Who Pays for Protection?

Nowell said unions have been trying to force completion of the rule since it was proposed in 1999 because these workers sometimes have to pay at least part of the bill for items like wire-mesh gloves, which are used to protect their hands from being cut while processing chickens.

She said workers often go without protection if a glove is lost or stolen, or worn out equipment is used because they are uneasy about asking for a replacement.

OSHA said that spelling out that businesses must pay the bill would prevent an estimated seven deaths and 47,000 injuries a year among the 20 million covered workers. Mishaps still occur because of the use of worn-out or defective equipment, the agency said.

Richard L. Lobb, spokesman for the National Chicken Council in the District, said industry policy is to pay for the original set of protective equipment. When an item wears out, the employee must turn it in to receive a new one. In cases where equipment disappears, Lobb said, employees might be charged for a replacement.

"Obviously, this gives the employee the incentive to take care of equipment and not lose it or wear it out by using it outside the plant," he said. Employees who cannot afford items like wire-mesh gloves, which can cost up to $65, can have the cost deducted from their paychecks, he said.

Over the years, OSHA has issued various interpretations of the protective equipment rule, saying employers had to pay for the gear, too, except for safety shoes, prescription eyewear and logging boots.

The agency lost a key administrative challenge by Union Tank Car of Chicago in 1997. The ruling said OSHA could not make the company pay for welding gloves and special equipment to prevent workers' feet from being crushed.

This led the agency in 1999 to issue the proposal stating explicitly that employers are the financially responsible party.

The unions' recent complaint calls the agency's inability to issue a final rule "an egregious instance of unreasonable delay.'' OSHA has missed seven of its own deadlines for finishing the rule, despite pressure from congressional appropriators and Hispanic members of Congress to finish the job.

Labor Department officials said in an interview that the issue is complicated and that it is not uncommon for rulemakings to take longer than expected. The scheduled date for a final rule now is May.

"This is not simple," said Bryan Little, deputy assistant secretary for occupational safety and health. "Safety standards aren't always slam-dunks. It's incumbent on us to carefully review the record and come up with the best standard."

OSHA has issued 18,000 citations on the equipment rule since 1999, with violations such as not providing the equipment or not keeping items clean. Cost has not been an issue.

The agency's 2004 response to a query about the issue of who pays may explain why businesses and workers are confused about the rule. It said, in part: ". . . at the present time, OSHA does not view this section as imposing an enforceable obligation on employers to pay for personal protective equipment. Therefore, employees must be afforded the protection of personal protective equipment, regardless of who pays."

Cindy Skrzycki is a regulatory columnist for Bloomberg News. Her e-mail address is cskrzycki@bloomberg.net.