OSHA is getting tough on staffing agencies that provide employers with temporary workers if they do not provide those workers with legally required safety and health training. But, the buck doesn’t stop there: employers that use the temporary workers are feeling the heat, too.
After investigating the death of two temporary employees from excessive heat this summer in Texas and Virginia, OSHA took action that could increase the risk of civil liability claims against the involved companies. OSHA issued citations and fines both to the temp agencies and to the employers that used the workers.
While the $13,000 to $20,000 fines issued to the companies were moderate in comparison to other OSHA penalties, the government’s actions could provide evidence that plaintiffs’ lawyers can use to help sue the employers and make an end-run around workers’ compensation shields.
In an Op-Ed piece in the Houston Chronicle last month, OSHA chief Dr. David Michaels said his agency has seen too many instances over the past year of fatalities involving workers during their first few days on the job.
“Most of these have been temporary workers,” he wrote. “We have known for a century that new workers are at increased risk for occupational injury and fatality, and that higher risk is due to a lack of safety training and experience at that work site.”
OSHA defines temporary workers as those supplied to a host employer and paid by a staffing agency. It has used its authority under the general duty clause of the Occupational Safety and Health Act to enforce its rules against staffing agencies. Some OSHA officials believe that temporary workers often lack benefits, have no access to paid sick leave, and are often afraid to raise concerns for fear of reprisal.
Since April, OSHA has undertaken a national initiative to protect temporary workers in order to halt what Michaels described as a “rising toll of fatal injuries.” Agency inspectors must determine, in every inspection, if every temporary worker on the site has received the safety training and protections required by law for the job. “If they haven't, we will hold their employers accountable,” Michaels warned.
In August, Michaels announced OSHA was partnering with the Department of Labor's Wage and Hour Division to create new strategies to protect temporary workers. The agency is also trying to clarify the obligations staffing agencies have for their workers when they are on-site at host employers.
In the Chronicle article, Michaels said OSHA is also reaching out to labor staffing agencies, explaining how they must insist their employees are not put at risk of injury or death while working. And OSHA is making every worker, including temporary workers, aware that they have the right to contact OSHA if they face workplace hazards.
At least one state has also taken steps to protect temps. In Massachusetts, a new law effective in January requires temporary agencies to provide certain workers with written job orders that have information about the job, necessary training and which party is responsible for payment of personal protective equipment.