On November 15, 2007, OSHA issued a rule (eight years after its initial proposal) requiring employers to pay for employee’s necessary protective equipment. Although the agency’s new rule is a scant seven paragraphs in length, OSHA, aware of its controversial and far-reaching implications, required 86 pages to explain and attempt to justify it. This controversial action, taken in the wake of a lawsuit filed earlier this year by the AFL-CIO, is likely to be the subject of litigation prior to the rule’s February 13, 2008 effective date. This article summarizes the requirements of the rule.

The Rule

Although it does not address the circumstances in which “protective equipment, including personal protective equipment” (“PPE”) is necessary or purport to require new types of PPE, the rule does generally require employers to pay for equipment needed to protect employees from chemical, radiation, and mechanical hazards that could injure employees. Because employers are required to assess their workplaces to determine the need for protective equipment, the rule means that employers will now be charged with identifying the equipment that they must also pay for. In addition to any initial purchase, the requirement to provide PPE “at no cost” also requires employers to pay for replacement PPE, unless the employee has lost or intentionally damaged it.

Unlike other standards, which require employers to pay for time spent obtaining evaluation or monitoring, however, the standard provides that the term “at no cost” means simply the cost of the item, and not the time spent shopping for such PPE. In addition, the rule does specifically exempt employers from paying for:

  • non-specialty safety-toed protective footwear such as steel toe shoes and boots and nonspecialty prescription safety eyewear unless the employer does not allow such items to be worn off-site;
     
  • shoes with built-in metatarsal (the long bones connecting the ankle bones and the toe bones) protection if the employee wears such shoes at his or her own election and the employer provides guards that can be attached to shoes without integral metatarsal protection;
     
  • logging boots;
     
  • everyday clothing such as long-sleeve shirts, pants, street shoes, and normal work boots; and
     
  • ordinary clothing, skin creams and other items used solely to protect employees from the weather (such items include winter coats, jackets, gloves, parkas, harbor boots, hats, rain coats, sunglasses, and sunscreen).

Finally, employers are not required to reimburse employees for their use of protective equipment if the employees voluntarily elect to use their own equipment in lieu of equipment provided by the employer.

Effective Date

The revision to the rule becomes effective February 13, 2008. Employers must implement the PPE payment requirements on or before May 15, 2008. In other words, OSHA will not begin issuing citations to employers until May 15, 2008.

Implications

What does this new rule mean for employers? It is likely that the new rule will be challenged. Nevertheless, employers would be well advised to take the following steps:

  • First, in compliance with existing regulations, employers should review their workplaces to ascertain whether employees may be exposed to hazards that would necessitate the provision of PPE. For example, are employees exposed to hazards from heavy rolling objects or falling items that might necessitate foot protection? Do employees work with materials which, because of their ability to cut or burn employees that might require a provision of gloves or sleeves? In performing this analysis, employers should review their injury and illness logs as well as consider employee comments and common sense.
     
  • For those hazards that are identified, employers should consider whether PPE is necessary to protect employees.
     
  • Employers should consider whether appropriate protection can be afforded through the use of ordinary clothing and safety equipment that can be worn both on and off the site. Such clothing need not be paid for by the employer. Thus, clothing requirements may be one means of minimizing the effect (and cost) of this rule.
     
  • If PPE is necessary to protect employees from hazards in the work environment, employers should consider what types of PPE are necessary to protect workers. Employers should consider not simply what employees might prefer but what will actually be effective. In making this analysis, however, employers should consider whether employees will actually use or wear the equipment and the difficulties that may be imposed in attempting to police use by workers. It may not make sense to obtain equipment that is uncomfortable and that will not be worn by employees simply because it is cheaper.
     
  • With respect to safety equipment that is unique to the job, employers should consider how such equipment will be provided. In this connection, employers may wish to consider establishing a relationship with a vendor in order to obtain cost reductions.
     
  • Finally, employers should consider procedures relating to the proper care and use of any required PPE in a further effort to reduce costs due to excessive wear and tear by employees that could result in more frequent, employer-paid-for replacement.