Safety for temporary employees: whose job is it?

According to the Bureau of Labor Statistics (BLS), in 2011 there were just over 2.8 million temporary workers in the U.S. — about 2.3 percent of the workforce that year. “Temps” are classified by BLS under Temporary Help Services (NAICS 56132).

Temp Services recorded 2011 Total and DART rates of 1.9 and 0.9, respectively. Compared to private industry average rates of 3.5 and 1.8, that makes temp services look pretty safe, right? The problem is that those injury rates don’t tell the right story, and part of the reason is that we don’t really know where all of the injuries and illnesses are ending up, if they get recorded at all.

Just this week we saw an OSHA news release regarding the death of a temporary worker in Jacksonville, FL on his first day at the job. Sadly that’s an all too common event, as discarding temporary workers into “non-employee” status is a favorite ruse of many employers, particularly for ignoring injuries to temps. Responsibility for recording injuries to temporary workers has been long-examined and clearly settled, at least on paper: 29 CFR 1904.31 requires recording of injuries on the 300 Log for all employees including “recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis” (emphasis added).

Who is the temp actually working for while at your site? In most cases, the “host” employer is paying the service that provided the workers, so he/she draws a check from the temp service, not the worksite. Many employers mistakenly (or conveniently) conclude that since the temp is technically being paid by someone else, the temp works for someone else or is a contractor. For OSHA purposes, not so.

An “employee” is not defined by OSHA based on who pays them. What matters is whether there is an employer-employee relationship between the parties. Some criteria OSHA uses to determine that relationship:

  • The nature and degree of control the hiring party asserts over the manner in which the work is done;
  • The degree of skill and independent judgment the temporary worker is expected to apply;
  • The extent to which the services provided are an integral part of the employer’s business;
  • The right of the employer to assign new tasks to the worker; and
  • Control over when and how long the work is performed

So if you have temporary workers in the plant and you are telling them how, when and where to do their job and the work they do is integral to your business, under OSHA they are your employees. And if they get hurt or need training, PPE, hearing exams, medical surveillance or air monitoring, they must receive the same treatment as your “real” employees. No keeping two sets of 300 Logs (one for us and one for temps). No providing PPE for us and charging “them” for it or making them provide their own. No telling the temp service to keep its own 300 Log. No telling temps that they cannot have MSDS information nor get copies of air sampling results. Over the years I’ve seen all of this and much worse.

Training may be the most commonly violated requirement of all. Every OSHA standard that requires training requires the training BEFORE an employee is exposed to the hazard (think HazCom, LOTO, PPE and others). The problem for temporary workers is the often short-notice and transient nature of many of the jobs. Finding a temp with his/her HAZWOPER Awareness, HazCom, PPE, Forklift Operator and hearing conservation training all in place and documented is certainly a logistical challenge, especially for the very reduced wage that many employers are seeking to pay. However, it does not change the requirement for all of this and more to be in place before workers are exposed to workplace hazards. In fact, the OSHA citations for that temporary worker fatality in Florida included two willful violations for failing to “develop, document and utilize” LOTO procedures and failing to train temporary workers on required procedures before beginning work.

This issue is not limited to traditional manufacturing sites. Anywhere that OSHA applies, so does this conversation. An email I received from a healthcare facility illustrates the point: “I need help finding where OSHA (or other regulatory body) says that we need to do initial evaluation on our non-employees that get sharps injuries. Specifically, the residents that work/rotate, the nursing students, the non-employed docs that are here (especially surgeons) etc. Can anyone put their finger on it?

The question the writer should have been asking is whether these “non-employees” are really non-employees In fact, they are almost certainly employees under the relationship test. Even the nursing students. One test of being a student and not an employee is whether the host providing the training derives “immediate advantage from the activities of the trainees or students, and on occasion his operations may actually be impeded.” Does anyone think that nursing students are providing no advantage to the host facility and are not on occasion impeding the operation (as do all trainees and students in the workplace vs. the classroom)? The good news is that realizing that most or all of these people are employees makes the bloodborne pathogens question easy: yes, report their needlestick injuries on the needlestick log and evaluate them for disease exposure. Would you really not do that by pretending they don’t work there??

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