OSHA issues PPE rule: What took ‘em so long?

OSHA’s long-awaited rule on “who pays for personal protective equipment” has finally seen the light of day.  Assistant Secretary of Labor Edwin Foulke made the announcement today in a telephone press conference; workers and employers should be able to read the rule in the Federal Register on November 15.  The Agency proposed this rule more than 8 years ago, and in today’s statements, officials repeated that the final rule is very similar to the March 1999 proposal. 

“…clarifications have added several paragraphs to the regulatory text.”

Several paragaphs in 8 years???   Well then, what took ‘em so long?

Readers of The Pump Handle will recall that this rule is designed to clarify when employers are supposed to provide and pay for safety equipment.  OSHA tried in 1994 to make this clarification through a policy memorandum, but it failed under legal challenge (Sec of Labor v. Union Tank Car, OSHRC Docket No. 96-0563).  Under Bush’s Labor Department, a final version of the rule was in perpetual limbo until two labor unions filed suit in January 2007 to compel OSHA to issue it.  The U.S. Court of Appeals (DC Circuit) set a March 19 deadline for the Secretary to respond to the unions’ lawsuit.  As the date rapidly approaches, the Department filed papers with the Court promising to issue a final rule in November 2007.

OSHA’s statement says:

“In the simplest terms, the rule for employer payment of PPE only applies when equipment is used by an employer to comply with one of the PPE requirements in OSHA’s standards.  …If PPE is not required, then the employer is not required to pay for it.  When an employer selects a specific type of PPE to be used at the workplace to comply with a standard, the employer is required to pay for it.”

Several weeks ago, we reported on a last-ditch effort by the Chamber of Commerce and the National Association of Manufacturers to influence the rule by meeting with the White House’s Office of Management and Budget.  Although lobbyists’ meetings with senior officials is nothing new in Washington, DC, this meeting was unusual because no one from OSHA or the Department of Labor was present.  Members of Congress George Miller (D-CA) and Lucille Roybal-Allard (D-CA) called OMB official Susan Dudley, head of the Office of Information and Regulatory Affairs (OIRA), to task for this inappropriate meeting (letter here). They also warned:

“We are therefore writing to express strong concern about…any attempt to issue a PPE rule that is weaker than the 1999 proposal.”

In OSHA’s press release today, they seek to reassure us:

“…the final rule provides employees no less protection than they would have received under the 1999 proposed standard.”

Let’s hope that one of Congressman Miller’s diligent staff members reviews the final rule carefully and tells us if that is true.  (That’s you JB, that’s you.)