Seeking new rule on protective gear, unions file lawsuit against OSHA

The AFL-CIO and the largest union for food and commercial workers filed a lawsuit yesterday to force the Department of Labor to finalize a rule requiring employers to pay for face shields, rubber boots and other protective gear used by low-wage workers in the meatpacking, poultry and construction industries. 

The labor groups contend that the Bush administration has been willfully dragging its feet on completing the standard, which was proposed in 1999 by the Clinton-era Occupational Safety and Health Administration (OSHA), due to an ideological opposition to regulating businesses.

OSHA proposed the regulation after the Occupational Safety and Health Review Commission ruled against the agency in a personal protective equipment (PPE) case, finding that the existing policy was ambiguous on whether employers should pay for PPE.

“The fact that they failed to do so is an indication of how loath they are to take any regulatory action,” asserted Peg Seminario, who heads up workplace safety for the AFL-CIO.

A spokesman from the Labor Department said, “We got the press release before the actual complaint arrived, so we are reviewing it now and we’ll have more to say in the near future.”

The rule would not impose sweeping changes, as the vast majority of businesses already comply with OSHA’s longstanding policy that employers, and not employees, pay for protective gear. By OSHA’s own estimates, only roughly one in 10 workers covers the cost of such equipment himself.

“It’s just not fair to those workers,” said Jackie Nowell of the United Food and Commercial Workers (UFCW).

In its most recent notice in November, OSHA vowed to complete the rulemaking by May. But the agency has missed its self-imposed deadlines to finalize the standard since it first promised to do so by July 2000, despite pressure from Congress.

In each of the past four years, the House Appropriations Committee has criticized OSHA’s inaction on the rule, and the Senate Appropriations Committee chimed in last year. In 2003, the Congressional Hispanic Caucus joined with the AFL-CIO and the UFCW to petition the agency to complete the rule.

“I’m hopeful that this lawsuit will compel OSHA to implement the rule it promised eight years ago to protect the safety of low-wage workers … We shouldn’t have to compromise worker safety for the corporate bottom line,” said Rep. Linda Sanchez (D-Calif.), a member of the caucus.

Nowell said that the unions took a deliberately “apolitical” approach by challenging the administration in court rather than pushing for legislation. But she conceded that the shift in power in Congress would put added pressure on OSHA to act.   

“I think they’ll see that there’s another route,” she said.