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Labor Unions Sue Bush Administration



action seeks to complete rule on employer payment for personal protection equipment



By Peter Mayberry and Jessica Franken



Published February 12, 2007
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On January 3, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and United Food and Commercial Workers (UFCW) filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit asking the court to order the U.S. Occupational Safety and Health Administration (OSHA) to finalize its pending rule on "Employer Payment for Personal Protective Equipment" that was originally proposed in 1999.

As the name suggests, the rule would require employers to foot the bill for personal protective equipment (PPE) such as safety harnesses, face shields/masks, protective suits and the like which are used by millions of workers to prevent devastating accidents in a vast array of industries. While many companies voluntarily pick up the tab for this equipment for their employees, many do not, leaving workers to foot the bill on their own. An oft-cited reason for the rule is that workers who cannot afford the expense frequently choose to forego the equipment altogether, putting themselves in harm's way.

Once finalized, in fact, OSHA estimates indicate that the rule could prevent tens of thousands of workplace injuries and dozens of deaths each year. Nevertheless, the rule has languished in proposed form for nearly eight years, the unions say, because of the Bush Administration's desire to shield corporate interests from the projected $62 billion in annual compliance costs. In the meantime, workers have suffered almost 400,000 injuries and more than 50 fatalities, all of which could have been prevented, the lawsuit argues.

Whatever the reason for the delays, if finalized, the rule will likely have a significant impact on members of INDA, Association of the Nonwoven Fabrics Industry, who make personal protective equipment. As such, this article will review the proposed regulation and consider possible outcomes for the nonwoven fabrics industry.

Background


The Occupational Safety and Health (OSH) Act of 1970 (Public Law 91-596) instructs OSHA to adopt occupational safety and health standards to protect workers from hazards such as exposure to toxic chemicals and dangerous machinery through the use of engineering controls such as ventilation devices and work practice controls.

Recognizing that these kinds of controls are not always enough to protect employees from all kinds of workplace hazards, in 1994, OSHA finalized its first personal protective equipment rule, requiring employers to provide appropriate safety equipment when warranted and to ensure its proper use.

The language in the original PPE rule, however, did not specifically address who should pay for the equipment. In the years that followed, OSHA repeatedly interpreted the rule to require employers to cover the cost of the protective gear, issuing citation after citation to those companies that refused to pay. But the agency decided to amend the PPE rule to clarify the payment requirement after losing a key administrative challenge brought by a company that had been cited in 1997.

In March of 1999, OSHA issued its revisions to the regulatory language, proposing that employers be responsible for the cost of all protective apparel except for safety-toe protective footwear, prescription safety eyewear, and logging boots. Noting that the proposed changes would "…simply clarify the employer's preexisting obligations under the personal protective rule," the agency predicted a short turn-around time and said it expected to finalize the rule by the middle of 2000. The formal rulemaking process seemingly confirmed this assessment, with public comments and several days of informal hearings yielding little by the way of opposition to the changes, according to the AFL-CIO and UFCW.

But OSHA missed the 2000 target for completion and then missed several later deadlines, prompting the AFL-CIO, UFCW and several other unions in 2003 to petition the agency to ask it to complete the rulemaking within 60 days. After briefly re-opening the rulemaking record to address a technical issue in the proposed language, the agency again promised to finalize the rule, this time by the end of 2004. After that deadline and several others came and went without any resolution, the matter caught the attention of several Members of Congress who criticized the agency and pressured it to move forward. Not long ago, OSHA told Congress it would complete the rule by the end of 2006, which clearly did not happen.

OSHA's most recent regulatory agenda says the rule will be completed in May 2007. In their January 3 filing, the AFL-CIO and UFCW said, in so many words, they are not holding their breath and asked the court to force the agency to complete the rule within 60 days of issuing a court order.

Looking Ahead


Whether the Bush Administration has deliberately stalled finalization of the rule based on potential costs to U.S. businesses is irrelevant in the context of this article. What should be of interest to readers is that OSHA estimates that some 20 million workers are already using one or more pieces of personal protective equipment, making it a $10 billion industry in the U.S.

Moreover, many of these items – including things such as facemasks, respirators, chemical protective suits, Kevlar garments and more—incorporate nonwovens, meaning that if the rule is finalized, there may be significant new opportunities for firms involved in making this equipment.

And while it is impossible to predict how the court will rule in the AFL-CIO/UFCW suit, given that this matter has already captured the attention of Capitol Hill lawmakers, we can probably expect the new Democratically-led Congress to press the agency even harder to complete the rule sooner rather than later. No matter how things shake out, INDA's Washington, DC office will be sure to keep "Capitol Comments" readers informed about related developments.