After nine years, a Congressional directive and a lawsuit in federal court, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Payment for PPE (personal protective equipment) rule on November 15.
“This standard is long overdue and is a step forward for construction industry safety and health,” says LIUNA General Secretary Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni, who has criticized OSHA’s delay in the past. “The agency has finally taken a strong and well reasoned position on behalf of jobsite safety.”
In an analysis accompanying OSHA’s promulgation of the rule in the Federal Register, OSHA demonstrates that the rule will require little change in most construction employers’ PPE payment procedures. Employers already pay for virtually all PPE in building (94.0 percent), heavy and civil engineering (97.5 percent) and specialty trade (95.0 percent) construction. Nevertheless, according to the analysis, the newly spelled-out requirements, if fully implemented, will result each year in about 5,000 fewer injuries to body parts (eye, face, ear, head, neck, hand, finger, toe or foot) among construction workers.
“A chief benefit of the new rule,” says Sabitoni, “is that it did not slide backward on well-established and generally sound PPE payment procedures, as some non-union industry forces recommended.”
Tools of the Trade
In one example, the National Association of Home Builders (NAHB) urged the agency to exempt “tools of the trade” from employer payment. It argued that in residential construction, “hard hats, safety glasses, work boots/shoes and general duty gloves” are normally supplied and paid for by workers who carry them “from job to job and employer to employer.”
OSHA determined, however, that “even within the same industry, there is disagreement as to what is considered a ‘tool of the trade.’” Thus, OSHA asserted, a “tools of the trade” exemption would leave employers unable to determine which PPE is, indeed, their financial responsibility, and no effective payment standard would be established.
The NAHB also pursued an exemption for temporary or short-term workers, commonly called “piece workers” in residential construction. “In areas where piece workers are used, how will [the rule] be enforced?” the NAHB asked. “Such companies typically process 15—50 workers in a single week, and many quit or are terminated after a short time. It is not uncommon for some workers to be terminated in a matter of hours.”
OSHA ruled that an employee is an employee, no matter how long he or she works, and is thus entitled to the necessary personal protective equipment. “The PPE payment provisions apply to all employees under the [OSH] Act…If an employer-employee relationship is established, then the employer must provide PPE to the employee at no cost.”
Self-Employed Independent Contractors
OSHA used similar logic in evaluating the situation of “self-employed independent contractors,” an increasingly common phenomenon in construction. While acknowledging that “truly” self-employed independent contractors are not employees and, therefore, not covered by the OSH Act, the agency recognized that “the label assigned to an employee is immaterial if it does not reflect the realities of the relationship.” If in fact “the hiring employer exercises day-to-day supervision over an “independent contractor,” including directing the worker as to the manner in which the details of the work are to be performed, when it is to be performed and so forth,” then “the hiring employer may be responsible for compliance with OSHA standards, including providing PPE to that individual at no cost.”
“One of the benefits of this PPE payment clarification by OSHA,” says Sabitoni, “is the way it helps level the playing field for the union and non-union sectors of our industry. As their proposals make clear, the residential contractors of the NAHB and their non-union allies trim costs by not providing vital PPE to their employees. This is one reason that residential construction is so dangerous. The new rule should reduce injuries for unorganized workers and make it easier for union contractors to compete for construction contracts.”
For a more detailed listing of the standard’s applications in construction, see Specific Construction-Relevant Specifics in Payment for PPE Rule.