The Occupational Safety and Health Administration (OSHA) can seriously affect any Contractor or construction project. Compliance with OSHA regulations can be time-consuming and tedious, but it is essential to maintain a viable position in the construction industry. This month, as always, we report on recent developments in the world of OSHA.

New Rule for Personal Protective Equipment – Employers Now Pay for PPE

The New Year brings employers a new rule regarding the payment for personal protective equipment. The rule, found in C.F.R. 1926.95, states that “PPE used to comply with this part, shall be provided by the employer at no cost to employees.” This rule has been under consideration since 1999 when OSHA first proposed a rule requiring the employer to bear the cost for personal protective equipment (PPE). The rule was published in final form on Nov. 15, 2007, and on Feb. 13, 2008 becomes effective. Employers are required to comply with the rule by May 15, 2008.

The purpose of this rule, according to OSHA, is to settle the issue of who is to pay for PPE. According to one report, OSHA estimates that employers already pay about 95 percent of the PPE costs. No other new requirements for PPE are added as a result of the rule.

Prior to the addition of this new requirement, some PPE was not explicitly required to be paid for by the employer. The key points of the rule include: items required to be paid for by the employer; exceptions to the rule; replacement requirements; employees providing their own PPE; issues with collective bargaining agreements; and methods of getting the PPE to the employee.

Exceptions include non-specialty safetytoe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site. There is also an exception for metatarsal guards which states: “when the employer provides metatarsal guards and allows the employee, at his or her request, to use shoes or boots with builtin metatarsal protection, the employer is not required to reimburse the employee for the shoes or boots”.

The rule goes on further to state the employer is not required to pay for everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots; or ordinary clothing, skin creams, or other items used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.

Regarding the replacement of PPE, “the employer must pay for replacement PPE, except when the employee has lost or intentionally damaged the PPE.”

Employees can provide their own PPE. This must, however, be strictly voluntary, and the employer is not required to reimburse the employee for their own PPE. Also, if the employee’s voluntarily provided PPE should become unusable or unsafe for any reason, the employer would be required to provide a replacement at no cost to the employee. The employer is responsible for determining the safety of any voluntarily provided PPE the employee brings to work.

The new rule overrides any agreement to the contrary in established collective bargaining agreements. OSHA considered the issue of collective bargaining agreements and received comments on this issue. The consideration of existing agreements where the employee is required to provide certain forms of PPE is one of the reasons OSHA has allowed six months to comply with the new rule as opposed to the standard 90 days.

Discussion of the rule brings up the issue of how the PPE is to be purchased and distributed to the employee. There are four ways OSHA discusses and all are perfectly acceptable.

In the first scenario, the employer purchases and distributes the PPE as needed to the employees. The second is the employer gives the employee an allowance to purchase the PPE. The third is a voucher system where the employers have an arrangement with the vendor to accept vouchers from the employee. The fourth way OSHA discusses is the employee purchases the PPE and the employer reimburses the employee.

This new rule will require employers to examine their policies on PPE and make necessary changes to comply with the rule. One point to keep in mind is that this rule only covers PPE required by OSHA, it does not cover other items like uniforms, items worn solely to keep clean, or other items an employer requires an employee to wear that are not required by OSHA. However, items that at one time were provided by some employees, such as hard hats, safety goggles, hearing protection, and certain types of gloves, just to name a few, are now required to be provided by the employer at no cost to the employee.