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OSHA stays the course on temporary worker safety initiatives

OSHA stays the course on temporary worker safety initiatives

The U.S. Occupational Safety and Health Administration’s heightened focus on the safety of temporary workers has not eased under the Trump administration, and both staffing companies and host employers should be aware of what the agency expects them to do to keep these workers safe, experts say.

This focus was reinforced by the recent release of its guidance on lockout/tagout training requirements for temporary workers — the 10th guidance document issued in recent years specific to this class of employees and the third guidance document released in 2018.

“OSHA has for a while recognized the potential that these temporary workers are getting the worst jobs and possibly falling through cracks from a safety training standpoint,” said Jeff Corder, Clearwater, Florida-based vice president of loss control at AmTrust North America, a workers compensation insurer that writes coverage for staffing agencies.

In April 2013, OSHA launched the Temporary Worker Initiative to help prevent work-related injuries and illnesses among these workers. OSHA generally considers the staffing agency and host employer to be joint employers and requires them to work together to make sure Occupational Safety and Health Act requirements are fully met and temporary workers are provided a safe workplace, according to a July 2014 memorandum sent by OSHA’s national office to its field staff.

“OSHA’s intention with this temporary worker initiative is to say to companies, ‘Here’s the education you need to act responsibly, here are the criteria we’re looking for if we come in to do an inspection,’” said Todd Grover, global senior manager for applied safety solutions at Master Lock Co. LLC and a participating member of the ANSI Z244.1 committee on control of hazardous energy lockout, which addresses complex lockout/tagout issues.

That 2014 memo promised additional enforcement and compliance guidance, which has come on topics ranging from injury and illness record-keeping requirements to noise exposure and hearing conservation. The latest guidance released in November covers the application of OSHA’s lockout/tagout standard, which addresses the unexpected energization and startup of machinery and is one of the top five cited OSHA violations every year, to temporary workers.

“I was surprised to see it, quite frankly,” said Matthew Deffebach, Houston-based partner and head of the labor and employment practice group at law firm Haynes and Boone LLP. “I thought under the current administration that we might not see as much emphasis on temporary workers as we did under the previous administration.”

If a temporary worker is not performing servicing or maintenance, but is or may be working in an area where lockout/tagout procedures may be utilized, then he or she is considered an affected employee, just as the worker would be if he or she was actually performing the service or maintenance activities, with training requirements included in the standard applicable to both scenarios, according to the guidance.

“For a lot of employers, particularly those that have sophisticated machinery, they’re probably not using a lot of temp workers to actually work on the machines, but it does raise that issue where OSHA says in the guidance that if those temp workers are working in proximity where there might be work on a machine, they’re considered affected employees under the regulation,” Mr. Deffebach said. “Affected employees still have to receive training on what’s happening with energy isolation. They have to understand that they’re not authorized to work on the machines.”

OSHA’s continued focus on temporary worker safety makes it critical for staffing agencies to perform their due diligence, experts say.

“Before they send an employee out to a host company, the staffing company should do some type of an assessment of the jobs that are going to be done and the potential hazards that the employees they are providing to the host company are going to face,” Mr. Corder said.

But such due-diligence efforts are not foolproof, he noted. In relation to noise exposure hazards, for example, a staffing agency might visit the site and be told that their employees will be in one building, but they are assigned to another building with higher noise levels and not provided the appropriate hearing protection, Mr. Corder said.

While most staffing companies quickly work to address identified hazards, with some pulling their employees out of hazardous worksites, “there have been times when they’ve done nothing,” he said, adding that sometimes it’s a sales department employee rather than someone with a safety background conducting an assessment.

Problems can emerge if the temporary employees are only working at host employer sites for short periods of time because employers may not feel it’s necessary or worth training them or testing their hearing, but OSHA makes no exemption in its requirements based on the length of on-site time, experts say.

“OSHA does not see the difference between a person on site for one day involved in a hazardous task or whether a week justifies the training or whether a month-long assignment justifies the training,” Mr. Grover said. “OSHA’s point is (training) is worth providing because you’re putting a person into an exposure. And when you combine lack of knowledge with poor preparation and then you put in place a temporary worker’s intent to simply do the job, they are in a compromised position to complain, to ask questions and to recognize hazards and refuse to do the work because they feel it is potentially jeopardizing their employability.”

These guidance documents have been supplemented with enforcement actions against staffing agencies and host employers. In November, the agency cited a provider of temporary agricultural labor for a serious violation of the OSH Act’s general duty clause and proposed penalties totaling $11,641 after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island, Nebraska, according to an OSHA statement. The heat index reached 100 degrees on two days in July 2018, and OSHA inspectors determined the company failed to implement and train employees on a heat injury and illness prevention program.

“If this is going to become a point of emphasis, given how frequently lockout/tagout is cited, you could see an uptick in activity and citations, which just seems like a strange thing to come out of this current administration,” Mr. Deffebach said.





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