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 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."