Over the last year, the Occupational Safety and Health Administration (OSHA) has ratcheted up scrutiny on temporary workers. An OSHA memo, issued April 29, 2013, announced a new emphasis on training and safety practices for temp workers. The memo calls on the agency’s regional administrators to direct field inspectors to assess whether employers who use temps are complying with their responsibilities under the Occupational Safety and Health Act of 1970. Among other things, inspectors are now to determine whether temps understand both the language and the vocabulary of the training they receive.
OSHA field inspectors must now determine whether employees are temporary workers and, if so, if they are exposed to conditions that could create a safety violation. OSHA agents have been directed to use records reviews and interviews to evaluate whether temps have received the required training in languages and terms they understand. OSHA agents are now supposed to list the name of the temp’s staffing agency, the agency’s location, and the structure under which the temporary workers are reporting.
Employers need to know
In light of this new emphasis by OSHA, employers need to take a fresh look at their use of temporary employees, their relationships with staffing agencies, and how they train all their employees. If current practices are inadequate or outdated, companies should move to update them as soon as possible.
Work closely with HR and legal – The new OSHA emphasis calls for a multi-departmental response. When employers use staffing agencies for temp employees, it’s not always clear who bears responsibility for training and record-keeping. Companies should work very closely with HR, in-house counsel and outside attorneys to clarify the job descriptions, supervisory authority, training and record-keeping for temps.
Review training methods – Employers should take this opportunity to review their training manuals and procedures for temps to ensure that they are current and comply with all the appropriate rules and regulations. Employers should also consider potential hazards of specific jobs and sites and if they are appropriate for temps.
Make sure temporary employees understand training materials – OSHA has explicitly said that temps must be able to understand training materials, in terms of both language and vocabulary. This may require translating materials into the native languages of temp workers. The employer is ultimately responsible for the safety of both its employees and temporary workers in its workplace.
Check staffing agreements – Employers need to carefully review their agreements with staffing agencies to ensure that the agreement provides for indemnification for any safety or health violations created by the temporary employee. OSHA also recommends that the agencies and employers outline their respective responsibilities for compliance in their contract. This will avoid “confusion as to the employer’s obligations,” according to the agency’s website.
However, regardless of what the contract says, employers should be prepared to fall under the scrutiny of OSHA if a temporary worker is injured or killed on the job.
Under federal law, employers are required to provide a worksite “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” With its latest emphasis, OSHA has put employers on notice that they must treat temporary workers like permanent employees when it comes to training on safety and health protections.
Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment law firm based in Houston.