Walk or Don’t Walk: OSHA’s Revised Rules Protect Temporary Workers from Workplace Hazards | DCR Workforce Blog

Walk or Don’t Walk: OSHA’s Revised Rules Protect Temporary Workers from Workplace Hazards

When your kids were little, you probably told them to wait for the “Walk” signal at busy intersections before crossing the street. And even then, they should still look both ways. As an adult, it’s the employer’s responsibility to not only to talk to you about your safety, but to set up guidelines, precautions and trainings to ensure that safety is a priority.

Over the years, the Occupational Safety and Health Administration (OSHA) has been tightening the loopholes that allowed sub-contractors, staffing agencies or their clients to game the system and use the definition of “employer” to avoid their safety obligations toward temporary workers. OSHA’s rules have been moving toward more joint employer responsibility on the part of the parent company. In 2013, OSHA decided that workplace hazards and a lack of training and safety procedures to face them were leading to more deaths of temporary workers and decided to ensure safety in the workplace for them.

OSHA’s Temporary Worker Initiative stipulated that “in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsibility for compliance.” This has resulted in multi-employer citations in many cases and poses risks for companies that hire temporary workers.

OSHA has also brought in policy changes that increase applicable penalties for violating the safety and training obligations of employers starting August 1, 2016. In all states regulated by federal OSHA, fines raise in step with inflation, with an expected initial “catch-up” adjustment of approximately 80%. The potential impact on erring businesses could be huge, especially for companies that employ temporary workers. There are large labor law liabilities that can come with ignoring the safety of temporary, leased and borrowed employees.

After August 1, 2016, all citations by OSHA will follow the new penalty structure for all violations that occurred after November 2, 2015. With the new penalties in effect, the maximum fine for a Serious or Other-Than-Serious Posting Violation and Failure to Abate penalties will now be $12,471 per violation, up from $7,000 per violation. Willful or Repeated violations will go from a maximum of $70,000 per violation to $124,709 per violation.

Implications for employers

Though OSHA holds that the company that directs a temporary employee’s day-to-day activities is the primary employer, the National Labor Relations Board (NLRB) has ruled that the mere authority to control – even if not exercised – defines one as an employer. So employers who have temporary workers on their rolls need to remember that they are their employees in the eyes of OSHA.

Employers can minimize risk and liability for safety violations at the workplace by taking these precautions:

  • Maintain an effective OSHA compliance and audit program to detect and correct violations at company facilities and worksites to reduce the risk of exposure to worker safety violations.
  • Treat temporary workers the same as your regular employees regarding safety issues.
  • Include the temporary workers in your OSHA record-keeping and reporting requirements.
  • Spell out their training requirements with the staffing agency in their contract and seek confirmation that it was fulfilled, and document the evidence – if you don’t want to be cited for failing their safety obligations to their workers.
  • Get the company contractually indemnified and held harmless from any OSHA violations, affording the maximum protection possible to the staffing client, in case of an erring staffing agency.
  • Contractually bind any subcontractors to observe all safety rules and OSHA regulations.
  • Make no assumptions and believe no claims without verification/validation with regard to the trainings undergone by a temporary employee.
  • Provide hands-on training to a temporary employee on equipment that’s unique or special to your workplace.
  • Providing training and training material are not enough. Put processes in place to check the workers’ comprehension of the training material that would depend on their literacy levels, their familiarity with the language used as a medium of instruction. In case of issues with the workers’ levels of comprehension, try using pictograms that provide instructions without the need for any language or vocabulary.
  • Maintain an OSHA 300 Log to record work-related injuries and illnesses, and institute a HazCom program for all chemicals used on the worksite as well as conduct a hazard assessment to determine what hazards are present or likely to be present and what type of personal protective equipment employees must use.
  • Review their work practices and management relationships to ensure that a joint employment relationship is not established and that there’s insurance coverage to protect your organization further.
  • Complete or review required documentation for temporary employees.

In general, OSHA will follow a definition that describes the staffing agency and host employer to be “joint employers” of the worker as OSHA looks at any employer who is creating (the hazardous condition), exposing (the worker to the hazard), correcting (the hazard is this employer’s failed responsibility) or controlling (the existing safety violations and other health hazards) the workers as their employer.

A great Vendor Management System (VMS) can help you solve some of your safety issues. It can track required trainings to ensure that everyone has taken the mandated trainings. Do you have a VMS in place to track safety and other trainings for your contingent workforce? Smart Track is the solution you need to stay in compliance with safety rules and regulations. Email us at sales@dcrworkforce.com for more information.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.