Labor Department Ordered to Respond to Lawsuit

Feb. 23, 2007
A federal appeals court on Feb. 16 ordered the Department of Labor to file a response to a lawsuit that seeks to compel OSHA to promulgate its proposed employer-payment-for-PPE standard.

The U.S. Court of Appeals for the District of Columbia Circuit gave the Labor Department 30 days from the date of its order to respond to the lawsuit, which was filed Jan. 3 by AFL-CIO and the United Food and Commercial Workers (UFCW). The two unions contend that the Department of Labor – which houses OSHA – has been dragging its heels ever since the agency in 1999 proposed a standard that would require employers to pay for the costs of protective clothing, lifelines, gloves and other PPE.

Lynn Rhinehart, an attorney for AFL-CIO, explained to that the appeals court is not ordering the Labor Department to promulgate the proposed standard. The court, however, "has taken a preliminary look at our petition and has decided that it merits a response from the government."

Rhinehart noted that the unions' lawsuit is in the form of a petition for a writ of mandamus, which is a request for a court to order a government agency to perform an action required by law when the agency has failed to do so. Rhinehart added that some petitions in such cases "are just dismissed."

"So we're happy that the court has ordered the government to respond," Rhinehart said. "It's moving the process along, and we hope that at the end of the day the court will agree with us and decide that this is one of those circumstances where the court needs to step in and get the agency off the dime and get them to finish this rule."

OSHA's PPE Rule "Silent" on Payment Issue

The unions' lawsuit points out that many hazard-specific OSHA standards – such as those covering lead, benzene, bloodborne pathogens and confined spaces – require employers to provide PPE at no cost to employees. However, OSHA's general PPE rule – 29 CFR 1910.132 – "is silent on the issue of payment."

The lawsuit cites a 1994 memo written by former Deputy Assistant Secretary James Stanley to the heads of the OSHA directorates that interprets 1910.132 as requiring employers to provide and pay for PPE.

However, in an interpretation letter dated Aug. 25, 2004, OSHA's Richard Fairfax explained that the agency "does not view [1910.132] as imposing an enforceable obligation on employers to pay for PPE."

"Therefore, employees must be afforded the protection of PPE, regardless of who pays," Fairfax wrote.

Courts Have Stepped in Before

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.

Rhinehart asserted that in previous instances in which courts have compelled OSHA to promulgate a standard – such as hexavalent chromium – the standards have been "much more complicated" than the employer-payment-for-PPE rule.

"This is not a hard rule," Rhinehart said. "This is not a complicated rule, and it would not take a lot for the government to finish this rule.

" … So in our view, there's just no good reason why it hasn't been issued by now and it would be nice if rather than fighting the lawsuit the government would simply agree and get it done."

For more, read "Lawsuit Asks Court to Step in on OSHA PPE Rule."

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