OSHA: PPE Standard to be Ready in November
With the introduction of legislation in April that would require OSHA to issue a personal protective equipment (PPE) standard within six months of passage, further pressure was put on the agency to meet its most recent, self-imposed deadline: November 2007.
“The new majority in Congress signaled its intention to get a PPE standard from OSHA,” says LIUNA General President Terence M. O’Sullivan. “If OSHA allows the November deadline to pass, it will simply invite further and stronger Congressional intervention.”
Congressional action may also be influenced by the actual content of whatever rule OSHA proposes. The present standard (1910.132) says:
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact (emphasis added).
Despite this wording, a mid-1990s decision by the Occupational Safety and Health Review Commission unsettled established norms in American industry by ruling that nothing in the standard could be interpreted to require employers to pay for their workers’ PPE. In effect, the OSHRC decision left it up to employers to decide what, if any, equipment they would “provide” and shifted the burden for adequate safety equipment from employers to employees.
“This was one of the worst decisions ever by the Review Commission,” says O’Sullivan. “Laborers on jobsites should not have to pay for OSHA-required, personal protection.”
Initially, OSHA moved to correct the problem by announcing in 1997 that a new rule, explicitly requiring employer payment for PPE, would be adopted. After initial review, the rule was proposed in 1999, along with an agency announcement that the final rule would be issued in July 2000. However, that deadline, as well as several others, passed without further action. Then, in 2004, the agency announced its decision to reopen the docket (invite further comments), opening the door to a potentially complete revision of the 1999 proposed rule. Collaborating at the time with other trade unions, LIUNA and the LHSFNA supplied comments that emphasized that any retreat from employer-paid PPE would worsen long-range safety in the construction industry. Still, OSHA delayed further action.
Finally, on January 3rd of this year, a Change-to-Win union – the United Food and Commercial Workers Union (UFCW) – and the AFL-CIO filed a suit in the U.S. Court of Appeals for the District of Columbia to require OSHA action. Then, on March 16th, three days before the Court-ordered response of the Bush Administration was due, Secretary of Labor Elaine Chao filed papers asking to hold the case “in abeyance” until November so that the agency can complete its current process. Though the case is now on hold, it will be renewed if the agency fails to meet its November commitment.
With both Congress and the courts lurking, it is likely that OSHA will meet its November deadline. It remains to be seen, however, if it will stick with tradition and the abiding, long-range interests of workplace safety by issuing a clear rule requiring employer-paid PPE.
“OSHA has another chance to get it right,” says O’Sullivan. “We hope that this time, it clearly affirms the necessity of employer-paid PPE.”