example of hazard communication training, the agency would conduct general All employees have a right to a safe workplace. - OSH Act 6

7 awareness training and the host employer would conduct chemical-specific training for the chemicals the temporary employees may be exposed to. Conclusion The OSH Act states all employees have a right to a safe workplace. Temporary workers have the same right to a safe workplace as regular employees, but they often fall through the cracks and are not provided a safe work environment. This results in a much higher risk for injury on the job. The challenge for the safety professional is maintaining an open cooperative team approach between the temporary agency and employer. This team approach starts even before the temporary worker arrives at the worksite. The key is open communication during the entire work cycle that starts with due diligence on the part of the host employer when selecting a temporary agency all the way to post employment case management and everything in between. Trends indicate temporary worker utilization in the industry will continue to climb. Because of this, the safety professional needs to answer a few key questions for their organization. Before partnering with a temporary employment agency, is your organization thoroughly vetting the agency s commitment to safety? Once temporary workers are on-site, is there robust and ongoing communication regarding all things safety between your organization and the temporary agency? And perhaps most importantly, from a safety perspective, does your organization embrace the temporary worker as one of your own employees and not a second-class citizen? If the safety professional can confidently answer yes to all three questions, then there is a solid foundation in place to successfully manage the challenges associated with temporary worker safety. About the Authors John M. Eliszewski holds a master s degree in Safety and Loss Control and has 20 years of safety and health experience. John is a Board Certified Safety Professional (CSP), Qualified Safety Sales Professional (QSSP) and OSHA-Authorized Outreach Trainer for General Industry. Wes J. Maertz holds a bachelor s degree in Occupational Safety and has over 20 years of safety experience working in industrial hygiene, safety consulting, fleet safety, human resources and loss control. Wes is a Board Certified Safety Professional (CSP), OSHA-Authorized Outreach Trainer for General Industry and a presenter at national safety shows. Grainger s safety product technical support professionals are here to support you Monday through Friday, 7 a.m. to 7 p.m. CT. Call your local Grainger branch or drop us an at safetysupport@grainger.com. Sources Recommend Practices Protecting Temporary Workers, Occupational Safety and Health Administration (OSHA) and National Institute of Occupational Safety and Health (NIOSH) Policy Background on the Temporary Worker Initiative, OSHA. July Temporary Worker Initiative Bulletin No. 1: Injury and Illness Recordkeeping Requirements, OSHA Temporary Worker Initiative Bulletin No. 2: Personal Protective Equipment, OSHA Transcript of Webinar: Protecting the Safety and Health of Temporary Workers, presented by OSHA and the American Staffing Association. July 18, At the Company s Mercy: Protecting Contingent Workers from Unsafe Conditions, Center for Progressive Reform. January, First Quarter Staffing Employment Increases 5.5% Despite GDP Contraction, American Staffing Association. June 18, John M. Eliszewski Grainger Technical Safety Specialist Wes J. Maertz Grainger Technical Safety Specialist W.W. Grainger, Inc. W-YMKE200 8SP7638