August 22, 2022

Temporary Worker Best Practices

On July 26, 2022, the National Institute for Occupational Safety and Health has released a new set of guidelines pertaining to best practices regarding temporary workers (“TWs”).  These apply to host employers (“HEs”) of temporary workers (“TWs”) across all industries that employ, or plan to employ, TWs at their worksites.

Under the new guidelines, before a contract is written or signed, HEs are encouraged to evaluate the safety and health factors associated with hiring a TW in a given position. This involves the HE:

1.  reviewing with the staffing company (SC) the job duties, job descriptions, anticipated hazard exposures, hazard analyses, equipment and/or machinery, worksites, and necessary training and personal
   protective equipment (PPE);
2.  providing the SC with safety data (such as OSHA 300 Logs and safety data sheets) and other information to evaluate the worksite;
3.  inviting a SC representative to do a walk-through of the worksite to observe the workers and safety program in action;
4.  determine whether the SC has a process in place to evaluate the qualifications and experience of job candidates; and
5.  evaluating the SC’s safety and health program materials.

Once a complete evaluation is done, the next recommended step is to contract with the SC as to the division of safety and health responsibilities between the HE and SC. This contract should specify:

1.  job details, such as the tasks TWs are and are not allowed to perform, anticipated hazards, training to be provided and what language it will be in, and the PPE required, as well as who will pay for, supply, inspect, and train TWs how to use it;
2.  what documentation the SC will provide to determine a TW’s qualifications and experience;
3.  when the employers will jointly review the work and worksites of TWs;
4.  the HE’s duty to inform the SC when and why it’s under OSHA investigation;
5.  the processes for:
   (a) changing job duties;
   (b) disclosing changes to hazards;
   (c) maintaining and sharing health and safety training documentation;
   (d) maintaining and documenting consistent work standards; and
   (e) reporting work-related injuries, illnesses, and safety concerns without fear of retaliation
6.  the HE’s duty to record and report serious TW injuries and illnesses to OSHA;
7.  procedures for coordinating medical treatment and a TW’s return to work
8.  who will provide injury and illness records;
9.  who will mentor and directly supervise TWs;
10.  who will verify and pay for workers’ compensation coverage;
11.  how TWs will be protected from infectious disease;
12.  the HE’s duty to conduct medical surveillance and screening of TWs as needed;
13.  how TWs and SC representatives will gain access to secure sites; and
    
14.  how the safety and health policies of both employers will be tracked.

Generally, the HE is responsible for site and task-specific safety and health training to TWs. According to the guidelines, this training should include information on:

1.  approved tasks TWs can perform with emphasis on not doing other tasks without the HE getting approval from the SC;
2.  how to recognize, reduce, and eliminate hazards;
3.  required PPE and how to use it;
4.  employer duties and workers’ rights under OSHA with an emphasis that TW have the same rights as permanent workers;
5.  how to obtain first-aid treatment;
6.  the TW’s duty to and procedures for reporting work-related injuries, illnesses, and close-calls to both the HE and SC;
7.  how to gain access to secure sites; and
8.  and how TWs can participate in the HE’s safety and health program.

After providing the aforementioned training, HEs are encouraged to follow-up with TWs to determine their understanding and retention of the information and provide retraining as necessary. All trainings should be documented and include the names of the workers and instructors involved. HEs should additionally review the generally health and safety program provided by the SC to determine if it covers, at least, the details of the job, an overview of employer responsibilities and workers’ rights, and common hazards and PPE associated with the position. If an SC’s program is not sufficient, the HE should document as such and communicate with the SC to ensure TWs are properly trained.

In addition to training TWs, HEs should also provide training to anyone who will be supervising a TW. This training should include information on:

1. approved tasks TWs can perform with emphasis on not doing other tasks without the HE getting approval from the SC;
2. the process for modifying job tasks if there is a change of assignment;
3. their duty to provide the same or equivalent supervision as to the HE’s own employees performing the same or similar work
4. the potential need to provide extra mentoring and supervision to inexperienced TWs;
5. employer duties and workers’ rights under OSHA with an emphasis that TW have the same rights as permanent workers;
6. how to communicate with TWs about their performance and safety-related behavior;
7. how to encourage them to report work-related injuries and illnesses; and
8. the safety and health responsibilities of the HE and SC.

Finally, when it comes to reporting TW injuries and illnesses, HEs should:

1.  ensure TWs are aware of the reporting procedures and feel comfortable communicating any concerns;
2.  inform the SC of any reported injury or illness; and
3.  follow federal, or state-specific as applicable, guidelines for when injuries and illnesses should be reported to OSHA.

In responding to reports, HEs should partner with the SC to investigate, determine the cause, and implement corrective actions and improvements to prevention programs, as necessary. It is also important for HEs to ensure TWs and their supervisors are aware of the general procedures for coordinating any associated medical treatment and return to work, as applicable. HEs should record TW injuries and illnesses on their OSHA 300 Log and coordinate with the SC to complete any documentation required by the SC’s workers’ compensation carrier and ensure that the records are available upon request by a TW or worker representative.

While these guidelines may help HEs reduce instances of workplace injury and illness, it is important to note, they are not meant to replace formal elements of official occupational safety and health programs or compliance with the particular regulatory requirements.

If you have questions, please contact the lawyers at Cummins, Goodman, Denley & Vickers at (503) 476-8200.

©2022 Cummins, Goodman, Denley & Vickers P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Cummins, Goodman et. al., and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.