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Safety’s Role in the Labor Shortage, Return to the Workplace and Other COVID-19 Concerns

June 17, 2021
A labor and employment attorney shares insights on how companies are navigating COVID-19 and speculates on what a post-pandemic workplace will look like.

COVID-19 disrupted the workplace and displaced much of the workforce. For Brittany Sakata, it also meant serving on a lot of task forces.

But, as a result of all those meetings and strategizing, she has a firm pulse on the state of flux at the workplace. That helps her advise clients as associate general counsel at the American Staffing Association (ASA), the largest association of staffing agencies in the United States.

Sakata is a labor and employment attorney with more than a decade of experience litigating on behalf of individuals and employers. Since joining the ASA in 2016, she advises members on labor and employment law and policy issues, including EEO, wage and hour, immigration/I-9, OSHA and NLRB issues.

Temporary workers are employed in virtually every role in all sectors, including an estimated 36% who work in industrial workplaces, followed by 24% in office–clerical and administrative. According to ASA data, there are about 25,000 staffing and recruiting companies in the U.S., and over the course of a year, they hire 16 million temporary and contract employees. Employers turn to staffing agencies to help fill roles, complete a project and trial potential permanent employees. Whatever the reason, these temporary workers serve a vital purpose in the overall economy, but they are often the first affected by any labor market trends. This past year has been no exception.

Sakata shares with EHS Today what she has heard through members and learned from her work on task forces about the changing protocols and growing concern for safety as we continue to navigate the COVID-19 pandemic. She also postulates on emerging trends, possible legal trends and the future of work.

EHS Today: What role does safety play in the return to the workplace?

Brittany Sakata: Our members are in the staffing space, [and] many do light industrial [employee placement]. Their job as a staffing firm is to comply with state and federal OSHA laws. Part of that means ensuring that the worksite at which they're placing temporary workers are following state, local and federal health and safety guidelines. The OSHA Temporary Worker Initiative, where they talk about the duty of staffing firms to visit the jobsite and ensure that temporary workers are being placed at a safe worksite, exists pre-pandemic and certainly post-pandemic.

I think that safety is top of mind for employees as they return to the workplace. Staffing firms and clients alike are, all of a sudden, having to share all the things they're doing to keep the workplace safe. They weren't necessarily highlighted before the pandemic, but they're definitely part of that conversation of trying to get workers to come back and trying to educate them around the additional steps to ensure that they are returning to a safe workforce, one that complies with state and federal guidelines and best practices.

Is safety being discussed alongside the more traditional talking points, such as 401Ks, paid time off and healthcare coverage?

Sakata: I think the answer to that is yes, because whereas before maybe safety was just expected. Now, people returning want to know what exactly is being done. They want to know [if] somebody gets sick in the workforce, there's some safety net for them if they have to take time off.

I think that is something that a lot of employers are grappling with as they try to bring workforces back and don't have access to the numbers of employees that they used to. They're trying to make sure that they're offering incentives both in terms of pay and sick leave. That's why I think some of the things going on at the federal level around paid sick leave or paid family leave will likely gain more traction than we've seen in previous administrations, because there is that hope and expectation that employees will have more of a safety net.

I know a lot of employers added paid leave at the height of the pandemic for workers who didn't have it before but staffing agencies by and large don't offer paid time off and other benefits for new workers. Is that something more are doing more now, even if it's just COVID-19 only leave?

Sakata: More staffing firms are providing COVID leave. There's nothing worse than having one of your temporary workers be sick at your client's site because now you're not just impacting your own worker, you're potentially impacting the client's workers.

I do hear anecdotally from our members that they're offering leave to go get tested and while they're waiting for the results. Most of our staffing firm members are under 500 employees, so they were subject to the FFCRA [Families First Coronavirus Response Act]. Many still continue to participate, even though it is now voluntary under the ARPA [American Rescue Plan Act of 2021].

In talking with our members who are multi-state employers, where they might have some workers in states where there is a paid sick leave mandate, most of them are implementing a policy where, regardless of where they're located, there's some sort of opportunity for a paid sick leave accrual, which I think highlights why a federal paid sick leave might have some advantages.

What else are companies are doing to reassure new hires or current hires that their workplaces are safe?

Sakata: It's tricky in a staffing context because temporary workers are at the at the client’s site, so they're subject to the client’s hazard training and hazard abatement. In talking with our members, there's a lot of conversations between the staffing firm and the client about safety measures and virus mitigation measures at the jobsite and making sure that the workers they’re placing there are advised about those measures, they're trained on them, and they know who to go to should they have questions about it. They already have to do it with other job hazards, and this is essentially a new job hazard much like lockout tagout or PPE. This is a new conversation, and I expect it will likely continue.

You mentioned safety procedures and protocols needing to be in place to ensure compliance. Is that being done differently now than it was pre-pandemic?

Sakata: The members that I've chatted with have highlighted that documentation is more important now than ever—checking the state guidelines, checking the federal OSHA should there not be a state program, communicating with the client about their safety programs, documenting that they've done all that, and then documenting that they've gone back and ensured that the temporary workers at that site have been included in all those policies and procedures.

The good news from the pandemic is managers and and workers are a lot more comfortable with technology. I hear stories about staffing firm managers facetiming workers. They might not have done that before. Now, there's this embracing of technology as sort of essential to keep us all connected in these strange times. They're able to touch base more frequently in different mediums to ensure that the workers have gone through and are comfortable with the policies and procedures at the client's site.

We've heard a lot about vaccine passports and the need to prove vaccination as condition for being offered a job or to return to the workplace, which is also raising legal questions. Are you hearing that employers are also requiring temporary workers to be vaccinated?

Sakata: I would say the vast majority of our members and their clients are going with a strongly encouraged but not mandated approach to vaccines. The majority of mandates from the client are related to a legitimate business reasons, such as vulnerable populations. We are hearing the occasional client that wants to mandate all employees on their job site be vaccinated as a best practice. That does raise some challenges from a legal and an HR business relations perspective because there are people that don't intend to get the vaccine, regardless of whether they have an underlying condition or a religious reason.

It’s difficult to know what things will be like six months or a year from now, but do you have any predictions about what COVID-19 safety measures will continue for the foreseeable future?

Sakata I think the symptom checklist will be here for a long time. I think masks will probably be here until 2022 in most areas. I went last winter, for the first time, without a single flu or cold bug at my house, and I have several children. I feel like that's saying something. I expect people may choose to use them for that reason. I think temperature checks might go away. We know that there are many people who could have a fever and have just taken Tylenol or who could be asymptomatic.

I also think that how companies handle safety will create a division between places people want to work and places people don't want to work. Efforts around safety need to be genuine. I think as employers are taking those steps to comply with state and federal CDC and OSHA requirements and health department requirements, then workers are going to be more likely to want to be there.

Do you think workers will have a higher demand for safety measures or may be more willing to comply with safety measures that were implemented pre-pandemic or as a result of COVID-19?

Sakata: I struggle to answer this in one way or the other. We've seen such a divide in people's views on health and safety over the past year and a half, but I'm eternal optimist. I feel like if people can see why they're doing things and how it impacts the greater good—so putting on a mask ensures that my co-worker who might have an underlying health condition isn't going to get sick or making sure I use hand sanitizer every time I walk onto the floor of the warehouse—those little things should go a long way. If people can view those as not even inconveniences but just basic steps to ensure the safety of those around them, I think they could be here to stay. Employees could want that, but I don't know.

Given that your organization and its members work with so many different employers, do you have any advice for EHS Today readers?

Sakata: There's a lot of great resources out there. Take advantage of those. The groups that have put those together use extensive bodies of research, focus groups and interviews, and they have social media campaigns about words to use and words to avoid. We have created several of them ourselves [including Safely Back to Work and Vaccine Resources] and have made them available to members and non-members alike because employers are struggling right now, certainly to get workers back, but also to just recover from this pandemic.

And to the extent that [safety professionals] can point to resources that are developed based on governmental guidelines like the CDC, OSHA or state OSHA programs, it takes the arbitrariness out of it—and it allows employers to focus on building their businesses back. Take advantage of the NSC’s SAFER Playbooks. Don't hesitate to crowdsource and attend a webinar to hear the concerns of workers and how to address them.

Companies are continuing to draft or rethink their return to work plans. Are ASA members still seeing a lot of work from home temporary staffing positions available?

Sakata: I think so, I mean certainly not in the light industrial industries, but in the tech and professional spaces, remote work, I think, is here to stay in some form. I suspect it will be more of a hybrid approach—perhaps two or three days in the office, two days remote—but I do think a lot of employers that didn’t have remote work before are now willing to roll that out. Workers have shown over the past year that they can be quite productive at home.

For our internal staff, ASA is looking at the day after Labor Day. The main reason behind that is there's a lot of parents and working families in our workforce, and there's not a lot of summer camp options or the camps that are out there have caps for the number of kids who can sign up. Until the schools fully reopened, a full return to work is going to be a challenge for a lot of employers.

Have you seen reasonable accommodations be made for workers who don't yet feel safe or for health reasons cannot yet return to work, or is that a bridge employers haven’t crossed yet?

Sakata A lot of employers who have never had that ADA reasonable accommodation conversation will suddenly be having it for the first time. If they haven't already, they probably will over the summer as they're looking to return workers to their offices.

I hear questions all the time from members about that accommodation conversation: How do you have it? How do you ensure that you still get the camaraderie that you get when you have everyone in the office? How do you view that as an essential piece of the work and still be able to provide an option to someone who maybe is anxious or has an underlying health condition and has fears about returning to work?

It is really important that employers have these conversations. They're going to have to because they're struggling to find workers, and they need to be a place where people want to come back. To do so, you need to be flexible in a post-pandemic world.

How are the manufacturing and construction sectors fairing? Are employers having trouble filling openings?

Sakata: Our members in those spaces call me and say, you know, business would be great if I could just find workers to fill these jobs because my clients are clamoring. Some of them are trying to team up with other staffing firms to see if they can broaden their talent pool. Some are offering bonuses to sign on and [attending] job fairs. Some are putting ads on pizza boxes. There's all kinds of ways that they're trying to appeal to these audiences, probably with varying levels of success.

It'll be interesting over the next six months or so to see how the members can get in front of these workers. They're raising rates, they're talking about safety measures, and they're just really crossing their fingers that people want to return to those types of jobs.

Part of the problem is that construction and manufacturing require extensive training and certifications. What can be done about that?

Sakata: Workforce development and money for workforce development is really key to upskill those workers that might be on the sidelines—and ensuring that workers who have an interest in being upskilled can do so from the safety of their own home, to the extent there's online programs. I know OSHA shifted some of their OSHA 10-Hour certification programs online.

There are ways to do this that are convenient and flexible because that's key. People need to have these opportunities at flexible times so they can continue to pick up their child from school if there's no bus service right now and take a day off if they're sick. It's a really big challenge, and it needs to be tackled on a really broad level in terms of workforce development.

Is there anything else you would like to share with EHS Today readers?

Sakata: I know your readers are not staffing firms, but rather their clients, and I think it's important for them, as they're developing their policies and procedures, to ensure that their safety programs include temporary workers. If there are questions or concerns at the jobsite, temporary workers need to know where to go so that concerns around safety can be addressed as they arise. Temporary workers deserve the same safety and health protections as internal workers, and at no time has it been more important than now.

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