Focusing on Temp Workers’ Safety

November 25th, 2016

With the U.S. staffing market set to grow to record sizes in the coming years, the industry is rolling out a major initiative aimed at boosting worker safety.

By Julie Cook Ramirez

Wednesday, November 16, 2016

The staffing industry has come a long way since William Russell Kelly coined the iconic term “Kelly Girl” to describe his legions of bright young women eager to take on short-term secretarial and clerical assignments in downtown Detroit beginning in 1946. These days, more than 3 million temporary and contract workers are employed by America’s staffing companies, working part-time and full-time in virtually all occupations in all sectors, including professional/managerial; clerical/administrative; engineering/information technology/scientific; health care; and industrial.

The U.S. staffing market was projected to grow 6 percent in both 2016 and 2017 to reach a record revenue of nearly $150 billion, according to an April 2016 update from Mountain View, Calif.-based Staffing Industry Analysts. Along with that growth have come concerns over temp worker safety, as the industry has evolved to encompass jobs in which injuries are more common.

“Safety hazards don’t care if you are full-time, part-time, or a temp,” says Howard Mavity, a partner in the Atlanta office of Fisher & Phillips and founder and co-chair of the firm’s workplace safety and catastrophe management practice group. “Often, temps present the biggest safety threat because they are very much eager beaver types who are pushing to do more. The supervisor may not realize these [individuals] don’t have the same safety background [as a traditional employee] and that’s how some of the more terrible death cases have occurred.”

The very nature of temp work is often problematic because host companies don’t realize safety training is necessary for this particular population, Mavity says. Or they have a hard time justifying the expenditure when the person in question may only be on the job for a short time.

“It does catch a lot of employers off guard and it’s pretty rough because if they’re going to bring someone on for just a few days, they may spend a disproportionate amount on training,” says Mavity.

In 2014, the Arlington, Va.-based American Staffing Association approached the Itasca, Ill.-based National Safety Council to help develop and administer a program focused on temporary worker safety. The partnership resulted in the Safety Standard of Excellence program, launched in October.

The program is designed to help reduce the rate and severity of temporary worker injuries, illnesses, and fatalities through the adoption of best practices and encouragement of continuous safety improvement. One key facet of the SSE is an increased focus on coordination and collaboration between staffing firms and host employers.

This begins with an upfront conversation about the staffing firm’s expectations with regard to safety, according to Amy Harper, NSC Journey to Safety Excellence and workplace strategy director. Typically, she says, the staffing firm is responsible for general safety training, such as hazard communication and blood-borne pathogens, while the host employer bears responsibility for site-specific and job-specific training. Such responsibilities must be clearly delineated in a written contract, according to Stephen Dwyer, general counsel for the American Staffing Association.

“The burden on the host employer is to ensure the temp is trained and works safely,” says Mavity. “If OSHA comes onsite and the temp hasn’t been adequately trained, they may cite the staffing provider, but they are principally going to go after the person directing the work.”

When it comes to inherently dangerous jobs, employers may want to reconsider relying on temps at all, says Dave DeSario, founding member of the Brooklyn-based Alliance for the American Temporary Workforce and executive producer of A Day’s Work, an award-winning documentary on temporary work. He cites figures from the Bureau of Labor Statistics, stating that temporary workers accounted for 782 workplace deaths (nearly 17 percent) in 2014, often because they are “sent to do the dirtiest and most dangerous jobs,” he says. (According to the BLS, 734 contract workers died as a result of work-related injuries in 2013, up from 715 in 2012 and 542 in 2011, when the agency first started tracking such figures.)

 

DeSario recently participated in a media briefing with the San Diego-based National Council for Occupational Safety and Health focused on the claim that temp workers are not only at a significantly greater risk of injury or death, but that the staffing industry is more focused on boosting its image than temp safety. He cites specific language in the SSE program guide related to the purpose of enhancing “the image of the industry with respect to job seekers, staffing clients, the government and media.”

“On the outside,” DeSario says, “this program appears to be for the purpose of protecting workers, but it’s all about enhancing the image of the industry. That’s really worrisome because more workers are going to be injured and killed because they falsely believed it was safer than it really was.”

Dwyer, however, bristles at DeSario’s accusations, countering that the SSE is merely the latest in a long line of initiatives aimed at ensuring safe working conditions for temporary employees. He points to numerous ASA-created books, newsletter and magazine articles, videos, and speaking engagements, all focused on educating staffing firms and host employers of their responsibilities to keep temp workers safe. ASA has also formed an employee safety committee comprised of safety experts from its member companies and established an employment law certification program through which member staffing firms demonstrate their mastery of employment and occupational safety concepts.

“These associations and their core employers take the issue of temp worker safety seriously,” says Mavity. “They not only comply with OSHA requirements, but propel other companies to do the same, so these initiatives are usually a force multiplier. You get good bang for your buck on them.”

“OSHA Clarifies Limits on Post-Accident Drug Testing and Safety Incentive Programs” Published on October 27, 2016

October 27th, 2016

Published on October 27, 2016

The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining “in more detail” two provisions added to the recordkeeping regulation: Section 1904.35(b)(1)(i) requiring “employers to have a reasonable procedure for employees to report work-related injuries and illnesses”; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses.

As we have previously reported, OSHA identified post-accident drug testing and safety incentive plans as programs that may result in impermissible retaliation against employees who report injuries when the amendments to the recordkeeping regulation were issued on May 12, 2016.

Section 1904.35(b)(1)(i)—“Reasonable” System for Reporting

Section 1904.35(b)(1)(i) requires employers to implement a “reasonable” system for employees to use for reporting work-related injuries and illnesses. The guidance adds little to the explanation included when OSHA issued the original amendments to the recordkeeping regulation. OSHA reiterates that employers must give employees a “reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner.” A procedure requiring employees to report “as soon as practicable after realizing” they are injured is “reasonable,” but it would not be “reasonable” to discipline employees for “failing to report before they realize they have a work-related injury” or “for failing to report ‘immediately’ when they are incapacitated because of the injury or illness.”

Section 1904.35(b)(1)(iv)—Retaliation

When it issued the final amendments to the regulation, OSHA identified three policies that “can be used to retaliate against workers for reporting work-related injuries or illnesses and therefore discourage or deter accurate recordkeeping: disciplinary policies, post-accident drug testing policies, and employee incentive programs.” Section 1910.35(b)(1)(iv) is not “prohibiting these kinds of policies categorically” and “does not impose any new obligations or restrictions on employers.” Instead, the provision simply “gives OSHA another mechanism to address conduct that has always been unlawful” under Section 11(c) (the whistleblower provision) of the Occupational Safety and Health Act (OSH Act): “retaliating against employees for reporting work-related injuries or illnesses.”

To prove a violation of Section 1904.35(b)(1)(iv), OSHA must show:

  1. “The employee reported a work-related injury or illness”;
  2. “The employer took adverse action”— “action that would deter a reasonable employee from accurately reporting a work-related injury or illness”; and
  3. “The employer took the adverse action because the employee reported a work-related injury or illness.”

“OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason,” which will be a “fact-specific inquiry.”

When Will Post-Accident Drug Testing Be Deemed Retaliatory?

Post-accident drug and alcohol testing is not prohibited. Rather, Section 1904.35(b)(1)(iv) prohibits post-accident testing only when the employee reports an injury and a test is conducted “without an objectively reasonable basis.” The “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed.” The factors OSHA will consider will include whether “other [non-injured] employees involved in the incident” are tested and whether the employer “has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed.”

OSHA provides an example: A crane accident injures several employees working nearby but not the operator. Given the facts, “there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition.” Testing all of the involved employees is “appropriate,” while testing only the injured employees “would likely violate section 1904.35(b)(1)(iv).” Testing an employee “whose injury could not possibly have been caused by drug use”—such as a repetitive motion strain—“would likely not be objectively reasonable.

Finally, OSHA clarifies a troubling issue regarding the type and timing of the test. OSHA originally stated that the test must measure impairment at the time of the injury. OSHA now says it “will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.” “OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.” In light of this language, employers can discipline employees based on positive drug tests for marijuana and other drugs where the test is not capable of measuring the level of impairment at the time of the injury.

When Will Safety Incentive Programs Be Deemed Retaliatory?

Safety incentive programs only violate Section 1904.35(b)(1)(iv) to the extent a benefit—“such as a cash prize drawing or other substantial award”—is taken away because an employee reported an injury or illness. “Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.”

OSHA offers the following example of a program that would likely violate Section 1904.35(b)(1)(iv): A raffle for a $500 gift card at the end of “each month in which no employee sustains an injury that requires the employee to miss work.” If the raffle is canceled “simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute an adverse action against an employee simply for reporting a work-related injury.”

What Does It Mean For Employers?

The guidance offers several key takeaways for employers. First, although OSHA does not say it specifically, the guidance seems to confirm that safety incentive programs and post-accident drug testing policies potentially violate the anti-retaliation provision (Section 1904.35(b)(1)(iv)) rather than the “reasonable” reporting provision (Section 1904.35(b)(1)(i)). This means that the mere existence of a program is not enough to violate the regulation even though it may deter employees from reporting. Instead, OSHA must show a specific instance of retaliation against an employee.

For example, an employer may maintain a post-accident drug testing policy that requires drug testing whenever an employee requires medical treatment. Although an employee may decide not to report an injury for fear of a drug test, the program—in a vacuum—does not violate the regulation. Rather, a violation exists if OSHA can show that an employee: 1) reported an injury; 2) was drug-tested with no reasonable basis, such as following a report of a repetitive motion strain; and 3) the employer had no legitimate business reason for conducting the test and administered it solely because the employee reported the injury. Thus, employers may maintain their post-accident testing policies but may have to exercise discretion in administering them. The same analysis would apply to a safety incentive program that takes away a benefit when too many injuries occur—the program is permissible as long as it is administered so that it does not retaliate against individual employees who report work-related injuries or illnesses.

Second, OSHA did not specifically address the types of safety incentive programs described in the August 14, 2014 memorandum concerning companies in the Voluntary Protection Program (VPP). The VPP memorandum describes “blended” programs that include a component based on meeting injury and illness rate goals. Given that OSHA did not address these types of programs, the assumption is that they do not violate the anti-retaliation provisions in Section 1904.35(b)(1)(iv).

Third, OSHA provides no guidance on when withholding a particular benefit constitutes adverse action. Employers may schedule events when a facility or team of employees meets a certain injury and illness rate goal. OSHA clearly believes that withholding the opportunity to win $500 in a raffle is significant enough to constitute adverse action but declines to address celebrations of safety milestones through pizza parties and the like.

Finally, OSHA did not address—at least not explicitly—programs based on more significant injuries and illnesses. A safety incentive program based upon avoiding fatal injuries for some period of time does not violate the anti-retaliation provisions because an employee does not “report” a fatality. The same may be said for certain types of significant injuries. An employee who breaks his or her leg and leaves the facility in an ambulance has not reported the injury—the injury is evident.

In contrast, an employee who contracts tuberculosis from an exposure at work or a repetitive motion strain that requires surgery could elect to take time off and receive treatment without reporting the injury or illness as work-related. If the employee chooses to report the injury or illness and loses a benefit, such as the opportunity to win $500 in the raffle, then the employer has potentially violated Section 1904.35(b)(1)(iv). The adverse action must be based on an employee “report” of an injury. Programs based on injuries or illnesses resulting in lost time may or may not pass muster depending upon whether the employee actually “reports” the injury that leads to the loss of a benefit.

Source: Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Employers Warned Not to Use Drug Tests to Deter Injury Reporting

June 17th, 2016

The U.S. Occupational Safety and Health Administration could cite employers who use post-incident drug testing policies to retaliate against employees reporting injuries and illnesses under the agency’s electronic record-keeping rule, according to an agency official.OSHA’s Improve Tracking of Workplace Injuries and Illnesses rule does not ban employee incentive programs or drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in May. The rule takes full effect Jan. 1, 2017, but its anti-retaliation provisions, which establish a new, citation-based pathway for employee complaints, go into effect on Aug. 10. “It does not ban specific programs,” Amanda Edens, deputy director, OSHA’s Directorate of Standards and Guidance, told members of the National Advisory Committee on Occupational Safety & Health in Washington, on Wednesday. But if employers are using post-incident drug testing policies as a “distinct pre-text for retaliating” against employees reporting injuries and illnesses, those are the types of situations the agency would “take a careful look at in terms of whether or not we would issue a citation, but in general we are not banning drug testing programs.”Stakeholders objecting to the rule have speculated that the agency will attempt to cite employers who mandate post-accident drug testing without a compelling reason, such as a federal or state law or regulation that requires such testing.

OSHA Issues Recordkeeping Guidance for Temporary Staffing Firms

April 10th, 2014

As part of the previously announced temporary worker initiative, the Occupational Health & Safety Administration (OSHA) will be releasing guidance documents pertinent to issues in the temporary staffing industry. Recently, the first of these documents was released and focused specifically on recordkeeping requirements. OSHA requires all employers to maintain an OSHA 300 log. This log is used to record all injuries and illnesses that have medical treatment above and beyond first aid, need modified duty or require days away from work. At the end of each year, the number of injuries is totaled and the number of hours worked is added onto the OSHA 300A form, which is posted from February 1–April 30 of the following year. The OSHA 300 log and 300A form are used to calculate incident rates, which are often used for bids or internal loss trending. Who’s responsible for recording temporary worker injuries? The OSHA standards state that whoever is providing the day-to-day supervision is the employer that needs to record those injuries. Day-to-day supervision occurs when the “employer controls conditions presenting potential hazards and directs the worker’s activities around, and exposure to, those hazards.” In most cases, this is the host employer. Even in cases where the temporary staffing agency has an on-site supervisor, since the host client controls the conditions, the responsibility of recordkeeping would still fall on the host client. Continuing with OSHA’s previous statements, the guidance document reminds temporary staffing agencies that while they’re generally not responsible for the actual recordkeeping, it’s still their responsibility to ensure injuries are being properly reported and recorded. The full document issued by OSHA can be found here. – https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=25737

OSHA Urged to Launch Temporary Worker Emphasis Program Occupational Health & Safety (11/05/13)

November 6th, 2013

The U.S. Occupational Safety and Health Administration’s assistant secretary, Dr. David Michaels, has received 15 recommendations from a coalition of workplace safety groups that urge the agency to improve safety and health conditions for temporary workers. OSHA is preparing a proposal that would mandate that companies publicly post summary data from their log of work-related injuries. The top two recommendations regard delineating health and safety responsibilities in dual-employer settings.         |          Full Story Available