Does Provide Mean Pay For?
As OSHA has recalibrated worker protections, one word can make a big difference. This summer, OSHA has thrown open the question of what "provide" means.
That question is heir to a dispute that began in 1994, when the agency issued rules on safety equipment in dangerous jobs. The rules say an employer must determine what kind of equipment a worker needs -- hard hats, protective gloves and clothing, safety goggles -- and provide it to the employee.
The regulation, however, does not specify who pays for the equipment -- or whether the employer can, as industry has argued, deduct the cost from the worker's wages. A year later, OSHA said that "provide" means "pay for." Industry groups appealed that definition. Eventually, OSHA's review commission decided employers could not be made to pay without a new rule.
In 1998, a federal study found that workers in low-paying jobs more often were being charged for their safety equipment. The practice was most prevalent in the construction trades, where just slightly more than half of employers were picking up the full expense of hard hats and welding goggles.
The following year, OSHA proposed a rule to make clear that "provide" meant "pay for."
That rule was one of many that were not quite final when Bush took office. Last year, after two years of OSHA inaction, a coalition of nine unions petitioned Chao demanding that the rule be issued within two months.
That did not happen. Instead, Henshaw announced in July that OSHA wanted to rethink part of the issue -- particularly for equipment that employees can take from job to job -- and asked for new outside comments. And that was how a rule headed for approval under Clinton became open to further delay and uncertainty.
Agency officials speaking on the condition of anonymity said that, in the end, the government might keep the proposed rule -- or it might decide that employers do not need to pay for certain kinds of safety equipment. Or for any at all.
Critics Conquer TB Standard
Asking for more outside opinions was the same step OSHA officials had taken before they canceled the tuberculosis protections the day before New Year's.
The evidence on the TB standard is mixed.
Government record-keeping is so sketchy it is impossible to tell how many workers are being infected with TB on the job. The two main unions that have lobbied for the protections since the beginning, the American Federation of State, County and Municipal Employees and the American Federation of Teachers, were unable to provide a single example of someone who could talk on the record about having caught TB.
Given the murkiness, the outside opinions that prevailed came from the American Hospital Association and other groups that had long resented the idea of OSHA enforcing safety practices. Opponents said government no longer needs the requirement for tuberculosis tests, patient quarantines and the other protections in the standard.
The disease had waned in most states in the decade since OSHA began developing the TB standard, the critics argued. Besides, they said, the Centers for Disease Control already provided voluntary guidelines for protecting workers.
There was some support for this position in an evaluation of the proposed standard by a respected advisory group, the Institute of Medicine, which had been ordered to conduct the study at the behest of congressional Republicans while Clinton was in office.
But when the study came out the month Bush took office, it concluded that the standard still was worthwhile, even if it might not need to cover as many workers.
In the end, OSHA cited the study in its rationale for eliminating the TB standard.
Unions and public health officials were furious. TB rates continue to increase in many states, they said. Even where the rates have gone down, they said, workers in health clinics or hospitals still run into the disease.
Nicas has conducted research on whether hospitals around San Francisco adhere to the CDC guidelines. Even though the hospitals were doing a better job, he found, all had lapses sometimes. A federal regulation, he said, still is needed.
"The health care industry [does not] like being regulated by OSHA," Nicas said. "But then, that puts them in league with every other industry."
Immediately after winning its long battle to eliminate the TB standard, the nation's hospitals and their allies began a new campaign. They sought to block a rule requiring yearly checks to make sure that the breathing masks of their workers fit correctly.
