Following the recent shift in power after the midterm elections in November, much uncertainty remains as to whether the Occupational Safety and Health Administration (OSHA) will continue its aggressive agenda of an enhanced enforcement, increasing citations and greater penalties or whether the new Congress will result in a softer, watered-down OSHA. Nobody knows, and we can only speculate.
An employer’s obligation to furnish a workplace free from recognized hazards is not limited to its own employees. Rather, under the agency’s “multi-employer worksite doctrine,” OSHA will issue citations not only to employers who expose their own employees to a hazardous condition (“exposing employer”), but also to employers who:
- Created the hazardous condition (“creating employer”);
- Exposed the employee to the hazard;
- Were responsible for correcting the hazardous condition but failed to (“correcting employer”); or
- Had the ability to prevent, abate or correct the hazardous condition through the exercise of reasonable supervisory authority (“controlling employer”).
The past several years have seen an increase in OSHA using the multi-employer worksite doctrine to issue citations to numerous employers based on a single incident, and I expect that this will continue into 2015. Thus, employers who work with staffing agencies must not only ensure that their programs are adequate and their employees are trained; they also must ensure that employees from staffing agencies also adhere to OSHA’s standards. This liability is significant and can result in citations as well as criminal liability in the event of a fatality.
In 2014, OSHA implemented an initiative to protect temporary employees under the premise that those workers are not provided the same level of training and protections as full-time employees. Under this initiative, OSHA inspectors are required to inquire during inspections whether the inspected worksite has temporary employees and determine whether those employees are exposed to hazardous conditions. Moreover, during the inspection, OSHA also will inquire as to whether the training provided to the temporary workers is in a language and vocabulary the workers can understand.
If OSHA determines that the host employer failed to provide adequate training or protections to the temporary employees, then OSHA could issue citations not only to the temporary staffing agency but also to the host employer under the multi-employer worksite doctrine. To enforce this initiative, OSHA has hired compliance officers who are bilingual (or certified interpreters) to conduct employee interviews to determine whether they understood the training. If the training was in English and the employee is not fluent in English, then the training is not “effective” and the employer can be cited.
In healthcare, expect OSHA to continue to use the general duty clause to aggressively enforce citations related to:
• Workplace violence,
• Ergonomics and
• Infectious diseases (Ebola).