palletcentral

PalletCentral • September-October 2021 31 wall" inspections, including a records audit. All employers who have workers present at the worksite will be subject to that inspection too. This includes subcontractors but also temporary workers who may be onsite to fill vacancies on a short-term basis, usually hired via a staffing agency. If an inspection starts off as an NEP event, but the employer is also on OSHA's local "site specific" targeting list, then the inspection will be expanded to a wall-to-wall investigation. Because temporary workers are injured at higher rates than permanent employees, another issue that arises is lack of worker's compensation coverage as an exclusive remedy. While direct employees are generally barred from suing the employer if they are injured or become ill as a result of work duties, because worker's comp is available on a no-fault basis, this is not true for temporary workers. Some staffing agencies may add the host employer (client) as a secondary insured, but this is not normally the case. If such protection is lacking, and a temporary worker is seriously injured or killed, a tort action for personal injury or wrongful death will follow. OSHA citations against the host employer can be introduced as proof of negligence per se in many states. Supervisors may also face personal tort liability related to temporary workers, if they are injured or killed as the result of negligent training or supervision. OSHA and NIOSH have issued recommenda- tions on best practices for coordination between the host employer and staffing agencies, to better ensure safety for all workers, including: 1. Evaluate the host employer's worksite. Prior to entering a contract with a staffing agency, the parties should jointly review all worksites where the temps might be sent, as well as the task assignments and job hazard analysis (or SOPs) to identify and eliminate potential safety and health hazards. This also helps both entities identify what training and personal protective equipment (PPE) the worker will need (and which entity will provide it), including whether medical evaluation and fit testing for a respirator is required, and helps ensure that workers are not dispatched to the site who are not physically capable of performing all essential job functions. Third-party consultants, including some free services available through insurance companies, may also assist with this hazard assessment process if the parties lack in-house safety expertise. 2. Assign OSHA responsibilities to the appropriate employer and define the scope of work in the contract. The extent of the responsibilities will vary depending on workplace conditions and what the temporary worker will be doing. Someone operating power tools or working with forklifts will require significantly more training and monitoring than a temporary receptionist or mailroom clerk. In some cases the staffing agency is better suited to ensure compliance, but generally OSHA will hold the host employer primarily responsible for compliance as they will be assumed to have greater knowledge of the regulations relevant to their industry. It is also critical to properly document the assigned responsibilities in the contract or other worksite documents, and review the division of responsibilities regularly. 3. Injury and illness recordkeeping and reporting must be done according to federal OSHA requirements in 29 CFR Part 1904 (or the relevant State OSHA rules, if more stringent). If a temporary worker's death or severe injury is not timely reported, a mandatory minimum civil penalty of $5000 can be issued against one or both employers. Generally, if the host employer is providing direct supervision to the temporary worker, the temp's injury goes on the host employer's OSHA 300/301 logs. If the temporary agency sends a crew of workers along with a more highly compensated crew chief, then generally their injuries would go on the staffing agency logs, rather than the host's logs. OSHA considers "day-to-day supervision" as the entity that controls the means and manner of the temporary employees' work. OSHA specifically says that you cannot discharge or contract away responsibilities (including recordkeeping) that pertain to them under the law. The supervising employer must also have a method of reporting injuries/illnesses free from retaliation and must train workers on the reporting method and on their whistleblower protections. 4. Training is critical for temporary workers and new worker/new project orientation requires both site-specific and task-specific training in a language and vocabulary that the workers can understand. Keep in mind that some temp workers may also be illiterate and unable to comprehend written instructional materials, in which case the information will need to be communicated in another format. OSHA views worker training as a shared responsibility between the host employer and the staffing agency, where the agency provides generic training and the host does a deeper dive into specific worksite practices and task procedures. Training must also cover the use and maintenance of PPE that the temporary worker may require, including hearing protection, eye protection, and

• Cover