Don’t Wait for a Citation

Responsibilities for Protecting Temporary Workers and Independent Contractors.

By Linda Otaigbe

The Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) both have requirements for how employers should protect independent contractor employees and temporary employees from safety and health hazards. The obligations, as they pertain to safety training, are outlined below.

Production-Operators’ Obligations to Independent Contractor Employees. Under 30 CFR § 45.2, an “independent contractor” is defined as “any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a mine.” Production-operators are defined as “any owner, lessee, or other person who operates, controls or supervises a coal or other mine.” MSHA states in its Program Policy Manual that there is shared responsibility between independent contractors and production-operators to comply with all applicable provisions of the Act, standards and regulations. Thus, MSHA may, in serious cases, cite both the independent contractor and the production-operator for the contractor employee’s violation.

Possible violations may pertain to MSHA’s mandatory training requirements under 30 CFR Parts 46 and 48, subpart B. Independent contractor employees are required to receive training prior to performing work in or on mine property.

The appropriate training will be either comprehensive training (new miner, experienced miner, task and annual refresher) or hazard training. Determining the appropriate training depends on the experience of the contractor employee and his role at the mine site. If the contractor employee is completely new to his role and to the mine, he will likely be categorized as a “new miner” – defined as “a person who is beginning employment as a miner with a production-operator or independent contractor and who is not an experienced miner” – and be required to receive the new miner training outlined in 30 CFR § 46.5(b). If the contractor employee is experienced but is newly hired, he will likely be categorized as a “newly hired experienced miner,” which is “an experienced miner who is beginning employment with a production-operator or independent contractor.”

What operators should know is that both the mine operator and the independent contractor share in the responsibility for ensuring that independent contractor employees receive the necessary training when they enter a mine site. Further, independent contractor employees must receive comprehensive training if their work entails performing extraction and production work or if they are regularly exposed to mine hazards.

Training Independent Contractor Employees. Independent contractors who have employees at mine sites have the primary responsibility to train their employees on comprehensive training, as well as to develop and implement a written training plan that encompasses effective programs on these training requirements. Whereas, a production-
operator has the primary responsibility for ensuring that independent contractor employees receive site-specific hazard awareness training, which is “information or instructions on the hazards a person could be exposed to while at the mine, as well as applicable emergency procedures.”

The production-operator is not required to give the site-specific hazard awareness training itself. It is only responsible for ensuring that the training is provided before the independent contractor employees begin work. It can agree with the independent contractor to provide training materials in order for the contractor to provide the training to its employees.

The training, whether by the production-operator or the independent contractor, should provide instruction on health and safety risks, safety rules, safe working procedures, and must include hazards incident to the performance of all job assignments by the contractor employees at the mine site.

Production-operators should keep the following in mind if they decide to train independent contractor employees: the training must be conducted in accordance with a written training plan, presented by a competent person, and presented in a language understood by the independent contractor employees who are receiving the training.

OSHA’s New Initiative: A Focus on Temporary Employees. The OSHA-regulated side of the aggregate industry should also be aware of their responsibilities under the OSH Act when it pertains to temporary workers. In April 2013, OSHA announced that it was launching an initiative to protect temporary workers using enforcement, outreach and training.

OSHA’s initiative defines “temporary workers” as “those supplied to a host employer and paid by a staffing agency.” In announcing the initiative, OSHA stated: “In recent months, OSHA has received a series of reports about temporary workers suffering fatal injuries – many during their first days on a job. OSHA has issued citations when the employer failed to provide adequate protections, including safety training.”

Therefore, similar to the requirements for mine operators who use independent contractors at mine sites, host employers that use temporary employees must provide the same safety and health training to all employees at their worksites regarding workplace hazards.

Host employers are primarily responsible for ensuring the safety of the temporary employees because, according to OSHA, they control the worksites and generally control the work done by the temporary employees. Staffing agencies also have a responsibility under the OSH Act to protect their employees. They share joint responsibility with the host employer for maintaining a safe work environment for temporary workers, including ensuring that OSHA’s training, hazard communication and recordkeeping requirements are fulfilled.

However, the host employer has primary responsibility for employees at their worksites, including ensuring that hazards in the workplace are communicated to the temporary employees and that the employees receive specific safety training that is tailored to the workplace.

When determining whether the host employer or the staffing agency has more responsibility regarding recording injuries and illnesses at the worksite, the question will turn on whether the temporary employees are subject to the host employer’s direction and supervision. If the temporary employees are, the host employer must record and report any occupational injuries and illnesses that take place at the worksite. If they are not, the staffing agency is responsible for recording in their own OSHA 300 logs.

With Joint Responsibility, Communication is Key. Despite the primary responsibility falling on the shoulders of the host employer, there is some flexibility regarding the degree of responsibility shared between the two parties in complying with OSHA standards. For example, the parties can clarify in their written contract which of the two will provide personal protective equipment (PPE) to the temporary employees. However, the host employer is still responsible for ensuring that the PPE is used by the temporary employees.

Both the host employer and the staffing agency may also agree to jointly provide a new project orientation and safety training to a temporary worker before he begins work or at the new worksite. This arrangement can consist of the staffing agency providing general safety and health training to the temporary employee while the host employer provide specific training tailored to the particular workplace equipment/hazards.

As it increases enforcement in this area, OSHA has instructed inspectors to identify temporary workers and to collect the names of the temporary workers’ staffing agencies, the agencies’ locations, and the supervisory structures under which the temporary workers are reporting. Inspectors are also instructed to determine if temporary workers are exposed to safety and health violations and to verify that safety training was provided in a language and vocabulary that the workers could understand.

Thus, to avoid unnecessary citations, open and on-going communication between staffing agencies and host employers regarding temporary worker safety is critical, as well as ensuring that all employees are trained and protected from workplace hazards regardless of duration at the worksite. Similar to MSHA, OSHA could hold both the host employer and staffing agency responsible for violations that pertain to temporary workers.

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