New Law Prohibits Mandatory Employment Arbitration Agreements

sign-document-agreement

After years of trying and rejections by former governors, a bill banning mandatory employment arbitration agreements in California has become law.

Gov. Gavin Newsom on Oct. 10 signed into law Assembly Bill 51, which prohibits almost all employment arbitration agreements, starting Jan. 1 next year. But because the new law conflicts with federal law, it will most certainly be challenged in court.

That said, because it is now the law of California, employers would be wise to understand just what it does and how they should change their employment policies and agreements to keep from running afoul of AB 51.

AB 51 broken down

The new law bars employers from requiring applicants, employees and independent contractors to sign mandatory arbitration agreements and waive rights to filing lawsuits if they file a complaint for:

  • Racial discrimination
  • Religious discrimination
  • National origin or ancestral discrimination
  • Disability discrimination
  • Sex or sexual orientation discrimination
  • Age discrimination
  • Discrimination based on pregnancy or related conditions
  • Sexual and other forms of harassment
  • Wage and hour issues
  • Other protections under the California Fair Employment and Housing Act (FEHA) and California Labor Code.

In addition, the bill creates a new private right of action under the state’s FEHA, meaning that a company that requires staff to sign a mandatory arbitration agreement could be subject to a lawsuit by that employee. This provision exposes California employers to another layer of costly litigation related to arbitration agreements.

And any employee who successfully challenges a violation of the law would also be entitled to attorneys’ fees.

Legal issues

One problem for this new legislation is that it may violate federal law, as former Gov Jerry Brown noted when he vetoed a similar bill in 2018. He said at the time: “Since this bill plainly violates federal law, I cannot sign this measure.”

Many legal analysts predict that AB 51 will be overturned once challenged in court on the grounds that is preempted by the Federal Arbitration Act (FAA), which would eventually invalidate the law.  Such a challenge could mean that the law’s validity may remain unsettled for some time.

The FAA was enacted in 1925 by Congress to ensure the validity and enforcement of arbitration agreements. State laws attempting to interfere with arbitration have been repeatedly and consistently struck down by the U.S. Supreme Court, as preempted by the FAA.

What you should do

AB 51 applies to contracts entered into, modified or extended on or after Jan. 1, 2020. If you require new employees to sign arbitration agreements, you could be at risk of violating the new law.

Do not consider including an opt-out clause in your agreements, as the bill prohibits employers from using voluntary opt-out clauses.

The best course of action is to contact your legal counsel to see if you should continue including mandatory arbitration agreements in new employment contracts, and also whether you need to modify any existing agreements you may have.

Harassment Training Deadline Pushed Back for Some Employers

harassment training

As you should already be aware, any employer with five or more workers is required to conduct sexual harassment prevention training for their staff by the end of 2019 under a California law passed in 2018.

Due to concerns that many employers in the state may not be ready to comply, Gov. Gavin Newsom has now signed a bill into law that extends the compliance deadline for some employers.

Under the new law, SB 778, all employees, both supervisory and non-supervisory, must be trained by Jan. 1, 2021, which extends the deadline by a year.

The original law, SB 1343, required all employers with five or more staff to conduct sexual harassment prevention training to their employees before Jan. 1, 2020 – and every two years after that.

Prior to the law that took effect in 2018, employers with 50 or more employees were required to provide only supervisors with anti-sexual harassment training every two years.

Here are the new rules:

  • If you trained your staff in 2019, you aren’t required to provide refresher training until two years from the time the employee was trained.
  • If you trained your employees in 2018, you can maintain the two-year cycle and still comply with the new January 1, 2021 deadline. For example, if you trained your staff in November 2018, you would not have to train them again until November 2020.
  • If you trained supervisors in 2017 under prior law, known as AB 1825, you should train those employees this year in order to maintain your two-year cycle.

The deadline was not extended for employers of seasonal and temporary employees, who are hired to work for less than six months. Starting Jan. 1, 2020, these employees must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.

The rest of the law remains intact:

  • Supervisors must receive two hours of training and non-supervisory employees must receive one hour.
  • Training must take place within six months of hire or promotion, and every two years thereafter.

The reason the new law has been enacted is that employers who trained their employees in 2018 would need to train them again in 2019, resulting in those individuals being trained twice within a two-year period, which went against the spirit of the law.

SB 778 was essentially clean-up legislation to correct that problem by extending the training deadline under SB 1343 from Jan. 1, 2020 to Jan. 1, 2021 for those employers.

Basics of a Strong Lockout/Tagout Program

Engineer check and control welding robotics automatic arms machine in intelligent factory automotive industrial with monitoring system software. Digital manufacturing operation. Industry 4.0

A lockout/tagout program will not be effective if your employees are not properly trained in how it works, and if you don’t have consequences for them if they fail to follow the program.

Every year, hundreds of workers in the United States die because they don’t follow lockout/tagout procedures or their employers did not have them in place – or, if they did, failed to enforce their rules.

Failure to train or inadequate training is one of the top-cited lockout/tagout violations by Cal/OSHA.

Improper training or failing to train all of your workers can have dire consequences, even for staff that are trained in procedures.

In this past year in California, two workers died because of inadequate training. One died on the job at a nut cannery because he had missed lockout/tagout training when he was on layoff.

In the other case, an employee at a clothing manufacturer was killed after a maintenance mechanic who had not been trained in lockout/tagout walked away when his co-worker entered part of the machine to remove finished product. The machine was de-energized but not locked out, and it started up when the worker entered it.

Under Cal/OSHA’s lockout/tagout standard, all authorized and affected employees, plus those who work in areas where energy-control procedures are used, must be trained on lockout/tagout procedures.

Training must include hazards related to:

  • Cleaning,
  • Repairing,
  • Servicing,
  • Setting up and adjusting prime movers, and
  • Machinery and equipment.

“Affected” employees include:

  • Qualified persons who lockout or tag out specific machines for such operations.
  • Those whose jobs require them to operate a machine. They must be instructed on the purpose and use of energy-control procedures.
  • Other employees include those whose work might be in an area where the procedures might be used. They must be instructed about the prohibitions on restarting or energizing machines that have been locked or tagged out.

HECP training requirements

The training provisions of the Cal/OSHA standard require that authorized employees be trained on hazardous energy control procedures (HECPs) and associated hazards.

Affected employees must be trained on the purpose and use of HECPs, and all other workers in the area must be instructed on the prohibition on attempting to restart machines which are locked or tagged out.

Pay especially close attention to training on controlling all sources of hazardous energy. That can sometimes require developing equipment-specific lockout procedures.

Turning off a machine is often not enough. It needs to be disengaged or de-energized. That’s because the control switch can still contain electrical energy. A release of stored energy can start the machine again briefly, but enough to cause serious injury.

If possible, you should also block out moveable parts during lockout/tagout procedures.

You also need to develop, implement and enforce a lockout program.

Cal/OSHA requires that employers must develop and utilize an HECP for cleaning, repairing, etc., and shall clearly and specifically outline the scope, purpose, authorization, rules and techniques to be utilized for the control of hazardous energy, and the means to enforce compliance, including:

  • Shutting down, isolating, blocking and securing machines or equipment;
  • Placement, removal and transfer of lockout/tagout devices;
  • Testing machines to determine the effectiveness of lockout/tagout devices; and
  • Separate procedural steps for safe lockout/tagout of each machine.

All workers involved in lockout/tagout should get their own locks. They should not use someone else’s lock, and they should not install or remove another employee’s lock.

One final bit of advice: Once a machine is locked out, the operator should try to turn it on again to see if it has been effectively disengaged.

Discipline Should Be Part of Your Safety Program

discipline red card

Does your injury and illness prevention program spell out the disciplinary action your company will pursue if its safety rules are not adhered to?

Addressing disciplinary issues can be a very sensitive and stressful process for most managers, supervisors and employees. However, if disciplinary issues are avoided or handled poorly, it can lead to serious consequences such as property damage, injury or even fatality.

Looking at discipline not as a form of punishment but as a rule or system of rules governing conduct or activity in order to eliminate unsafe circumstances, might ease the stress for the owner, manager and employee.

Education is the key to establishing proper disciplinary procedures and holding employees accountable to the company’s health and safety policy and program, as well as to applicable regulatory requirements.

The main objective of a disciplinary program is to ensure that rules and safe work practices are taken seriously by all employees and that they are followed. When disciplinary action is deemed appropriate, it should be conducted in a timely manner. Trying to conduct unsafe behavior by waiting only allows a habit to become more ingrained.

Discipline should be positive, not punitive or negative. The goal is to correct the problem, action or behavior. The type of discipline should fit the severity of the misconduct and be conducted in private.

Five-step Disciplinary Program Process

  • Reviewing policy and procedures (managers and supervisors)
  • Investigation of accusations and infractions (supervisors and safety & health reps)
  • Determining and reviewing disciplinary action (supervisors and safety & health reps)
  • Documenting disciplinary actions and program enforcement (supervisors and safety & health reps)
  • Conducting disciplinary meetings and promoting safe work practices and compliance to regulatory requirements (supervisors and safety & health reps)

If your company hires subcontractors, they should also be required to comply with your health and safety policy.

Sample disciplinary action

You should make it clear that the company reserves the right to discipline employees who knowingly violate company safety rules or policies. Disciplinary measures will include, but not be limited to:

  • Verbal warning (documented) for minor offenses.
  • Written warning for more severe or repeated violations.
  • Suspension, if verbal and written warnings do not prove to be sufficient.

If none of the above measures achieve satisfactory, corrective results, and no other acceptable solution can be found, the company will have no choice but to terminate employment for those who continue to jeopardize their own safety and the safety of others.

Non-punitive discipline

The first step of formal non-punitive discipline is to issue an “oral reminder,” with the manager’s primary goal being to gain the employee’s agreement to solve the problem.

Should the problem continue, the manager moves to the second step – the “written reminder.” Together, the manager and the employee create an action plan to eliminate the gap between actual and desired performance.

If disciplinary discussions have failed to produce the desired changes, management then places the individual on a paid, one-day “decision-making leave.” Tenure with the organization is conditional on the individual’s decision to solve the immediate problem and make a “total performance commitment” to good performance on the job.

The employee is instructed to return on the day following the leave with a decision either to change and stay or quit and find more satisfying work elsewhere. Thus, the purpose of the disciplinary transaction has changed from a punishment method to a process that requires individuals to accept responsibility for their own behavior, performance and continued participation in the enterprise.

Cal/OSHA Issues Emergency Rules to Protect Workers from Wildfire Smoke

wildfire

Cal/OSHA has issued emergency regulations that require employers of outdoor workers to take protective measures, including providing respiratory equipment, when air quality is significantly affected by wildfires.

Smoke from wildfires can travel hundreds of miles and while an area may not be in danger of the fire, the smoke can be thick and dangerous, reaching unhealthy levels. The danger is worst for people with underlying health conditions like heart disease, asthma or other respiratory issues.

Cal/OSHA decided to start work on the new regulations after worker groups filed a petition asking the agency to step in and protect people working outside from unsafe air quality caused by wildfires.

Below is all you need to know about the new emergency regulations that are slated to take effect in early August 2019.

What to expect

The draft of the regulations, which were approved at a July 18 Cal/OSH board hearing, would require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range.

The protections would also be triggered when a government agency issues a wildfire smoke advisory or there when there is a “realistic possibility” that workers would be exposed to wildfire smoke.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:

Checking the Air Quality Index – Employers of outdoor works must check the AQI at the worksite to see if it is above 150, which would require the employer to take protective measures for the workers. AQI can be checked in the following ways:

  • The U.S. Environmental Protection Agency’s AirNow website.
  • The California Air Resources Board website.
  • Your local air pollution control district website.
  • Checking PM2.5 levels at the worksite and converting them to the corresponding AQI (Appendix A of the regulations explain how).

Communications – Employers must establish and implement a system for communicating wildfire smoke hazards to affected employees, including allowing employees to inform the employer of such hazards at the worksite. Communications should include:

  • The current AQI for PM2.5.
  • Protective measures available to workers to reduce their wildfire smoke exposure.
  • Encouraging employees to inform the employer of worsening job site air quality.
  • Reporting symptoms such as asthma attacks, difficulty breathing and chest pain.

Training – Employers with outside works should train them in:

  • The health effects of wildfire smoke.
  • The right to obtain medical treatment without fear of reprisal.
  • How employees can obtain the current AQI for PM2.5.
  • The requirements in Cal/OSHA’s regulation about wildfire smoke.
  • The employer’s communication system.
  • The employer’s methods to protect employees from wildfire smoke.
  • The importance, limitations and benefits of using a respirator when exposed to wildfire smoke.
  • How to properly put on, use and maintain the respirators provided by the employer.

Suitable protection – There are a number of methods employers can implement to protect workers when the AQI for PM2.5 exceeds 150.

  • Engineering controls, such as providing enclosed structures or vehicles with effective filtration where employees can continue working, or
  • Administrative controls like:
  • Relocating workers,
  • Changing work schedules,
  • Reducing work intensity, or
  • Giving them additional rest periods, or
  • Respiratory protective equipment. The employer must provide respirators to all employees for voluntary use, and encourage them to use them.

Respirators shall be NIOSH (National Institute for Occupational Safety and Health)-approved devices that effectively protect the wearers from inhalation of PM2.5, such as N95 filtering face-piece respirators. Respirators shall be cleaned, stored, maintained and replaced so that they do not present a health hazard to users.

Where the current AQI for PM2.5 is 501 or greater, respirator use is required.

Why Workers’ Comp Claims Spike in the Summer

Construction Site

Workplace injury rates rise during the summer months. When summer rolls around, companies in many sectors, including agriculture and construction, significantly increase production.

Increased road construction raises risks for workers and drivers. Many of the newly hired workers are young and inexperienced, creating a high potential for workplace injuries.

Toiling in the sun is also a leading cause of weather-related injuries, including heatstroke, heat cramps and heat exhaustion. Heat illnesses occur when the body overheats to the point it cannot cool off, even with profuse sweating.

Young workers

Too often, young workers enter the workforce with little or no on-the-job safety training, heightening safety risks.

Recently, the Washington State Department of Labor & Industries released a report showing that teens are twice as likely to be hurt on the job as adults.

In Washington state, a total of 547 youths aged 17 and under were injured in the workplace in 2014, up nearly 14.7% over the previous year. Of the total, 173 were in the food and hospitality industries. The next largest total, 80, was reported in both the retail trades and agriculture.

Falls to the floor increased 77%, to 55 cases, as the chief cause of injury.

Young workers, aged 14 to 24, have more accidents because they lack the knowledge, training, and experience to prevent them. Some common issues employers encounter with young workers are:

  • They do not understand what can go wrong.
  • They do not always follow the rules.
  • They fail to use personal protective equipment (PPE) or use it incorrectly.
  • They horse around on the equipment.
  • They do not ask questions.
  • They think they are infallible.

It’s also important for supervisors to recognize the physical, cognitive and emotional developmental differences between young and adult workers. It takes extra effort to train and supervise seasonal employees on working safely.

Here are some training suggestions:

  • Repeatedly demonstrate job procedures and safety precautions. Don’t overlook the basics, such as starting and stopping equipment.
  • The step-by-step instructions for any task must include the task’s hazards and how to avoid them. Take the time to clearly explain the risks of not following the proper steps. Use examples.
  • Explain when and how to use PPE, as well as where to get it, how to inspect it, and how to remove and store it properly.
  • Train one-to-one with young workers and observe them performing tasks.
  • Encourage them to report problems and to ask questions.
  • Assign specific clean-up tasks and emphasize the importance of a clean, clutter-free worksite.
  • Control the hours worked. Many popular summer jobs, such as construction workers, landscapers, and jobs in hospitality and food industries, require long hours of work in the heat that can lead to fatigue, inattention, and stress, increasing the likelihood of injury.
  • Provide a mentor.
  • Demonstrate that safety is a priority at your facility. Words aren’t enough. New workers also need to see actions that reinforce the message: clean worksite, properly labeled hazardous substances and readily accessible safety data sheets, workers wearing required PPE and who are concerned about workplace safety and show it, and so on.

Heat illness dangers

While there are many excellent resources on dealing with heat, it’s important for employers to recognize that there are individual differences among workers and those who are struggling may be hesitant to complain.

The American Society of Safety Engineers calls heat the “unseen danger” at construction sites because the symptoms of heat illness can be subtle and misinterpreted as mere annoyances rather than signs of a serious health issue.

Workers new to outdoor jobs are particularly vulnerable. Implementing an acclimatization program, providing adequate water and frequent breaks are all critical, but the best way for employers to prevent heat illnesses is to consistently interact with workers to gauge how they’re feeling and provide current information on weather conditions.

Also, using apps, such as OSHA’s Heat Safety Tool, is a good way for workers to monitor their risk levels.

Cal/OSHA Working on Rules to Protect Outdoor Workers from Wildfire Smoke

wildfire

Cal/OSHA is developing regulations that would require employers of outdoor workers to provide respiratory equipment when air quality is significantly affected by wildfires.

Smoke from wildfires can travel hundreds of miles and while an area may not be in danger of the wildfire, the smoke can be thick and dangerous, reaching unhealthy levels. The danger is worst for people with underlying health conditions like heart disease, asthma or other respiratory issues.

Many employers want to hand out respirators to outside workers, but while there are no regulations or laws in place for how to protect your workers during smoky conditions, there are regulations governing the use of ventilators – and they are very specific.

The California Code or Regulations, Title 8, Section 5144 states requires that employers that distribute respirators to their employees must take certain steps, such as implementing a written respiratory protection program, requiring seal-testing before every use and conducting medical evaluations of all workers who will wear a respirator.

Cal/OSHA decided to start work on the new regulations after worker groups filed a petition asking the agency to step in and protect people working outside from unsafe air quality caused by wildfires.

What to expect

The regs are still in draft form and are unlikely to be completed this summer for the upcoming fire season. But here is what you can expect:

The draft of the regulations would require that employers take action when the Air Quality Index (AQI) for particulate matter 2.5 is more than 150, which is considered in the “unhealthy” range.

The protections would also be triggered when a government agency issues a wildfire smoke advisory or there when there is a “realistic possibility” that workers would be exposed to wildfire smoke.

All California employers with “a worker who is outdoors for more than an hour cumulative over the course of their shift” would be required to comply with these regulations:

  • Checking AQI forecasts when employees may reasonably be expected to be exposed to an AQI or more than 150.
  • Establishing a system of communication with employees to inform them about the AQI, changes in conditions that can lead to bad air quality, and protective measures.
  • Training their workers in the steps they would have to take if the AQI breaches 150.
  • First-line protections that employers could implement include:
    • Engineering controls, such as providing enclosed structures or vehicles with effective filtration where employees can continue working.
    • Administrative controls like:
      • Relocating workers,
      • Changing work schedules,
      • Reducing work intensity, or
      • Giving them additional rest periods.
  • If none of the above are feasible, the rule provides for a voluntary respirator (without fit-testing and medical examinations) use when the AQI is between 150 and 300.
  • If the AQI is above 300, fit-testing and a medical examination prior to use would be mandatory.

The new regulations by Cal/OSHA are pending with the Cal/OSHA Standards Board, which is expected to vote on them in July, but it’s unclear how quickly they would be implemented.

For now, if you do have outside employees who are confronted with working in smoky conditions, you should start stockpiling a two-week supply of N95 masks for all of your workers.

A New Approach to Preventing Workplace Injuries

Metal Roof Roll Forming Machine

While overall workplace injuries have been falling in the last decade, the numbers of deadly and catastrophic injuries are actually on the rise.

A new report recommends that employers focus their injury prevention efforts on reviewing accidents that could have resulted in serious injury or death, as well as on near misses, where a potentially serious accident was narrowly avoided.

The “Serious Injury and Fatality Prevention: Perspectives and Practices” report, by the Campbell Institute, recommends that employers focus on their internal processes that could lead to serious injuries and fatalities, rather than on human error itself.

They should focus on identifying and fixing holes in their safety management system, examine their workplace culture, and change or modify work processes so as to eliminate the chances of human error affecting safety.

The report recommends that organizations don’t put the blame on the injured worker, but instead take a look at internal factors that contributed to an accident. To identify events or near events that could have led to serious injury or death, the prevention model in the report recommends focusing on and studying:

  • Precursors to accidents
  • Near misses
  • All recordable injuries

By identifying potential precursors to such events and educating employees about those precursors, companies can focus on eliminating the potential for accidents to occur in the first place.

One key component of this method is to identify which smaller accidents or near misses had the most potential to inflict serious injury or death.

Recommendations

Establish a system for reporting near misses. Consider:

  • Addressing issues such as workers being afraid of the consequences of reporting a near miss. Try to instill trust among your workers that they won’t be punished for a near miss, and that reporting them can help prevent future serious injuries.
  • Define what constitutes a near miss.
  • Include near-miss training during new employee orientations.
  • Get buy-in from management and supervisors to foster a culture of reporting near misses.
  • Make reporting simple and straightforward.
  • Make sure that your investigation includes a precise log of what led up to the near miss, as well as the root cause.
  • Take corrective action after conducting the investigation.

When rolling out the plan, hold a safety meeting explaining to employees why the company is focusing on the smaller incidents and near misses, and how a minor incident can turn major. Explain the importance of looking at potential rather than actual outcomes for minor incidents.

Try to be innovative in how you tackle workplace safety. For example, an article in Risk and Insurance magazine looked at a number of large employers that have worked with the criminology departments of nearby colleges to analyze injuries and near misses, in order to help identify what they could have done to prevent them.
The magazine’s report found that employers that used this method saw significant reductions in the number of workplace injuries they experienced.

Protect Outdoor Workers Against the Elements of Winter

If you have outdoor workers or staff that will have to venture out into the elements during an especially cold winter, you need to make sure you are taking the correct precautions to keep them safe.

If the conditions are extremely harsh, your workers are at heightened danger of injury, or worse. But even if you have employees who are outside for short periods, they can also suffer injuries if they are not prepared.

The many dangers of winter

Winter can bring with a number of dangers to your outdoor workers:

  • Cold or frigid temperatures
  • High winds
  • Damp air
  • Slippery surfaces
  • Contact with water
  • Frostbite
  • Hypothermia
  • Risk of strains, slips and falls
  • Dehydration
  • Decreased performance

OSHA has the following recommendations for protecting your workers:

Check the forecast – A supervisor should check the forecast for the next day before the end of the shift the day prior, to alert workers about any precautions they should take.

Appropriate clothing – Workers should have proper clothing suited for working in cold-weather conditions. Clothing from thermal underwear to gloves and jackets are the first line of defense against cold weather. Consider these tips for your employees:

  • Wear three layers of clothing. Start with insulating underwear – which traps perspiration – a middle layer that protects the body from precipitation, and an outer layer that allows ventilation and prevents overheating.
  • Cotton is not always a good choice. Wool, silk and some synthetic fabrics are better at keeping skin dry even when it’s raining or the worker is sweating.
  • Wear loose clothing. Tight clothing can trap moisture and lower body temperature.
  • Protect your extremities. That means head, hands and feet. Wear a warm cap or hat, insulating gloves and two pairs of socks and insulated shoes.
  • Carry an extra set of clothing in case something happens and a worker has to change.

Train workers – They should be trained on how to prevent and recognize cold-stress illnesses and injuries, and how to apply first aid treatment. Workers should be trained on the appropriate engineering controls, personal protective equipment and work practices to reduce the risk of cold stress.

Workers should be aware of their body signals – Teach your employees about the symptoms of frostbite, hypothermia and dehydration and report any symptoms they are experiencing to supervisors, who should know how to summon help and protect the worker.

The symptoms of hypothermia are:

Mild symptoms:

  • The worker may begin to shiver and stomp their feet in order to generate heat.

Moderate to severe symptoms:

  • As the body temperature continues to fall, symptoms will worsen and shivering will stop.
  • The worker may lose coordination and fumble with items in the hand, and become confused and disoriented.
  • They may be unable to walk or stand.
  • Dilated pupils.
  • Slowing pulse and breathing.
  • Loss of consciousness can occur.
The symptoms of frostbite are:
  • Reddened skin develops gray/white patches.
  • Numbness in the affected body part.
  • The affected part feels firm or hard.
  • Blisters may occur in the affected part, in severe cases.

Eat healthy, stay hydrated – Employers should stress the importance of a healthy diet to help workers power through harsh weather. They should be told to regularly drink warm water or warm sweetened fluids throughout the day.

Ask that they always eat breakfast before working outside, to give the body the fuel it needs. Also ask them to avoid excessive drinking the night before work.

OSHA Stays Serious About Temp Worker Safety

While the Trump administration has eased off a number of regulations and enforcement actions during the past two years, Fed-OSHA continues focusing on the safety of temporary workers as much as it did under the Obama presidency.

This puts the onus not only on the agencies that provide the temp workers, but also on the companies that contract with them for the workers.

As evidence of its continued focus on temp workers, OSHA recently released guidance on lockout/tagout training requirements for temporary workers. This was the third guidance document released in 2018 and the 10th in recent years that was specific to temp workers.

One reason OSHA is so keen on continuing to police employers that use temporary workers, as well as the staffing agencies that supply them, is that temp workers are often given some of the worst jobs and possibly fall through the safety training cracks.

OSHA launched the Temporary Worker Initiative in 2013. It generally considers the staffing agency and host employer to be joint employers for the sake of providing workers a safe workplace that meets all of OSHA’s requirements, according to a memorandum by the agency’s office in 2014 to its field officers.

That same memo included the agency’s plans to publish more enforcement and compliance guidance, which it has released steadily since then.

Some of the topics of the temp worker guidance OSHA has released since the 2014 memorandum include:

  • Injury and illness record-keeping requirements
  • Noise exposure and hearing conservation
  • Personal protective equipment
  • Whistleblower protection rights
  • Safety and health training
  • Hazard communication
  • Bloodborne pathogens
  • Powered industrial truck training
  • Respiratory protection
  • Lockout/tagout

Joint responsibility

OSHA started the initiative due to concerns that some employers were using temporary workers as a way to avoid meeting obligations to comply with OSHA regulations and worker protection laws, and because temporary workers are more vulnerable to workplace safety and health hazards and retaliation than workers in traditional employment relationships.

With both the temp agency and the host employer responsible for workplace safety, there has to be a level of trust between the two. Temp agencies should come and do some type of assessment to ensure the employer meets OSHA standards, and the host employer has to provide a safe workplace.

Both host employers and staffing agencies have roles in complying with workplace health and safety requirements, and they share responsibility for ensuring worker safety and health.

A key concept is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example: staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards.

Successful joint employer relationship traits

  • The key is communication between the temp agency and the host to ensure that the necessary protections are provided.
  • Staffing agencies have a duty to inquire into the conditions of their workers’ assigned workplaces. They must ensure that they are sending workers to a safe workplace.
  • Ignorance of hazards is not an excuse.
  • Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at the host employer, what hazards may be encountered, and how best to ensure protection for the temporary workers.
  • The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.
  • And, just as important, host employers must treat temporary workers like any other workers in terms of training and safety and health protections.

For a look at all 10 of the guidance documents OSHA has issued in the last few years, visit the agency’s temp worker page: www.osha.gov/temp_workers/