Wednesday, July 07, 2004

OSHA Grants Temporary Stay-of-Execution to PPE Standard

At Least Until After Hispanic Summit

OSHA is on the horns of a dilemma. They've got a "Hispanic Summit" coming up, yet for three and a half years, they've stalled on issuance of the most important standard on the regulatory agenda to Hispanics: the so-called Payment for Personal Protective Equipment standard.

First, a bit of background. Since its inception, it had been OSHA practice to require employers to pay for all Personal Protective Equipment such as gloves, boots, hearing protection and other protective equipment required by OSHA standards, although this requirement was not specifically written into OSHA's 1994 PPE revised standard. The OSHA Review Board ruled in 1997 that OSHA could not require employer payment unless it was written into a standard. So, in 1999, in order to codify OSHA's past practive, the agency proposed the "Payment for PPE Standard," took comments and held hearings.

The hearings were relatively short, the comments relatively few and serious opposition almost non-existent. As the letter from the United Food and Commercial Workers and other unions UFCW petition to OSHA stated:
The rulemaking record overwhelmingly supported OSHA's determination that a rule was needed to clarify this issue and protect workers from the risks posed by their employer's failure to pay for protective equipment.
In addition, the rule was generally supported by a number of employer groups including Shell Offshore Inc., Southwestern Bell Telephone, Heavy Constructors Association of The Greater Kansas City Area, National Tank Truck Carriers, Inc. , the Mechanical-Electrical-Sheet Metal Alliance , and the American Trucking Association.

The standard was almost ready for publication when the Bush Administration came into office in January 2001, but has lain dormant for the past three and a half years with the classfication "Next Action Undetermined."

In a rather surprising move, OSHA announced a change today in the status of the proposal. The record will be re-opened for 45 days. The reason:
Due to the significant amount of comments received in the record and after analyzing the issues raised in the comments, OSHA has determined that further information is necessary to fully explore the issues concerning paying for PPE that is considered to be a "tool of the trade. (emphasis added)"
What's the problem? First, there was no "significant amount of comments." There were actually surprisingly few comments. Second, the issue of "tools of the trade" was already fully discussed during the hearing. (This issue refers to equipment, such as boots, that employers are reluctant to pay for if the worker soon moves on to another employer. There are various good arguments on both sides of this issue, but it was not a major issue that threatened the standard.) Third, it's been three and a half years since they've taken office and their just now getting around to analyzing the issues?

As my kids would say, "Give me a break!"

This would all be rather difficult to understand ... until you realize that unless OSHA shows some movement on this issue, the agency will face major embarrassment at the Hispanic Summit scheduled for July 22 in Orlando (every vote counts), Florida. As UFCW wrote in its letter petitioning OSHA to issue the standard, this standard is very important to Hispanic workers:
The situation at a non-union meatpacking plant in Omaha, Nebraska, is a case in point. This plant has primarily a Hispanic workforce. The workers are required to wear rubber boots to reduce the risk of falling on slippery floors, but the employer deducts the cost of the boots from their paychecks. If the safety equipment workers wear to prevent knife cuts is lost or stolen, workers must pay for replacements. For some types of PPE, this company, like many others, furnishes only the first set of PPE, and after that, when the item is worn out, the worker must pay for its replacement. Workers faced with such policies frequently do not replace safety equipment when it wears out, because they cannot afford it or elect not to buy it. As a result, workers end up working with holes in their gloves, such that their hands are not protected from knife cuts, or wearing hearing protection that has lost its protective value due to wear.
Pointing to the Department's rhetoric about committing resources to Hispanic worker outreach and training, the letter states: "Rather than just promising more funding for outreach and education, the Department of Labor and OSHA Immigrant workers need more than outreach and education. They need protection."

It is unclear what the Department of Labor and OSHA hope to accomplish from this conference, aside from window-dressing. It's not clear what the agenda will look like or who will attend. Sponsored exclusively by Hispanic business associations, there has been virtually no outreach to labor unions who represent large numbers of Hispanic workers, nor Hispanic community groups. NIOSH has refused to participate because they were not allowed any meaningful input into the agenda and Inside OSHA reports that
OSHA officials that are experts on the issue of Hispanic workers in the United States were not involved in the planning and clearly are not setting the summit’s agenda. "The experts at OSHA did not know anything about the summit. All the planning came out of the Secretary of Labor’s office."
All indications point to an election-year dog-and-pony show in Florida, while back in Washington they cut worker training grants and give the Payment for PPE standard a stay-of-execution until after the election. And I thought Republicans were opposed to wasting taxpayer money. It's particularly tragic that OSHA has completely botched this summit, especially considering that there are indications that some OSHA field offices may actually be starting to make some progress.