“OSHA has stepped onto a slippery slope,” warns Armand E. Sabitoni, LIUNA General Secretary Treasurer, New England Regional Manager and Labor Co-Chairman of the LHSFNA, speaking of OSHA’s decision to reopen the docket for comment on whether personal protective equipment (PPE) may be a “tool of the trade” and, therefore, not the responsibility of employers to provide.

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LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni

“The Occupational Safety and Health Act was designed to require employers to provide workplaces free of recognized hazards,” says Sabitoni. “If OSHA now requires workers to pay for their own PPE, it is shifting the burden from employers to workers. That’s going back to the old days, and the long-range result will hurt workers and contractors, alike.”

Sabitoni’s comments amplified formal comments submitted by the Building and Construction Trades Department (BCTD) of the AFL-CIO on August 20, 2004. Those comments were a collaboration of key unions in the construction industry.

At the heart of the BCTD position is the strong view that PPE is never a tool of the trade. “In the construction trades, ‘tools of the trade’ are understood to be hand tools used by trades in performing work specific to their craft. It’s a distortion and misuse of the concept to apply this phrase to PPE used to protect against hazards encountered on the job.”

The BCTD uses fall hazards to help make this point. Currently, employers are required to eliminate these hazards, relying on a “hierarchy of controls” that puts engineering controls ahead of PPE. This means that employers should provide protection through use of acceptable guardrail systems. However, if employees are soon required to pay for personal fall arrest systems (harnesses), then the incentive for employers to engineer the solution would be lost. The use of engineering controls would diminish, and the responsibility for workplace safety would shift toward employees. This would be particularly burdensome on immigrant and entry-level employees.

While employers may save money in the short-run, the BCTD lists a variety of interests that would be disserved by a shift to employee-paid PPE. These include:

  • Workers
  • Insurance companies
  • Private medical insurance systems
  • Public hospitals
  • Social systems like Medicaid, Medicare and Social Security
  • Construction users and site owners
  • Employer’s long-term interests (due to more injuries and lost work days, rising workers’ compensation costs and rising private insurance payments)

The NEA – The Association of Union Constructors also weighed in on these issues. In an August 20 letter the NEA, which represents about 5000 union contractors, wrote, “Somehow there appears to be confusion over the term ‘tools of the trade’ and personal protective equipment.”

The letter goes on to note that “tools of the trade” refer to actual tools used to do particular jobs. Generally, these are supplied by the employer and, if otherwise, the requirement on employees is spelled out in the collective bargaining agreement or memorandum of understanding.

In contrast, the letter goes on, “PPE, defined as equipment providing safety protection, is to be purchased and provided by the employer. The employer is responsible for the use, training and enforcement for all PPE used by the employees on their projects. Hard hats, respirators, specialized protective clothing (nomex), fall protection systems including harnesses and the like are PPE and should be purchased and provided by the employer. Work clothing and work boots are to be provided by the employee.” The letter notes that who should pay the cost of specialized foot protection (steel toe or metatarsal boots) should be established by local practice and is “usually addressed in a collective bargaining agreement between the parties.”

The American Road and Transportation Builders Association (ARTBA), which represents 5000 union and non-union companies, also submitted comments. “In general, the ARTBA does not consider most PPE to be ‘tools of the trade.’ The exception to this understanding comes with personal items, such as work boots and prescription safety glasses that are truly personal in nature and are suitable for use away from the job.”

In its comments, the AFL-CIO used the reopening to blast OSHA, citing its failure under the Bush Administration to issue a final PPE rule after the rulemaking record was closed at the end of the Clinton years. Asserting that the agency then was about to issue a final rule, the AFL-CIO wrote, “Instead, OSHA has spent the last three years stalling on this rule…Now, in a move designed to make it appear as though the agency is actually doing something to finish this rulemaking, OSHA has ordered a limited reopening of the record to consider the preposterous notion of whether PPE ought to be considered a ‘tool of the trade’…In our view, there is absolutely no justification or basis for such an action.”

More information and the comments of others is available from OSHA at its Docket Office.

[Steve Clark]