A Change-to-Win union – the United Food and Commercial Workers (UFCW) – and the AFL-CIO filed suit this month to push the Occupational Safety and Health Administration (OSHA) to issue a rule clarifying who pays for an employee’s personal protective equipment (PPE).

The suit, filed January 3 in the U.S. Court of Appeals for the District of Columbia, comes after more than eight years of “egregious” delay by OSHA. “Nothing is standing in the way of OSHA issuing a final PPE rule to protect worker safety and health except the will to do so,” said UFCW International President Joseph Hansen.

OSHA first announced its intention to adopt a rule requiring employers to pay for PPE in 1997 and proposed a rule in 1999, promising to finalize it in July, 2000. The agency missed that and several subsequent, self-imposed deadlines. Then, in 2004, it re-opened the record for comment on what equipment might actually be “tools of the trade” – commonly supplied by workers themselves – rather than PPE. Many unions criticized the re-opening, suggesting it was simply another delaying tactic by OSHA. In any case, LIUNA and others submitted comments to clarify the record. OSHA has scheduled final action on the rule for May of this year. Given the long history of last-minute delays, the UFCW/AFL-CIO lawsuit may provide the pressure that forces OSHA to stick to its latest schedule.

The question of who pays for PPE is a fundamental one in the arena of occupational health and safety. OSHA requires employers to provide a safe and healthy workplace, and traditionally this has meant that employers must provide PPE. Most do, but some resist, saying no specific OSHA standard requires them to pay for PPE. In these cases, workers must find and buy their own PPE, or the employers arrange for PPE which employees must purchase.

If employers are not required to purchase and provide the PPE for their employees, competitive pressures among them will cause some to cut corners or transfer the costs to employees. In turn, some employees – particularly those in low-paying jobs or in situations where they do not feel secure asserting themselves on safety issues (i.e., in non-union situations or among undocumented workers) – will go without PPE. Inevitably, the rate of injuries, illness and fatalities will rise in these workplaces and for the country as a whole.

“Responsible employers who care about their workers and the long-range success of their businesses accept the duty to provide appropriate PPE for their workers,” says LHSFNA Management Co-Chairman Noel C. Borck. “Indeed, this is standard in most union contracts. Neither workers nor contractors – nor the country as a whole – is served by OSHA’s continuing failure to enact the PPE standard. Good contractors are simply looking for a level playing field, and action by OSHA hopefully could bring some consistency to the issue of PPE.”

[Steve Clark]