By Aaron R. Gelb & Beeta B. Lashkari
Last Spring, Washington governor Jay Inslee signed into law Substitute House Bill (SHB) 1206, creating new duties for staffing agencies and worksite employers to protect the safety of temporary workers. The law, codified at Revised Code of Washington (“RCW”) 49.17.490, went into effect on July 25, 2021, but received scant attention from the media or safety professionals—no doubt, in large part, due to an ongoing focus on the COVID-19 pandemic. Nonetheless, given the extent to which many employers rely on temporary workers to staff their operations, this new law is one that covered employers should pay attention to and develop a plan to help ensure compliance. Below is a summary of the scope and requirements of the new standard, as well best practice tips for covered employers.
Who Is Covered by the New Standard?
The new standard generally applies to staffing agencies and worksite employers, as defined by the standard:
- A “staffing agency” is an employer as defined in Chapter 49.17 of the RCW and North American industry classification system (NAICS) 561320 and means an organization that recruits and hires its own employees and temporarily assigns those employees to perform work or services for another organization, under such other organization’s supervision, to:
- (i) [s]upport or supplement the other organization’s workforce;
- (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages, or seasonal workloads; or
- (iii) perform special assignments or projects.
- “Worksite employer” is an employer as defined in Chapter 49.17 of the RCW and means an individual, company, corporation, or partnership with which a staffing agency contracts or otherwise agrees to furnish persons for temporary employment in the industries described in sectors 23 and 31 through 33 of the North American industry classification system.
Importantly, per the definition of “worksite employer” in the new standard, covered worksite employers are generally limited to those in the construction (sector 23 of the NAICS) and manufacturing (sectors 31 through 33 of the NAICS) industries.
What are Covered Staffing Agencies’ Requirements Under the New Standard?
Before the assignment of an employee to a worksite employer, a staffing agency must:
- Inquire about the worksite employer’s safety and health practices and hazards at the actual workplace where the employee will be working to assess the safety conditions, workers tasks, and the worksite employer’s safety program; these activities are required at the start of any contract to place workers and may include visiting the actual worksite. If, during the inquiry or anytime during the period of the contract, the staffing agency becomes aware of existing job hazards that are not mitigated by the worksite employer, the staffing agency must make the host employer aware, urge the host employer to correct it, and document these efforts, otherwise the staffing agency must remove the temporary workers from the worksite;
- Provide training to the employee for general awareness safety training for recognized industry hazards the employee may encounter at the worksite. Industry hazard training must be completed, in the preferred language of the employee, and must be provided at no expense to the employee. The training date and training content must be maintained by the staffing agency and provided to the employee upon request;
- Transmit a general description of the training program including topics covered to the worksite employer, whether electronically or on paper, at the start of the contract with the worksite employer;
- Provide the department’s hotline number for the employee to call to report safety hazards and concerns as part of the employment materials provided to the employee; and
- Inform the employee who the employee should report safety concerns to at the workplace.
What are Covered Worksite Employers’ Requirements Under the New Standard?
Before the employee engages in work for the worksite employer, the worksite employer must:
- Document and inform the staffing agency about anticipated job hazards likely encountered by the staffing agency employee;
- Review the safety and health awareness training provided by the staffing agency to determine if it addresses recognized hazards for the worksite employer’s industry;
- Provide specific training tailored to the particular hazards at their workplaces; and
- Document and maintain records of site-specific training and provide confirmation that the training occurred to the staffing agency within three business days of providing the training.
Additionally, if the worksite employer changes the job tasks or work location and new hazards may be encountered, the worksite employer must:
- Inform both the staffing agency and the employee; and
- Inform both the staffing agency and the employee of job hazards not previously covered before the employee undertakes the new tasks and update personal protective equipment and training for the new job tasks, if necessary.
Worksite employers that supervise an employee of a staffing agency must provide worksite specific training to the employee and must allow a staffing agency to visit any worksite where the staffing agency’s employees are or will be working to observe and confirm the worksite employer’s training and information related to the worksite’s job tasks, safety and health practices, and hazards.
Are There Other Requirements of Which Covered Staffing Agencies and Worksite Employers Should Be Aware?
Yes. For example, the new standard makes clear that it does not diminish any existing worksite employer or staffing agency responsibility as an employer to provide a place of employment free from recognized hazards or to otherwise comply with Chapter 49.17 of the RCW and other employment laws. Both entities are responsible for compliance with Chapter 49.17 of the RCW and the rules enacted pursuant to this chapter.
Additionally, a staffing agency or employee may refuse a new job task at the worksite when the task has not been reviewed or if the employee has not had appropriate training to do the new task.
And, of course, retaliation is prohibited. The new standard explicitly states that a staffing agency or worksite employer may not retaliate against a staffing agency employee who reports safety concerns.
Given the high rate of turnover in many industry sectors and ongoing staffing shortages, a greater number of employers are turning to staffing agencies to fill gaps in the short and long term. While ensuring that each and every temporary worker is fully and adequately trained before they begin work can sometimes pose a challenge to certain employers, this new law raises the stakes by imposing specific requirements regarding what types of training must be provided to temporary workers, timeframes in which the training must be completed, and requirements surrounding the documentation of said training. To the extent not done already, covered staffing agencies and host employers should immediately update their policies and procedures for compliance with the new standard, and of course, ensure they are adhering to applicable requirements.