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OSHA Agrees to Issue Standard on Employer Payment for Personal Protective Equipment

  • April 6, 2007

The Occupational Safety and Health Administration of the United States Department of Labor (OSHA) has agreed to issue a long-awaited standard on employer payment for personal protective equipment. The proposed standard would require employers to pay for certain employee personal protective equipment (PPE) such as lifelines, lanyards, face shields and protective clothing.

On January 3rd, 2007, the AFL-CIO and the United Food and Commercial Workers filed suit in the U.S. Court of Appeals for the District of Columbia to compel OSHA to complete rulemaking on the PPE issue within 60 days. In re AFL-CIO, D.C. Cir., No. 07-1001 (Jan. 2, 2007). The unions argued OSHA's failure to issue the rule eight years after it was proposed in 1999 constituted "an egregious example of unreasonable delay." Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, in a statement on March 16 announcing the settlement said, "OSHA is moving forward with the PPE payment rulemaking and intends to issue a final rule in November" and asked the court to hold the case in abeyance pending publication of the final rule. The unions did not object to a court issuing an order holding the case in abeyance pending issuance of the final PPE rule.

Currently, there are approximately 50 OSHA standards that require PPE. Some address specifically who should pay for the PPE, especially health standards. For example, OSHA’s Bloodborne pathogens standard states, “when there is occupational exposure, the employer shall provide, at no cost to the employee, appropriate personal protective equipment, such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection and mouthpieces, resuscitation bags, pocket masks or other ventilation devices.” In most cases, however, the standard is silent. The general industry Personal Protective Equipment standard, 29 C.F.R. 1910.132, says only that “personal protective equipment … shall be provided, used and maintained in a sanitary and reliable condition whenever it is necessary …” In the 1997 Union Tank Car case, the Occupational Safety and Health Review Commission vacated a citation issued under this standard, concluding that the Secretary of Labor’s interpretation of the word “provide” did not reasonably include requiring an employer to pay for the cost of PPE and refused to defer to that interpretation. Under OSHA's proposed standard revision issued in 1999, employers would be required to pay for all "OSHA-required" personal protective equipment, with certain specific exceptions for safety toe shoes, prescription eyewear, and logging boots. However, changes may be made in this proposal before OSHA issues a final rule.

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