OSHA Personal Protective Equipment Rule Requires Employers to Pay

On November 15, 2007, the federal Occupational Safety and Health Administration (OSHA) published its new rule regarding employer payment of personal protective equipment (PPE). PPE includes any type of equipment that is used by employees to protect against workplace hazards. Examples include respirators, gloves, masks, special footwear, fall protection harnesses and the like. Many specific OSHA standards include requirements that PPE be provided for employees exposed to hazards. However, until now, there was no definitive policy guiding employers with respect to when PPE must be provided free of cost to employees. Some equipment, particularly in the construction industry where there is a high amount of turnover and temporary and subcontracting situations, employees have historically carried their own PPE, such as hard hats, from job site to job site. Some employees have purchased their own PPE simply because they prefer a particular model for personal reasons.

The new OSHA rule clarifies OSHA’s long-standing policy that employers must provide PPE for employees at no cost to the employee except in very limited enumerated situations. The items that employers are not required to pay for are:

· Non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear if the employer permits such items to be worn off the job site;

· If the employer provides metatarsal guards but allows employees upon request to use shoes or boots with built-in metatarsal protection, the employer is not required to reimburse the employee for the shoes or boots;

· Logging boots required by 29 CFR 1910.266;

· Everyday clothing such as long sleeve shirts, long pants, street shoes, and normal work boots, and winter clothing such as hats, winter coats, and rubber boots; and

· Lost or intentionally damaged PPE does not have to be replaced by the employer.

The rule becomes effective on February 13, 2008 for employers under the jurisdiction of Federal OSHA. However, the rule allows employers to delay until May 15, 2008 to implement the rule. This was permitted to allow employers with collective bargaining agreements to either amend the terms of the agreements or negotiate new agreements. In Indiana, the Board of Safety Review must formally adopt the federal rule before it becomes effective in Indiana; therefore, Indiana employers will not need to comply until that administrative process is done.

Many collective bargaining agreements include provisions about PPE. Employers will need to review their agreements and make sure the terms do not conflict with anything in the OSHA rule. Also, employers will need to review their corporate safety programs, including safety rules and disciplinary programs, to incorporate the dictates of the rule’s provisions with respect to PPE payment and replacement. The rule allows employers to implement allowances for PPE, vouchers, and employee purchase with employer reimbursement. If you use any of these systems, you will need to carefully review the rule to make sure you remain in compliance with the new requirements.

If you have questions about whether this rule applies to you and how to comply, please call Ellen D. Gregory or Ryan Poor.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.