Who Should Pay for Workplace Protection?
OSHA has promulgated a number of occupational health and safety standards explicitly requiring employers to furnish per-sonal protective equipment “at no cost to employees,” as is the case for hearing protection and for handling certain toxic sub-stances. This “specific standards” approach can be confusing to employees as well as employers, raising questions such as: When is a company required to pay, and when are they not? In addition, it can create the perception of unfair conditions in the workplace. If an employee works in an area of a facility with one set of hazards, their PPE may be paid for. However, if they work in another area with a different set of hazards, it might not.
OSHA attempted to establish a policy and clarify the issue of payment for required PPE in a memorandum to its field staff dated Oct. 18, 1994 – “Employer Obligation to Pay for Personal Protective Equipment.” OSHA stated that for all PPE standards, the employer must both provide and pay for the required PPE except in limited situations. The memorandum indicated that where PPE is very personal in nature and usable by the worker off the job, such as is often the case with steel-toe safety shoes (but not metatarsal foot protection), the issue of payment may be left to labor-management negotiations.
In a landmark 1997 court case, Secretary of Labor v. Union Tank Car Co., OSHA’s policy on PPE was nullified. The case involved an employer that was cited by OSHA for failing to pay for metatarsal boots and welding gloves. The ruling body in the case was the Occupational Safety and Health Review Commission (OSHRC), an independent federal agency created to decide contests of citations or penalties resulting from OSHA inspections. The Review Commission functions as an administrative court, and in this case it did not accept the 1994 OSHA interpretation as an adequate explanation of its PPE policy.
In 1999, OSHA tried again, this time by proposing a new rule requiring an employer to provide and pay for all types of PPE required under OSHA standards except for safety shoes, prescription safety glasses and logging boots. The rule has still not been finalized.
So what is causing the holdup? OSHA stated that there have been a large number of public comments to address, and the comments have led to further investigation and evaluation on specific areas before the final rule is issued. Businesses have protested the ruling, once again citing the high costs that the rule would impose, especially in industries with temporary and high turnover staffing.
The delay has been too much for two of the countries largest labor unions, the AFL-CIO and the UFCW. On Jan. 3, 2007, they filed a lawsuit against the U.S. Department of Labor over its failure to issue the rule. According to the suit, “by OSHA’s own estimates, working men and women have suffered almost 400,000 preventable injuries and more than 50 preventable fatalities in the time that the rule has languished.” If successful, the court can issue an order forcing the Secretary of Labor to complete the PPE rule within 60 days of the court’s order.
The requirement that employers pay for protective equipment is a logical corollary of the acceptance that the employer must pay for engineering controls to improve safety. There is no rational basis for distinguishing the use of personal protective equipment from these controls. The goal in each case is employee protection and reduced injury costs. Consequently, the responsibility of paying for the protection should, in each case, rest on the employer. IH