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AFL-CIO Sues to Force Issue of Who Pays for PPEs

Both the AFL-CIO and United Food and Commercial Workers (UFCW) have filed a lawsuit against the Department of Labor so that the agency will be forced to issue a final rule mandating employers to pay for personal protective equipment (PPEs).

The controversy over whether employers should pay for PPEs first began in 1999. That year, the Department of Labor proposed a rule that employers must pay for all PPEs required under OSHA standards. The only exceptions were safety shoes, prescription safety eyewear, and logging boots in certain circumstances. However, the agency never followed through with a final rule.

In 2004, the Department of Labor was still wavering; saying it needed more time to evaluate the proposal and calling for more public commentary on the subject. The biggest stumbling block for the agency was how the proposed rule should address the types of PPEs that are usually supplied by the employee, and taken from jobsite to jobsite or from employer to employer. They felt the problem was an especially thorny issue in industries with high turnover.

In actuality, the question of who pays for what PPEs has already been settled on most union job sites in either of two ways. Either it has become the custom that the employer/employee pays for the equipment or it is spelled out in the contract who pays.  However, in the absence of direction from OSHA, nonunion employers can do as they please, often leaving it to their workers to provide their own protection.  Because of the expense, many workers choose to work with the appropriate PPE, jeopardizing their own safety as well as everyone else’s.

The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, asserts that the agency’s failure to act is putting workers in danger. According to OSHA’s own estimates, 400,000 workers have been injured and 50 have died because there is no PPE rule in place. The labor groups say that workers in some of America’s most dangerous industries, such as meatpacking, poultry and construction, and low-wage and immigrant workers are being forced by their employers to pay for their own safety gear because of OSHA’s failure to finish the PPE rule.

The labor unions call the eight-year delay “egregious,” and they are asking the court to force OSHA to act. The suit asks the court to issue an order directing the Secretary of Labor to complete the PPE rule within 60 days of the court’s order.