OSHA Regulation and the Growing Popularity of Employee Leasing Programs. Including Temporary Worker Services and Professional Employer Organizations

Transcription

1 OSHA Regulation and the Growing Popularity of Employee Leasing Programs Including Temporary Worker Services and Professional Employer Organizations Jeffry Carter RMS Regulatory Services John D. Surma Of Counsel Adams & Reese 10 February

2 Part I Letters of Interpretation, Policy Statements, and Enforcement Guidance: It is important to note that OSHA has no rules specific to employer responsibility for temporary or leased employee health and safety. 1 Instead of seeking specific rules through the normal rulemaking process, OSHA has chosen to apply existing rules and publish Letters of Interpretation, make certain policy announcements in the form of enforcement memoranda in the effort to protect these workers. Most of the applicable documents and guidance can be found on their webpage at: The letters of Interpretation (LOI) and enforcement memoranda offer a glimpse into how OSHA believes employers should handle training responsibilities, provision of PPE, as well as how they would likely cite companies who failed in their duties. It becomes clear, upon a quick reading of these documents, that OSHA considers both the Lessee and Lessor as having very specific duties. The first L.O.I. is from It addresses hazard communication training and still represents OSHA policy: OSHA considers temporary employment agencies who send their own employees to work at other facilities to be employers whose employees may be exposed to hazards. Since it is your company, which maintains a continuing relationship with its employees, but another employer (the client) who creates and controls the hazards, there is a shared responsibility for assuring that your employees are protected from the workplace hazards. The client has the primary responsibility of such protection. The "lessor employer" likewise has a responsibility under the Occupational Safety and Health Act. In meeting the requirements of OSHA's Hazard Communication standard the lessor employer would, for example, be expected to provide the training and information requirements specified by the HCS section (h)(1). Client employers would then be responsible for providing site-specific training and would have the primary responsibility to control potential exposure conditions. The client, of course, may specify what qualifications are required for supplied personnel, including training in specific chemicals or personal protective equipment (PPE). Contracts with your client employer and your employees should clearly describe the responsibilities of both parties in order to ensure that all requirements of the regulation are met. (Emphasis Added). The 1994 L.O.I continues and addresses provision of personal protective equipment and medical surveillance issues: PPE Issues: Client employers would be responsible for providing PPE for site- specific hazards to which employees may be exposed. However, again, the client may specify the services that it wants the lessor employer to 1 The term temporary employees is not intended, and does not apply to, day laborers or seasonal laborers hired directly by the employer. 2

3 supply, including provision of PPE for the placed employees. Contracts with the client employer should clearly describe the responsibilities of both parties in order to ensure that all requirements of OSHA's regulations are met. Medical surveillance: The client employer must offer and perform the required medical surveillance or evaluations. The lessor employer must ensure that the records of the required medical surveillance or evaluations are maintained in accordance with the appropriate OSHA standards. The temporary help service must maintain employee records in accordance with the appropriate OSHA standard (e.g. the Lead standard, the Occupational Noise Exposure standard, etc.) Note typically medical records are to be held by the employer for duration of employment plus 30 years. However, the client employer must perform the site characterization and monitoring of exposure to hazardous chemicals on the work site. New Hire Hazard Communication Training The lessor employer would be expected to provide some generic training and client employers would be responsible for providing site-specific training, or training to update employees on new hazards in the workplace. Please see the answer to question 1 for a further explanation. OSHA s second LOI from 2012 reiterates a number of points from the early letter including: In general, both the temporary agency and the host employer have the responsibility to ensure that training, hazard communication, and recordkeeping requirements are fulfilled. Therefore, the issue at hand is the division of responsibility. To ensure that there is clear understanding of each employer's role in protecting employees, OSHA recommends that the temporary staffing agency and the host employer set out their respective responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a contract will ensure that each employer complies with all relevant regulatory requirements, thereby avoiding confusion as to the employer's obligations. TRAINING In general, however, it is the responsibility of the temporary agency to ensure that employees have received proper training. In practice, even when the temporary agency has provided basic training, the host employer provides the workplace-specific training appropriate to the employees' particular tasks. In order to fulfill its obligation under such circumstances, the temporary agency must have a reasonable basis for believing that the host employer's training adequately addresses potential hazards employees may be exposed to at the host worksite. 3

4 Injury records for leased employees: 29 CFR , requires that an employer "record on the OSHA 300 Log the recordable injuries and illnesses of all employees on [the employer's] payroll" and of "employees who are not on [the employer's] payroll if [the employer] supervise[s] these employees on a day-to-day basis." 29 CFR (a). The regulation goes on to reiterate that if an employer "obtain[s] employees from a temporary help service, employee leasing service, or personnel supply service," that the host employer is obligated to record any recordable injuries and illnesses if it "supervise[s] these employees on a day-to-day basis." Id (b)(2). Therefore, in your first scenario, in which the host employer has full supervisory control over employees, the host employer is responsible for injury and illness recording and reporting. In your last scenario, in which only the temporary staffing agency exercises day-to-day supervision over employees, the temporary staffing agency is responsible for injury and illness recording. In your other scenarios, the temporary staffing agency and host employer share the supervisory role, so it is not readily apparent which employer must comply with 29 CFR In that case, OSHA advises that the two employers reach an agreement regarding the responsibilities in question. Please note that only one employer's log should contain a record of injuries and illnesses of the employees. Id (b)(4). (Emphasis Added). OSHA s division of safety responsibility: Lastly, and most importantly, Section 5(a)(1) of the Occupational Safety and Health Act states "that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." Both the temporary employer and the host employer will be cited, therefore, if OSHA finds that both employers were responsible for the violative condition(s). Part II OSHA Policy Announcements: OSHA has published two enforcement memoranda. These serve to put internal staff and the regulated community on notice that the agency considers this arena ripe for some enforcement action. The memoranda also require OSHA personal obtain information about who the Lessor company is, where they reside, and the nature and extent to which the staffing company exercises joint control over the work performed by the temporary employee. Another key consideration for the CSHO performing the inspection is whether, with respect to the training provided to temporary employees, the training is provided in a language those employees understand, in recognition of the fact that many temporary employees do not speak English. Interestingly, OSHA acknowledges, even if not explicitly, that these are employees provided pursuant to contracts and, as such, some duties can be contractually assigned or delegated. However, if the contractually assigned or delegated responsibility it not fulfilled, both employers are likely subject to citations. OSHA considers the training and equipping of all employees to be critical to workplace safety. OSHA remains skeptical that the leasing company can effectively train employees for all hazard communication issues at a client s facility and divides responsibility between general training and sitespecific training. If there is an accident or serious injury, both companies should expect a very critical review of their programs. 4

5 Copies of Memoranda to Regional Administrators along with other items of interest can be found at: Conclusion: USDOL OSHA is clearly concerned about these relationships between employers and the impact those relationships have on safety. They are concerned that temporary employees are ill-prepared, lack proper PPE, and are required to engage in the most dangerous work. This is a priority area. As such, you should be thinking about how your program stacks up. For example: 1. How does the leasing company provide basic training to prepare employees for site-specific training to be provided by the host employer? 2. Are the temporary employees prepared for site-specific training when they arrive at the host employer? 3. Do the employees understand the various chemical risks, lock-out/tag-out, confined-space, and other safety needs of the host employer? 4. Who chooses and who provides the PPE needed for the temporary employee to perform his or her work safely? 5. Which employer was actually responsible for supervising the work of any injured or killed employee? 6. If one of these employees is injured, on whose 300 Injury Log does it appear? 7. Finally, OSHA s whistleblower rules apply, to both employers. Both the temporary employer and the host employer need to exercise caution when dealing with a temporary employee who has filed a complaint that would subject that employee to protection under any one of a number of whistleblower statutes. Please direct questions to the writers: Jeffry Carter Jeff@rms-safety.com Phone: John D. Surma Counsel Adams & Reese John.Surma@arlaw.com Phone:

6 The opinions and statements contained herein are the authors or direct quotes taken from the US DOL webpage. Every attempt has been made to assure accuracy. When attempting to comply with complex regulatory programs, you should always seek guidance of Counsel who has experience in the subject matter. Permission to reuse or quote any part is given. The authors appreciate acknowledging the source. I would like to acknowledge the assistance and wise counsel of Mr. John D. Surma, of Adams and Reese in Houston. His assistance and professional guidance was greatly appreciated. 10 February