By: Joseph L. Hardesty & Zachary D. Jones
Kentucky is one of twenty-two states that have adopted a “State OSHA Program.” That does not, however, mean that federal Occupational Safety and Health Administration, aka “OSHA,” regulations do not apply to employers in the Commonwealth. To the contrary, State OSHA Programs, like that operated by Kentucky, are required by law to ensure their “job safety and health standards are ‘at least as effective as’ comparable federal standards.” Therefore, employers in Kentucky need to pay close attention to OSHA regulations, training, and enforcement initiatives. To that end, employers in Kentucky should be aware that OSHA has undertaken a new initiative.
OSHA’s new initiative is aimed at protecting temporary workers. Last April, OSHA issued a memorandum to its regional administrators asking them to focus on the safety of temporary workers. The memorandum was prompted by a series of reports of temporary workers suffering serious injuries during the first days on a jobsite. The OSHA initiative is intended to ensure that temporary employees are protected from workplace hazards and are provided appropriate training in a language that they understand. OSHA’s rationale for the initiative is that temporary workers are at greater risk of workplace injuries and illnesses because they often occupy the most hazardous jobs on the worksite, they often lack proper training and they tend to be less proficient at speaking English.
OSHA identifies temporary workers as those who are working under a host employer / staffing agency employment structure where the temporary worker is supplied to a host employer and paid by a staffing agency. As a result of this initiative, OSHA inspectors will be determining whether an employer hires temporary workers and whether those workers receive required training in a language and vocabulary they understand.
An example of OSHA’s enforcement of workplace rules for temporary workers is with its recent citation of Henkel Corporation. On September 10, 2013, OSHA cited Henkel for $200,825 for multiple serious and willful violations following the death of a 26-year-old temporary worker who became entangled with the rotating shaft of an industrial mixer. One of the serious violations issued against Henkel was for its alleged failure to ensure that the sleeves on employee coveralls fit tightly so clothing would not get caught in machinery. This is an example of OSHA citing employers for injuries or death to temporary workers provided by a staffing agency.
Employers who use temporary employees should be aware that, regardless of the terms of its contract with the temporary placement agency, OSHA will consider the host employer to be responsible for ensuring that its temporary employees have been properly trained and are aware of safety and health hazards on the construction site. Also, OSHA will likely require the host employer to provide health and safety training to all employees, no matter whether they are from a temporary employment agency or not. OSHA requires that the training be provided in the language and vocabulary the temporary worker can understand.
Therefore, the host employer should: 1) ensure that either it or the temporary staffing company provides adequate safety training to the temporary employee; 2) translate its written training materials so that they are in the temporary employee’s native language; 3) enforce the safety rules with temporary employees in the same manner they are enforced with regular employees; and 4) maintain injury and illness records required by OSHA for the temporary employees.