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OSHA still eyeing temp worker protections despite administration change

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As companies continue to turn to staffing agencies to supply temporary workers, the U.S. Occupational Safety and Health Administration is still closely watching these agencies and host employers despite a change in administration and some cuts to the agency’s budget.

The agency’s latest guidelines for temporary workers aim to clarify the often-murky relationship between host employers and staffing agencies, signaling that the agency remains committed to overseeing and enforcing temporary workers rights, experts say.

OSHA’s recent bulletins provide more clarity on the responsibilities for host employers and staffing agencies, said Paul Vescio, senior risk consultant at Aon Risk Solutions. 

“Prior to 2013, there really was no official guidance on who’s responsible for what,” Mr. Vescio said. “There are a lot of subtleties involved with the [temporary] workforce.”

OSHA would be appropriated $549.0 million in fiscal year 2019 – the same appropriation level as fiscal year 2018, but nearly $3.8 million lower than the fiscal year 2017 budget, according to the Congressional Budget Justification for fiscal year 2019. The National Advisory Committee on Occupational Safety & Health, which had taken on temporary worker issues, has not met since 2016 following President Trump’s executive branch restructuring efforts, said Nafela Hojeij, attorney at Burr & Forman’s labor and employment practice in Atlanta.

But the agency has not slowed the enforcement of its temporary workers initiative, Ms. Hojeij said.

Employers need to abide by OSHA’s existing regulations to save time and money, Ms. Hojeij said. Though OSHA may change its regulations, state and local regulators often adopt similar workplace safety rules. And employers can spend money as they adjust to each presidential administration’s enforcement of OSHA regulations, so it’s easier to adhere to the agency’s policies regardless of who is in office, Ms. Hojeij said.

“There’s some areas of the law that are by nature very confusing as we’ve had this transition between a very pro-employee administration and to a pro-employer administration,” Ms. Hojeij said. “It takes time for things to go from the top down to the line level.”

The cost of injured temporary workers extends beyond lost work hours and slowed progress, experts say.

For example, a temporary worker injury could trigger OSHA inspections and result in steep fines for violating workplace safety regulations, said Daniel Flynn, partner at Dinmore & Shohl LLP in Chicago.

With OSHA’s latest noise and air quality guidelines, the temporary worker may not immediately experience side effects from exposure. But if a worker is particularly sensitive to certain air quality or noise conditions, the employee could file a workers comp claim which the staffing agency would have to resolve, Mr. Vescio said.

“For a long time in the staffing industry, they just feigned ignorance… But that’s been changing over the years,” said Mr. Vescio. “Staffing companies are becoming smarter and more selective about where they’re placing workers. And they’re asking questions about indoor air quality and noise exposure.”

If a temporary worker has to miss work due to the working conditions, the staffing agency would be responsible for the medical treatment and lost wages, but the host employer would be responsible for recording the injury or illness on their OSHA injury and illness logs, he said.

Under these guidelines, the host employer will have to report workplace injuries for both full-time and temporary workers to OSHA, but some of the financial responsibility is shifted to the staffing agency, Mr. Vescio said.

“When there is an OSHA inspection at a worksite, typically the staffing company and the client will be fined,” Mr. Vescio said. “The client tends to be fined more heavily, because they’re seen as the controlling employer. They know what the exposures are in the workplace. They know what the controls should be.”

Hiring temporary workers allows employers to save on benefits and workers comp claim payouts reserved for full-time employees, Mr. Vescio said. Because the staffing agency handles the workers compensation claims for injured temporary workers, the host employers’ workers comp programs will improve because their injury frequency severity declines, he said. 

Industries like warehousing and distribution, food preparation, packaging, manufacturing and food production often rely on temporary workers to meet short-term production demand increases or to pre-qualify full-time hires, Mr. Vescio said. Given the ever-changing need for temporary workers, employers are disincentivized from investing in their training, he said.

Some staffing agencies will handle the majority of safety training while others won’t, and that will affect the cost of placing temporary workers, Mr. Flynn said. Some companies have hired another staffing agency or independent auditors to evaluate whether temporary workers receive the proper training and relevant exams, he said.

When hiring temporary workers, employers need to sort out what training they and the staffing agency will provide up front, because the cost of hiring those workers can vary based on how much training the staffing agency will provide as well as worker availability, Mr. Flynn said.

“There are a lot of other costs beyond the penalty,” Mr. Flynn said. “Making sure that the employer stays in front of it and complies with all of OSHA’s standards is pretty important to their ultimate bottom line.”