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OSHA to Rule in November Who Pays for PPE

This November, OSHA will finally end the controversy surrounding the matter of who pays for an employee’s personal protective equipment when it issues a final ruling on the subject. Labor unions have been waiting for almost eight years for the agency to complete its rulemaking, which would clarify that employers are supposed to pay for safety equipment.

The controversy began in 1994 when the agency tried to establish a policy and clarify the issue of payment in a memo to its field staff dated October 18th and titled Employer Obligation to Pay for Personal Protective Equipment. In this memo, OSHA stated that for all PPE standards, the employer must provide and pay for employees’ required PPE except for those items that are personal in nature or used by the employee off the job. In these instances the issue of payment was left to labor-management negotiations.

OSHA’s position in the 1994 memo was in response to pending litigation between the Secretary of Labor and Union Tank Car Company. In that case, the employer was issued a citation for not paying for metatarsal foot protection and welding gloves. The Occupational Safety and Health Review Commission (OSHRC) reviewed the case and declined to accept OSHA’s interpretation given in the memorandum. It dropped the citation and found that the Secretary had failed to adequately explain the policy outlined in the 1994 memorandum.

In response to OSHRC’s Union Tank Car decision, OSHA issued the proposed rule, 29 CFR 1910.132, which established that employers pay for all types of PPE as required under OSHA standards except for safety shoes, prescription safety eyewear and logging boots. The proposed rule was predicated on OSHA’s conclusion that the OSH Act implicitly required employers to pay for PPE that is necessary for employees to perform their jobs safely.

In 1997, OSHRC declined to accept OSHA’s interpretation that in the majority of circumstances, employers must pay for employees’ PPE as required under Section 1910.132. OSHA’s response was to start rulemaking proceedings to clarify the party required to pay for PPE in all situations where an OSHA standard requires its use. On March 31, 1999, the agency issued a proposed rule to require employers to pay for all PPE except in a few specific cases. After OSHA received public comments and held hearings, the record was closed on December 13, 1999.

In 2004, the agency re-opened the record because there was a need to evaluate the proposal further, and requested more input from the public. OSHA wanted public comment to address the issue of how to handle certain types of PPE that are usually supplied by the employee, taken from site to site or from employer to employer, and considered to be “tools of the trade,” especially in industries with high turnover.

In January 2007, The AFL-CIO and the United Food and Commercial Workers (UFCW) filed suit against the Department of Labor over its failure to issue a standard requiring employers to pay for PPE.  They asserted that this failure was endangering workers’ lives.

The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, petitioned the court to issue an order directing the Secretary of Labor to finalize the PPE rule within 60 days of the court’s order.

On February 16, 2007, The U.S. Court of Appeals for the District of Columbia Circuit ordered the Department of Labor to respond to the unions’ lawsuit by March 19th. However, several days before that deadline, legal counsel for the Secretary of Labor, Elaine Chao, filed papers with the appeals court asking it to hold the case “in abeyance” until the final rule is issued in November.