DOL Ordered To Respond to Safety Equipment Lawsuit

By Allen Smith Nov 14, 2007
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It’s not every day that the presence of a vending machine attracts much notice, but a vending machine stocked with ear plugs drew the attention of Jackie Nowell, director of the occupational safety and health office for the United Food and Commercial Workers International Union (UFCW). Shouldn’t the employer be providing these to workers for free instead of making employees purchase them, even when they hadn’t turned their ear plugs back in and then misplaced them, she wondered.

When Nowell asked a federal Occupational Safety and Health Administration (OSHA) official this question, she said the official agreed that employers should pay for such personal protective equipment. Nowell and other union officials want OSHA to clarify this point in a final rule, but they have been waiting eight years since a proposed rulerecommended doing just that.

The UFCW sued the DOL—OSHA’s parent agency—on Jan. 3, 2007, asking the court to order OSHA to implement the “long-delayed standard.” On Feb. 16, the U.S. Circuit Court of Appeals for the District of Columbia ordered the DOL to respond to the lawsuit, the UFCW stated in a release.

“I’d be happy with the standard that was proposed,” Nowell told HR News.

Proposed Rule

In the proposed rule, the DOL said that OSHA standards already require employers to provide personal protective equipment but do not specify that the employers are to provide the equipment at no cost to the employees. The proposed rule recommended clarifying that “with only a few exceptions” employers must pay for the equipment.

The DOL proposed excepting from this requirement safety-toe protective footwear and prescription safety eyewear if an employer permits them to be worn off the job and they are not used at work in a way that makes the equipment unsafe for use off the job site. In addition, the DOL recommended an exception for logging boots.

The DOL acknowledged that the Occupational Safety and Health Review Commission had vacated a citation for an employer that did not pay for metatarsal foot protection and welding gloves. However, OSHA asserted its belief that “it is important that the employer both provide and pay for personal protective equipment and ensure that employees wear it when necessary,” and the agency stated that this “reflects the direction of the OSH Act.”

The department explained that “the proposed requirement will better protect employees from work-related illness, injury and death. Employers are in a better position to identify and select the correct equipment and to maintain it properly. They have the financial resources to purchase personal protective equipment of necessary quality and to pay for replacements as necessary.”

Replaced Gear

Most employers do pay for personal protective equipment, Nowell acknowledged, but she said ear plug vending machines aren’t the only example of employers charging workers for replaced protective gear and equipment.

A few employers think they “can get away with” not paying for such replacements, she remarked. Some require workers who lose metal mesh gloves, for example, to pay for a new pair. She’s heard of employees who use too many pairs of cotton gloves having to pay for replacements.

Paying out of pocket for such equipment can be a real burden for workers, particularly low-wage workers, she noted. Nowell asserted that charging employees for replacement safety equipment occurs most frequently in “low-wage industries.”

This practice sends employees the “wrong message,” Nowell remarked, asserting that it signals that an employer “couldn’t care less if they wear” the safety equipment. Nowell anticipates that a final rule will be issued by May.

However, the U.S. Chamber of Commerce, National Association of Manufacturers and American Trucking Association filed a friend-of-the-court brief with the D.C. Circuit on March 5 opposing any rule requiring employers to pay for personal protective equipment. They said that the Labor Department doesn’t have the authority to force employers to pay for personal protective equipment, and that the issue instead belongs at the bargaining table.

The associations asserted that a rule requiring employers to pay for personal protective equipment would ignore a host of day-to-day HR issues, including:

    • What happens if an employee forgets personal protective equipment at home. Must the employer provide replacement equipment every day? Or must the employer keep all such equipment on site?

    • Whether an employee can be disciplined for failing to bring personal protective equipment to work.

    • Whether the employer can bill an employee for losing or destroying personal protective equipment.

    • Who is liable for stolen equipment.

They added that assertions that a rulemaking on personal protective equipment is uncomplicated and straightforward are “simply incorrect.”

The following day, a bill (H.R. 1327) sponsored by Rep. Lucille Roybal-Allard, D-Calif., was introduced to require OSHA to complete its rule on employer payment for personal protective equipment.

‘Bang a Drum’

“No employer has an interest in an unsafe workplace,” remarked Paul Salvatore, an attorney with Proskauer Rose LLP in New York City and a member of the Society for Human Resource Management Labor Relations Special Expertise Panel. “Unions often seize on extreme situations,” he said in a Feb. 28 interview.

But Salvatore added that “HR has to continually bang a drum to make sure the workplace is safe and focus on the safety obligation.”

He recalled that his father was a mid-level supervisor in a unionized workforce and that sometimes he would come home with pins and bumper stickers that said, “Safety First.” “You do not see as much of that today,” Salvatore reflected.

Buttons and pins can be a useful part of a safety program, but without safe practices they can send employees mixed signals, added Keith Davis, HR manager for training and development with the Daily Press-Tribune newspaper in Newport News, Va. Safety procedures should be covered not only in employee orientation but also with updates at shift meetings, Davis told HR News.

Supervisors truly can take the lead to make sure safety rules are adhered to and should hold employees accountable when they do not follow the rules; otherwise they’re giving “tacit approval” to safety violations, he said.

Ordinarily, employees don’t act in such blatant disregard of safety rules that disciplinary issues arise, he concluded, as most “people have a great deal of common sense” and don’t want to wind up injured.

Allen Smith, J.D., is SHRM’s manager of workplace law content.

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