Lawsuit Asks Court to Step in on OSHA PPE Rule

Tired of waiting for OSHA to promulgate its proposed employer-payment-for-PPE standard, AFL-CIO and the United Food and Commercial Workers (UFCW) filed a lawsuit asking a court to compel the agency to issue the rule.

The lawsuit, which was filed in the U.S. Court of Appeals for the District of Columbia Circuit, asks the court to direct Secretary of Labor Elaine Chao to complete the PPE rule within 60 days of the court's order.

"Nothing is standing in the way of OSHA issuing a final PPE rule to protect worker safety and health except the will to do so," UFCW International President Joseph Hansen said. "It is long overdue that the agency take action on protective equipment. Now, we are asking the courts to force OSHA to act."

The unions in their lawsuit point out that OSHA in 1997 "publicly acknowledged the need to adopt" a rule requiring employers to pay for workers' personal protective equipment – such as respirators, protective clothing, gloves and safety glasses – and that the agency in 1999 issued a notice of proposed rulemaking. However, after that the agency missed several self-imposed deadlines to issue a final rule, it eventually stopped listing a target date for completing the rule.

According to OSHA's latest regulatory agenda – which was published in the Dec. 11 Federal Register – final action on the PPE rule is scheduled for May. The lawsuit, though, asserts that the deadline is "a target likely to prove as illusory as the agency's earlier projected deadlines."

"OSHA's failure to complete the PPE rule almost 8 years after it was first proposed represents an egregious instance of unreasonable delay," the lawsuit contends. "This is an uncomplicated rulemaking on a straightforward, but significant, issue of importance to worker safety and health."

According to a statement issued by the unions, the PPE rule "would not impose any new obligations on employers to provide safety equipment; it simply codifies OSHA's longstanding policy that employers, not employees, have the responsibility to pay for it."

If the unions' lawsuit is successful, it would not be the first time that a court has ordered OSHA to take action on a rule. As the result of lawsuit, the 3rd U.S. Circuit Court of Appeals in 2003 directed OSHA to publish a proposed rule limiting occupational exposure to hexavalent chromium by no later than Oct. 4, 2004, and a final standard by Jan. 18, 2006. The day before the deadline, OSHA asked for – and was granted – a 6-week extension "due to unanticipated delays" resulting from the agency's participation in the response to Hurricane Katrina.

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