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Seasonal Hiring in Pandemic Raises Staffing Firms’ Risks

Dec. 18, 2020, 4:20 PM

Staffing companies that hire holiday help for shipping, shopping, and health care have a big new concern this season—how to keep these temporary workers safe during a pandemic.

Providing training on proper mask usage, addressing worker virus complaints, and adhering to proper contact tracing protocols are a whole new world for staffing firms. The pandemic also has created possible liability concerns for the firms regarding sending hires into potentially unsafe workplaces, as well as possible citations and fines from workplace safety regulators.

“The challenges that staffing firms members have always faced is to ensure the health and safety of the temp workers,” said Stephen Dwyer, chief legal officer of the American Staffing Association. “The pandemic has created a serious context for that challenge,” he said.

Staffing firms can face increased liability when temporary workers complain about Covid-19 related hazards, and in many instances, “the staffing firm has obligation to investigate, just like they have to investigate issues of harassment, for instance,” Dwyer said.

A staffing company’s liability depends on whether workers are classified as independent contractors or are employees of the staffing firm, employment attorneys said, but there are general safety protocols all companies must be aware of.

For instance, when staffing companies are notified of potential safety issues at a client employer, “if someone has been sick and diagnosed, they need to know contact tracing protocols,” Dwyer said.

Because a staffing firm’s client employer might not share the identity of an infected individual for privacy reasons, the client employer “should ensure temp workers’ safety for contact tracing purposes,” he said. Employers “have an obligation under the law not to put them in harm’s way, or else they could be cited by OSHA.” If a staffing firm knows about worker safety issues at work sites and go along with employers in not addressing them, they can be liable, he said.

The Threat of Citations

The pandemic is forcing some employers to alter certain practices to comply with safety rules.

The Occupational Safety and Health Administration cited HCSG Staff Leasing Solutions LLC in Burlington, N.J., for alleged violations of failing to train workers on how to wear face masks and failing to provide a medical evaluation to determine an employee’s ability to use a face mask.

A representative from the firm did not respond to a Bloomberg Law email and voicemail requesting comment.

“The responsibility under the law for staffing agencies and host employers is dependent on the specific facts of each case,” an OSHA spokesperson told Bloomberg Law. “Staffing agencies and host employers are jointly responsible for maintaining a safe and healthful work environment for temporary workers—including training, ensuring workers have the proper personal protective equipment, and implementing safe work practices to prevent job hazards.”

How Companies Adapt

One major client employer dealing with these issues is Amazon. Roughly 5 percent of Amazon’s workforce, or 56,265 workers, are seasonal employees who are often hired through staffing agencies, an Amazon spokeswoman said.

Amazon prioritizes the safety and health of our employees, which is why we have committed to invest more than $10 billion in COVID-19 safety measures this year and, at the onset of the pandemic, we moved quickly to make more than 150 COVID-19 related process changes,” said Rachael Lighty, an Amazon spokesperson via email.

Amazon has supplied masks, gloves, thermal cameras, thermometers, disinfectant spraying in buildings, increased janitorial teams, additional hand-washing stations, hand sanitizer, and sanitizing wipes, Lighty said.

“We also now have the capacity to conduct tens of thousands of COVID tests a day across hundreds of sites as part of our effort to keep our front-line employees safe. And because we’ve built this testing capacity ourselves, we’re adding to the total number of tests available—not taking supply from others,” Lighty said.

John S. Ho, chair of Cozen O’Connor’s OSHA practice in New York, said staffing firms should revisit their contracts with employers to determine who is responsible for virus-related worker safety issues.

This is especially true when contracts contain ambiguous language that could indicate Covid-19 related issues apply to their own employees as well, he said. “It should be spelled out so there is no finger-pointing at the end of the day,” Ho said.

Staffing firms and client employers “have worked very hard in making sure that their employees are safe,” said Gerald L. Maatman Jr., an employment attorney with Seyfarth Shaw LLP. “There are various things they have implemented, including hotlines and call-in lines for Covid protocols that are not being followed internally.”

“At the end of the day, it’s in their interest to make sure all employees are safe, all Covid protocols are adhered to ... so long as there’s a process in place about contacting the company to investigate or remediate and take measures,” Maatman said.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergindustry.com; Karl Hardy at khardy@bloomberglaw.com

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