AFL-CIO Sues to Make Employers Pay for Protective Gear

When OSHA inspected Union Tank Car Co. in 1996, the agency cited the railroad car repair business for requiring its workers to pay for safety gear such as boots and welding gloves. But when Union Tank Car challenged the citation, the agency's review commission tossed it out. The commission said OSHA hadn't provided clear rules about whether employers had to pay for protective gear and therefore could not punish employers that made workers shoulder the cost.

Case closed? Not on the underlying issue. Nearly 10 years later, there is still no word from OSHA about whether employers must pay for mandatory safety equipment.

A new case seeks to put an end to the delays. The AFL-CIO filed a complaint asking the D.C. Circuit for a writ of mandamus that would give the government 60 days to issue final regulations.

While clear rules from the agency would lend certainty to companies' decisions about who pays for equipment, the costs will add up quickly if the agency forces employers to pay for gear. Even for companies that already provide safety gear, a broadly written rule could mean more expense and less flexibility.

"We're talking about millions of dollars each year," says Ron Signorino, a consultant and lobbyist at Blueoceana Co. Inc. who worked as an OSHA regulator.

Cost Confusion

Current OSHA rules require employers to provide certain protective equipment for employees in dangerous jobs. However only some of those rules delineate who must pay for that equipment. Certain OSHA policies now on the books--such as those regulating worker exposure to lead, benzene and noise--explicitly require the employer to pay. But the agency's rules governing other hazardous conditions don't say who pays for safety gear.

The AFL-CIO says the hodgepodge of rules is unfair to certain employees. For example, under current rules, workers on a battery plant production line are entitled to have their employer pay for gear to prevent lead exposure, while workers on the charging line in the same facility may have to pay for their own gear to prevent exposure to sulfuric acid. The petition says that OSHA should force employers to shoulder the cost of all protective gear to eliminate that inconsistency.

"OSHA's failure to finish the rule puts workers at risk of harm and undermines enforcement of the OSH Act," the AFL-CIO's petition says.

According to OSHA, most employers already pay for protective gear. Nonetheless, a new rule would change the way they manage those costs. For instance, the rules could force a company to pay for replacement equipment even if a worker repeatedly loses safety gloves or fails to properly maintain an employer-issued respirator says Baruch Fellner, a partner in Gibson, Dunn & Crutcher in Washington, D.C. In the past, a company would have been able to negotiate with a union about who pays for replacements when gear is lost or damaged.

Accepting Exceptions

But a greater concern for employers than the loss of flexibility is whether OSHA will carve out exceptions to the new rule. For some employers, big money is riding on the exact language of the regulations.

A 1999 proposed rule contained an exception that would let workers pay for protective footwear and prescription safety eyewear based on the fact employees often use such gear off the job. The agency has also considered a "tools of the trade" exception to allow employers to require workers to supply certain gear, such as hard hats, under standard industry practices. In industries with high turnover, such as construction, that exception is crucial to containing costs.

"It is very troublesome if OSHA doesn't come up with some kind of tools-of-the-trade exception," Fellner says. "And it will be troublesome to the unions if they do."

The conflict over exceptions means the issue of who has to pay for safety gear may still be litigated for years to come. Lynn Rhinehart, AFL-CIO associate general counsel, says the organization opposes any exceptions, but wouldn't say whether it would sue over them. Businesses also may challenge any rule OSHA promulgates, arguing that OSHA has the authority to protect workers from dangerous conditions, but not to determine how businesses pay for safety gear.

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