Member Article

If your company utilizes temporary workers supplied by a staffing agency, you may be a target of OSHA. On April 29, 2013, the Deputy Assistant Secretary of OSHA, Richard Fairfax, issued a memorandum to its Regional Administrators, entitled “Protecting the Safety and Health of Temporary Workers.” Mr. Fairfax explained the reasons for the memorandum:

In recent months, we have received a series of reports of temporary workers suffering fatal injuries during the first days on a job. In some cases, the employer failed to provide safety training or, if some instruction was given, it inadequately addressed the hazard, and this failure contributed to their death.

Referencing the recent death of a 21-year-old temporary worker on his first day on the job, the memorandum explains OSHA’s “concerted effort” to ensure that temporary workers are protected from workplace hazards. Labeling these temporary workers as part of a “vulnerable population,” Mr. Fairfax instructs the regional offices to do the following:

• Assess a Host Employer’s Duty to Provide a Safe Workplace. In order to determine whether employers are complying with their responsibilities under the OSH Act, the memorandum directs compliance officers to determine during an inspection whether any employees are temporary workers and whether any of the identified temporary employees are exposed to violative conditions. 
• Where Temporary Workers are Present, Interview Them and Collect Documents. Compliance officers are instructed to assess through records and interviews whether temporary workers have received training in a language and vocabulary they understand. 
• Examine Temporary Workers Use of and Knowledge about Administrative Controls and Personal Protective Equipment (PPE). Fairfax notes that recent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals or lack of lockout/tagout protections, among others.

To evaluate the goal of reducing injuries to temporary workers, OSHA has created a new code for compliance officers to track when the person exposed to a workplace hazard is a temporary worker. Additionally, the memorandum explains that compliance officers should document the name of the temporary workers’ staffing agency, the agency’s location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).

Employers should keep in mind that OSHA is not implementing a program to conduct inspections on certain industries with a prevalence of temporary workers. Rather, it appears that employers who are already subject to an OSHA inspection should expect additional questioning by the compliance officer regarding the existence of temporary workers provided through a staffing agency. Companies who depend on such temporary help should consider auditing how existing procedures between the host employer and the staffing agency safeguard temporary worker safety.

For questions about this memorandum, please contact the author or any of the attorneys within the OSHA and Workplace Disasters Practice Group.