Protecting the Safety and Health of Temporary Workers

Webinar presented by the
Occupational Safety and Health Administration
and the American Staffing Association
July 18, 2013

Dr. David Michaels
Assistant Secretary of Labor
For Occupational Safety and Health

• Thank you for inviting me to today's Webinar. I'm especially grateful to Stephen Dwyer and Carla Brathwaite of the American Staffing Association for hosting today's webinar, and I sincerely appreciate all your interest in protecting the health and safety of temporary workers.
• As you can see, the temporary workforce is one that is growing rapidly. In recent months, OSHA has received several reports of temporary workers suffering fatal injuries - some during their first days on the job.
• One of our most recent high-profile enforcement cases was with Bacardi Bottling Corp. following the death of a 21-year-old temporary worker. Lawrence "Day" Davis was crushed to death on his very first day at work while he was cleaning up glass inside a palletizer at the Florida bottling facility. Our investigation found that he and his co-workers were never trained in the simple lockout/tagout procedures that would have saved his life.
• January 22, 2013, was Samir Storey's first day as a temporary worker at a paper mill in South Carolina. He was assigned to clean the inside of a tank. The local news reported that he and two other temps were given a brief training video and respirators to wear inside the tank; but when an alarm sounded and hydrogen sulfide started pouring into the tank, only two of the three workers were able to escape. News stories reported that Samir was left dangling by his harness and trapped inside the tank for hours. A few days ago, South Carolina OSHA issued more than $30,000 in fines to two employers involved in the tragedy. Mr. Storey was 39 years old; he left a wife and three children.
• Last summer, on a day the thermometer reached 90 degrees, a temporary employee working for a garbage collection company in New Jersey, collapsed. He was rushed to the hospital where his internal body temperature was 106.9. He died of heat stroke. OSHA issued citations against both employers.
• Those are just three cases. We are currently investigating several other recent first-day fatalities among temporary workers, including heat fatalities. Just this morning, I signed a condolence letter to the family of another temp who died in June, apparently of heat stroke, while working as part of a garbage collecting crew. He left a 9-year-old daughter.
• We have known for decades that new workers, when they first start at a new job, are at greatly increased risk of injury - and we know why: New workers are often not adequately trained in the potential hazards at the new job site and the measures they can take to protect themselves.
• It isn't surprising that there is a growing body of research showing that temps are at increased risk of workplace injury - after all, many temporary workers are new to a jobsite several times a year. And it is possible that some employers, thinking the temp may only be around a few days or a few weeks or even a few months, are less willing to devote the resources to fully train that worker.
• As all of you are well aware, under the OSHA law, all of this nation's workers have the right to safe working conditions, and employers have the duty to provide necessary safety and health training to all workers in every workplace. In addition, it is against the law to retaliate against workers who raise safety concerns or who report injuries.
• Given all this - the enormous size of the temporary workforce, these reports of temp workers being killed on the job, and the data on increased injury rates - OSHA has launched a concerted initiative, using enforcement, outreach and training, to ensure that temporary workers are protected from workplace hazards.
• While the extent of responsibility under the law of staffing agencies and host employers is dependent on the specific facts of each case, staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers - including, for example, ensuring that OSHA's training, hazard communication, and recordkeeping requirements are fulfilled.
• And OSHA could hold both the host and temporary employers responsible for the violative condition(s) - and that can include lack of adequate training regarding workplace hazards.
• I know every one of you listening to this webinar will do your best to ensure that all temporary workers are safe on the job. No one wants what happened to Day Davis or Samir Story to happen to any worker. You wouldn't be on this call if you didn't have that commitment.
• So I am pleased and gratified that you have joined this webinar to learn about best practices from OSHA and the American Staffing Association.
• Together, we can make sure that at the end of the shift of every work day, all temporary workers in the United States go home safely to their families.
• Thank you. And now I'm going to turn over this presentation to Lewis Daniel of OSHA's Enforcement Office.

Lewis B. Daniel, Supervisor
OSHA Directorate of Enforcement Programs

• Thank you Dr. Michaels. Good Afternoon everyone. It is a pleasure to speak to you today. I am going to cover a brief overview of OSHA with a focus on employer's rights & responsibilities and workers' rights.
• In 1970, with an act of Congress, OSHA was created. Known as the OSH Act, it assured safe and healthful working conditions for men and women by setting and enforcing standards as well as providing training, outreach, education and compliance assistance.
• When OSHA was created, an estimated 14,000 workers were killed on the job each year, or about 38 every day. Over the past 40-plus years of protecting workers, OSHA has made great strides in workplace safety and health. However, significant hazards and unsafe conditions still exist in U.S. workplaces. Each year more than 3.3 million working men and women suffer a serious job-related injury or illness. Millions more are exposed to toxic chemicals that may cause illnesses years from now.
• OSHA covers private sector employers and workers in all 50 states, the District of Columbia, and other U.S. jurisdictions either directly through federal OSHA or through an OSHA-approved state plan.
• State plans are OSHA-approved job safety and health programs operated by individual states instead of federal OSHA. An example would be Cal-OSHA (in California) or North Carolina OSHA. OSHA approves and monitors all state plans and provides as much as 50 percent of the funding for each program. State-run safety and health programs must be at least as effective as the federal OSHA program.
• Under the OSH law, employers are responsible for providing a safe and healthful workplace for their workers.
• Employers have the responsibility to provide a safe workplace free from serious hazards and must follow all OSHA safety and health standards.
• Employers must find and correct safety and health problems as their due diligence under the OSH Act. OSHA requires that employers first try to eliminate or reduce hazards by making feasible changes in working conditions rather than relying on personal protective equipment - a.k.a. PPE (e.g. masks, gloves, earplugs); and if an employer provides PPE, then the employer must train the employees on WHEN and HOW to use the PPE.
• Any training given by the employer must be in a language that the employees can understand. An example is when an employer is giving training on procedures for how to de-energize or re-energize a piece of equipment by locking out or tagging out the various energy sources to prevent employee entrapment or other hazards from released energy.
• Additional general information that employers must provide includes chemical hazards that employees may work with or be exposed to. This information can be conveyed through training, labels, alarms, color-coded systems, chemical information sheets and other methods. Some of you may recognize these topics as elements in OSHA's Hazard Communication Standard.
• Employers must also:
  • Perform tests in the workplace, such as air sampling or noise monitoring, as required by some OSHA standards.
  • Provide hearing exams or other medical tests required by OSHA standards.
  • Post injury/illness information so that employees can see them.
  • Prominently display the official OSHA "Job Safety and Health - It's the Law" poster that describes rights and responsibilities under the OSH Act.
  • AND employers MAY NOT retaliate or discriminate against workers for using their rights under the OSH Act to report hazards that could lead to or have caused a work-related injury or illness.
• Workers have the right to:
  • Working conditions that do not pose a risk of serious harm.
  • Receive information and training about hazards, methods to prevent harm, and the OSHA standards that apply to their workplace (the training must be done in a language and vocabulary workers can understand).
  • Receive copies of records of work-related injuries and illnesses that occur in their workplace, as posted yearly or when requested.
  • Receive copies of the results from tests and monitoring performed to find and measure hazards in their workplace.
  • Receive copies of their workplace medical records.
  • AND, workers have the right file a confidential safety and/or health complaint with OSHA to have their workplace inspected.
• Workers also have the right to:
  • Participate during an OSHA inspection. They may speak with an inspector in private without retaliation from an employer.
  • Section 11(c) of the OSH Act prohibits discharge or discrimination by any person against any employee for OSHA-related activity AND authorizes the Secretary to investigate and seek all appropriate relief against any such person. Retaliatory lay-offs or failure to refer a temporary worker who engages in protected activity under OSHA would be grounds for the Secretary to seek remedial - including injunctive - relief in district court.
  • Temporary workers are also entitled to the same protection against retaliation as full-time workers. Employers may not take action against employees for participating in protected workplace activities (i.e. filing a complaint, voicing concerns about workplace hazards to supervisors, etc.). Workers also can inform OSHA of other whistleblower items that OSHA enforces, which currently is 22 different whistleblower statutes covering a variety of workplaces. For more information visit whistleblowers.gov.
• I've explained a brief overview of OSHA, given some information regarding Employer Rights, and highlighted important essential Worker's rights - which should go without saying, but includes temporary workers.
• Thank you for your time. I would like to turn over this presentation to Tom Galassi, OSHA's Director of Enforcement Programs. He will further discuss OSHA's efforts to protect Temporary Workers.

Thomas Galassi, Director
OSHA Directorate of Enforcement Programs

• Thank you all for participating in this webinar and for your interest in this important topic of protecting the safety and health of temporary workers.
• This afternoon I am going to present information that OSHA has been developing in regard to safety and health protections for temporary workers.
• This will include information on:
  • The OSHA Temporary Worker Initiative
  • Recommended Safety and Health Practices (or best practices)
  • Shared Responsibility for worker safety and health
  • Compliance Guidance reflecting OSHA policy
• As a point of introduction, OSHA's mission is to assure safe and healthful working conditions for working men and women. The OSH Act applies to approximately 8 million workplaces and covers industries such as construction, manufacturing, services and agriculture.
• OSHA has launched a Temporary Worker Initiative, which includes ensuring that staffing agencies and host employers understand their safety and health responsibilities under the Occupational Safety and Health Act.
• Temporary workers are entitled to the same safety and health protections as direct-hire employees.
• We believe it is well recognized that temporary staffing agencies and host employers share control over the employee, and therefore they share responsibility for temporary worker's safety and health.
• And it is essential that both employers comply with all relevant OSHA safety and health requirements.
• As Dr. Michaels mentioned earlier, there have been fatalities where temporary workers were exposed to dangerous heat stress, chemical and fall hazards without proper personal protective equipment, and exposure to hazardous energy without the protections of proper lock out/tag out devices.
• Incidents such as these involving such recognized hazards can and must be prevented.
• OSHA launched the Temporary Worker Initiative on April 29, 2013. The first action was to send a memorandum to our field, highlighting the importance of protecting temporary workers.
• The memo instructs our compliance officers to ensure that safety and health protections, including training, are in place for temporary workers.
• We understand that we need better enforcement data on temporary workers. We expect that the initiative will provide more information on hazards in workplaces utilizing temporary workers.
• Therefore, inspectors will now code additional information during an inspection when temporary workers are exposed to safety and health violations.
• Inspectors will assess whether temporary workers received required training related to the hazards they are exposed to in a language and vocabulary they can understand.
• In regard to who is covered: Under this initiative, temporary workers are those supplied to a host employer and paid by a staffing agency.
• OSHA is also reaching out to stakeholders:
  • to better understand the nature of this growing industry, and
  • to increase awareness of safety and health responsibilities shared by staffing agencies and host employers.
• Stakeholders that we have reached out to include national safety and health associations such as:
  • American Society of Safety Engineers
  • American Staffing Association
  • OSHA state plans
  • training organizations
  • National Institute for Occupational Safety and Health.
• Individual staffing agencies have also been approaching us.
• We have been promoting compliance assistance nationally - for example, today's webinar with the American Staffing Association.
• We also plan to develop outreach materials, such as fact sheets and webpages.
• We are working with our stakeholders to identify and develop Best Practices guidance, which we plan to publish very soon.
• We have met with two of our National Advisory Committees, NACOSH and ACCSH , who are focusing on this issue.
  • The National Advisory Committee on Occupational Safety and Health (NACOSH) advises, consults with, and makes recommendations to the Secretary of Labor and the Secretary of Health and Human Services (HHS) on matters relating to the administration of the OSH Act.
  • The Advisory Committee on Construction Safety and Health (ACCSH) is a continuing advisory body that provides advice and assistance in construction standards and policy matters to the Assistant Secretary of Labor.
• As a result of the April 29th field instruction:
  • 262 inspections have been or are being conducted, which have identified Temporary Workers exposed to safety and health violations.
  • Thus far, 270 violations have been cited at workplaces where temporary workers are present.
  • Some of the 262 inspections are still open, so this data continues to mature.
• The most frequent violations found at workplaces where temporary workers are identified include:
  • Electrical hazards
  • Hazards requiring lock out/tag out protections
  • Machine Guarding
  • Fall Protection
  • Hazard Communication
  • Powered Industrial Trucks
• A few of these hazards have been identified in the recent cases discussed earlier.
• The recommended practices that I will discuss may apply to both the staffing agency and host employers. These recommendations have been compiled through our consultation with stakeholders, and we continue to develop them.
• First: Staffing agencies and host employers should each have a safety and health program and ensure that temporary workers are addressed by them.
  • A safety and health program should help employers both identify hazards and develop protective measures for temporary workers. We know that these programs can be effective in reducing injuries, illnesses and fatalities.
  • A safety and health program should include management commitment and employee involvement, worksite analysis and hazard assessments, hazard prevention and control, and safety and health training.
• Next: Both employers should perform a hazard assessment of the worksite. Typically, we would expect the host employer should have performed a hazard assessment of its worksite. Before sending workers to the site, the staffing agency should be aware of the hazards existing at the worksite.
  • Staffing agencies need not become experts on specific workplace hazards, but should determine what conditions exist at their client (host) worksite, what hazards may be encountered, and how best to ensure protection for the temporary workers.
  • Staffing agencies can accomplished this by visiting the worksite, by performing their own assessments, by requesting and reviewing the host employer's hazard assessment, and also by reviewing recordable injuries and illnesses at the prospective worksite.
• Each employer should consider the hazards it is in the best position to prevent and correct, and also best positioned to comply with the relevant OSHA standards.
• Both employers should define the scope of work in the contract: Defining the scope of the temporary workers' duties discourages tasking workers to perform work that they are unqualified and untrained to perform and which may carry a high risk of injury.
  • Another benefit of specific contractual language is that there is clear understanding of each employer's role in protecting temporary workers.
  • OSHA strongly recommends that the temporary staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations.
• Both employers should conduct new project orientation and safety and health training: The host employer and the staffing agency should work together to ensure that all workers on new projects or workers newly placed on existing projects are given an orientation before work begins that includes information on both the applicable general safety and health topics and worksite specific issues.
• A critical, recommended practice is to maintain communication between the staffing agency, temporary workers and the host employer. This will help ensure that injuries and illnesses are promptly recorded and reviewed and the underlying hazards corrected. Recordkeeping is an effective way to identify injury and illness trends, and to target the serious workplace hazards.
• By keeping in touch with workers, the staffing agency can bring concerns to the host employer early - before injuries occur. Workers can alert their staffing agency if work is outside the scope of their assigned duties. The staffing agency can also verify that training and other host-employer responsibilities are being performed.
• The bottom line is that the staffing agency and the host employer need to communicate how they will address the safety and health protections for their shared workers.
• From our discussions with stakeholders, we are aware that a number of employers attempt to promote safety through incentive programs.
• We want everyone to be aware that some workplace policies and practices could discourage reporting and constitute unlawful discrimination, violating section 11(c) of the OSH Act and other whistleblower protection statutes. Some of these policies may also violate OSHA's recordkeeping regulations - particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses.
• Such programs may include taking disciplinary action against employees who are injured on the job regardless of the circumstances surrounding the injury. Reporting an injury is always a protected activity.
• Other programs unintentionally or intentionally provide employees an incentive not to report injuries. For example: An employer may award a team of employees a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices, but there are better ways.
• Incentives that promote worker participation in safety-related activities include, for example, identifying hazards or participating in investigations of injuries, incidents, or "near misses."
• Temporary staffing agencies and host employers share control over the worker, and are therefore jointly responsible for temporary workers' safety and health.
• OSHA has concerns:
  • that some employers may use temporary workers as a way to avoid meeting all their compliance obligations under the OSH Act and other worker protection laws.
  • that temporary workers get placed in a variety of jobs, including the most hazardous jobs.
  • that temporary workers are more vulnerable to workplace safety and health hazards and retaliation than workers in traditional employment relationships.
  • that temporary workers are often not given adequate safety and health training or explanations of their duties by either the temporary staffing agency or the host employer.
• Therefore, it is essential that both employers comply with all relevant OSHA requirements.
• As we have been stressing, both host employers and staffing agencies have roles in complying with workplace health and safety requirements and they share responsibility for ensuring worker safety and health.
• A key concept to highlight is that each employer should consider the hazards it is in the best position to prevent and correct, and in the best position to comply with OSHA standards.
  • For example (and I'll talk about more about training in a few minutes): staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.
• The key is communication between the agency and the host to ensure that the necessary protections are provided.
• Staffing agencies have a duty to inquire into the conditions of their workers' assigned workplaces. They must ensure that they are sending workers to a safe workplace.
• Ignorance of hazards is not an excuse.
• Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers.
• The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.
• And, just as important: Host employers must treat temporary workers like any other workers in terms of training and safety and health protections.
• Now...I would like to review more specific guidance that the agency has issued on this topic.
• The Nov. 21, 2012 letter (to Staffmark) provides guidance on responsibility for certain OSHA safety requirements between a temporary staffing agency and its client. Issues addressed include: recordkeeping, training and hazard communication.
• I'll also note that OSHA has addressed these issues in other policy documents.
• First: Recordkeeping. As I stated earlier, injury and illness records are a valuable source of information to aid in identifying hazards.
• The responsibility to record is based upon who supervises the temporary worker's day-to-day tasks. The OSHA regulation on recordkeeping addresses this issue specifically.
• For example, when the host employer has full supervisory control over employees, the host employer is responsible for injury and illness recording and reporting.
• When only the temporary staffing agency exercises day-to-day supervision over employees, the temporary staffing agency is responsible for injury and illness recording.
• Day-to-day supervision occurs when "in addition to specifying the output, product or result to be accomplished by the person's work, the employer supervises the details, means, methods and processes by which the work is to be accomplished."
• In terms of Training: There are specific OSHA standards which cover training requirements, depending on the industry, worksite, and job duties to which the staffing agency sends its employees.
• In general, however, it is the responsibility of the staffing agency to ensure that employees have received proper training.
• In practice, even when the staffing agency has provided basic training, the host employer provides the workplace-specific training appropriate to the employees' particular tasks. The host employer usually has the best knowledge and control of the hazards at the worksite.
• In order to fulfill its obligation under such circumstances, the staffing agency must have a reasonable basis for believing that the host employer's training adequately addresses potential hazards that employees may be exposed to at the host worksite.
• Training must be in a language that the worker understands, and is conducted before the worker begins work or at a new worksite.
• Hazard communication training is an example of shared responsibility, which I will address next.
• OSHA's Hazard Communications Standard is designed to ensure that the hazard of all chemicals is transmitted downstream to employers and employees. This transmittal of information is accomplished by means of container labeling and safety data sheets. Employers are required to provide effective information and training to workers on the hazardous chemicals in the work area.
• Both the temporary agency and the host employer are responsible for ensuring that employees are effectively informed and trained regarding exposure to hazardous chemicals.
• The host employer holds the primary responsibility for training because the host employer:
  • uses or produces chemicals
  • creates and controls the hazards
  • is best suited to inform workers of chemical hazards specific to the workplace
• The staffing agency maintains a continuing relationship with its employees, and is, at a minimum, expected to inform employees of the requirements of the Hazard Communication standard.
• To summarize: We want to stress that:
  • Staffing agencies have a legal obligation not only to comply with the requirements that are under your exclusive control, but also to monitor the working conditions of your employees at your clients' workplaces.
  • Host employers must treat temporary workers like any other worker in terms of training and safety procedures.
  • Last: We've listed a compilation of enforcement and guidance documents for your reference...
  • Thank you for your commitment to addressing this important issue of protecting temporary workers. We will have time for a few questions at the end of the presentation. I'd like to hand things over at this time to Bill Wilson.

Bill Wilson, Program Analyst
OSHA Directorate of Cooperative and State Programs

• It's been my privilege to have worked with both government and industry, addressing safety and health issues within a number of industries. I know that both groups can work together on common goals, ensuring to the best of our ability that our workers, including temporary staff, get the extra help they need to stay safe on the job.
• OSHA's home page, www.OSHA.gov, is the portal to all of OSHA's resources including compliance assistance and I'll just give you a quick overview. For our purposes you'll only need to note a few things:
  • In the upper right-hand corner of the home page, there's a tab called the A-Z Index - a quick link to all the Agency's resources listed conveniently in alphabetical order.
  • Beside it is a link, OSHA en Español, which is a link to many Agency resources in Spanish. As we all know, the Spanish-speaking worker is a growing part of our national workforce.
  • In addition, OSHA has developed a number of publications - such as QuickCards and Fact Sheets - and many of these are available in both English and Spanish as well as other languages. With these publications OSHA has reached out to hundreds of organizations, conducted numerous educational programs, and provided extensive compliance assistance to vulnerable workforce populations. The goal of providing these publications is to enhance workers' knowledge about their workplace rights and improve their ability to exercise these rights.
• Compliance Assistance Web page - helps employers comply with, and workers understand, OSHA requirements and learn about OSHA's Cooperative Programs. OSHA is committed to helping workers and employers achieve a safe and healthful workplace.
• Compliance Assistance Specialists in every state are available to provide local assistance in areas of particular concern in your area.
• On this webpage you'll find links to Spanish language resources, and also resources that OSHA provides for reaching out to diverse workforces and workers with limited English proficiency.
• Our On-site Consultation Program offers free, confidential advice and assistance to small and medium-sized businesses in all states across the country, with priority given to high-hazard worksites. On-site consultations are separate from OSHA enforcement and do not involve penalties or citations. Consultants come from state agencies or universities and work directly with the employer to identify workplace hazards, provide advice on complying with OSHA standards, and assist with establishing safety and health management programs. On-site training assistance can lead to improved workplace productivity, lower workers' comp premiums, and overall better employee productivity, retention and morale.
• Each year OSHA's initiates nationwide campaigns to raise awareness of safety and health issues.
  • OSHA's Heat Illness Prevention Campaign aims to teach employers and workers about the dangers of working in hot weather and to provide valuable resources to address these concerns.
  • OSHA's Fall Prevention Campaign offers a special webpage with many resources as part of its strategy to raise awareness among employers and workers about the hazards of falls from ladders, scaffolding and roofs.
• OSHA offers a number of ways for workers and employers to contact the Agency.
  • Filing a complaint/reporting emergency. Workers can submit complaints about unsafe working conditions by phone or by using an online form. Reports of emergencies (fatalities or imminent life threatening situations) should be reported immediately to OSHA's 800 number - do not send e-mail in these situations.
  • Toll-Free Hotline - Employers, workers, and the public can call OSHA's toll-free hotline for compliance assistance information 24 hours a day, 7 days a week. In addition, Spanish-speaking employers and workers can call the toll-free hotline and speak to a Spanish-speaking operator.
  • E-Correspondence - Employers, workers, and the public can submit questions through the Agency's online electronic submission form on the OSHA Web site. The inquiry is read and routed to the proper OSHA office for response. This online form is also available in Spanish.
  • Letter - Employers, workers, and the public can send a letter to the OSHA National Office in Washington, DC. All letters received by OSHA will receive an official Agency response. OSHA posts its answers to selected questions on its "Standard Interpretations" Web page.
• OSHA is here to assist industry in providing the safest work environment possible. Nothing beats working together toward a common goal.
• Please take advantage of these resources made available to you. We'd love to hear from you. Thank you.