On November 14, 2007, the Occupational Safety and Health Administration (“OSHA” or the “Agency”) issued the final version of its rule on employer payment for personal protective equipment (“PPE”), initially proposed in 1999. The final rule essentially mandates that, with limited exceptions, employers bear the financial responsibility for all PPE used to comply with OSHA’s various workplace safety and health standards. Although numerous OSHA standards require that employers provide PPE, several of these standards do not explicitly require that the employer bear the financial expense associated with the equipment. The final rule creates this explicit requirement. Nonetheless, OSHA maintains that the final rule merely clarifies and does not alter existing obligations.

Personal Protective Equipment Payment Requirement

The final rule, which becomes effective on February 13, 2008, creates new PPE payment regulations in OSHA’s General Industry standards (Part 1910), Shipyard standards (Part 1915), Marine Terminal standards (Part 1916), Longshoring standards (Part 1918), and Construction Industry standards (Part 1926). The regulations added to each of the industry-specific standards are essentially identical; however, minor changes were made to account for differences between the industries.

Under the new regulations, employers are required, with a few exceptions, to provide, at no cost to employees, “the protective equipment, including personal protective equipment (PPE), used to comply with” OSHA’s health and safety standards. 72 F.R. 64541, 64428 (Nov. 15, 2007). Employers are also required to pay for the replacement of PPE, unless the PPE is lost or intentionally damaged by the employee. Employers are not required, however, to reimburse employees who own adequate PPE and choose to use it. However, the choice wholly belongs to the employee, and the employer is forbidden from requiring an employee to provide or pay for his or her PPE covered by the new regulations.

The new regulations themselves make no distinction between the PPE explicitly required by a standard and the PPE merely made optional by a standard. Nonetheless, throughout its explanations of the regulations, OSHA appears to have read the word “required” into the new regulations. Indeed, in its summary of the regulations, the Agency states that “the rule merely stipulates that the employer must pay for required PPE, except in the limited cases specified in the standard.” 72 F.R. at 64342. Likewise, in its explanation of the new regulations, OSHA indicates that an employer need not pay for the dust masks and other respiratory-protection devices that it permits employees to use under the voluntary use provisions of the respiratory standard because the equipment is not required to comply with an OSHA standard. Similarly, OSHA’s explanation of the new regulations states that employers do not have to pay for flame-retardant clothing that employers require their employees to wear in an effort to comply with the General Industry requirement that employees working with electricity not be permitted to wear clothing that would increase the extent of any injury suffered.

Exceptions

Employers are not required to pay for nonspecialty safety-toe protective footwear or nonspecialty prescription safety eyewear when the employers permit employees to wear such items off the job site. “Nonspecialty” refers to footwear or eyewear not designed for special use on the job. 72. F.R. at 64348. When an employer does not permit employees to take their nonspecialty eyewear or footwear off the employer’s premises, no matter what the reason, the employer must pay for the equipment.

In addition, it is OSHA’s position that any footwear that has additional or specialized protection, such as shoes with nonslip soles, does not fall in the category of nonspecialty footwear and, if required by an OSHA standard, it must be provided at the employer’s expense. However, there is a specific exception for footwear with built-in metatarsal protection. In instances where the employer, at it expense, makes metatarsal guards available to its employees, but permits employees to chose to obtain footwear with built-in metatarsal protection, the employer is not required to reimburse the employees who chose this option for their footwear. Further, the General Industry version of the new regulations provides that employers are not required to pay for logging boots mandated by 29 C.F.R. § 1910.266(d)(1)(v).

Similarly, the new regulations do not require that employers pay for “everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots” or for “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,” even though the employer may require employees to wear such clothing or to use such products. 72 F.R. 64428. However, it is the Assistant Secretary of Labor’s position that when ordinary weather-protection clothing is used to protect employees from artificial heat or cold, the exception does not apply. This distinction between natural and artificial heat and cold does not appear in the new regulations.

Compliance

Employers are required to implement the new PPE payment requirements by May 15, 2008. The final rule does not mandate the means by which compliance with the payment requirements must be achieved. Thus, employers may chose to issue employees PPE allowances, reimburse employees for PPE, or maintain a stock of PPE and dole it out to employees. The employer may choose any method it wishes as long as the result is that employees receive PPE at no cost.

Implications of the New Regulations

The Agency asserts that the new regulations will establish “a clear policy across OSHA’s standards, thus reducing confusion among employers and employees concerning the PPE that employers must provide at no cost to employees.” 72 F.R. at 64344. OSHA contends that by placing, through the Occupational Safety and Health Act (“OSH Act”), the onus for ensuring workplace safety and health on employers, it has always been Congress’s intent that “employers bear general financial responsibility for the means necessary to make workplaces safe.” 72 F.R. at 64343. Accordingly, it is OSHA’s position that payment for PPE has always been a requirement of the OSH Act, and the standards promulgated thereunder, and that the new regulations merely clarify this requirement.

Despite OSHA’s proclamations of clarity, the new regulations may actually result in confusion regarding the PPE for which employers must compensate employees. As currently worded, the new regulations require that employers pay for all PPE used by employees to comply with OSHA standards. However, OSHA’s interpretation of this requirement, expressed in a preface published with the new regulations, conditions payment on the mandatory nature of the PPE under the Agency’s safety and health standards. Under OSHA’s interpretation, an employer need not pay for PPE that is merely suggested by a standard but that an employer mandates in its effort to comply with its understanding of the standard. This interpretation is not, however, consistent with the plain language of the new regulations. Thus, there may still be confusion regarding when an employer is required to pay for PPE not explicitly required by an OSHA standard. This confusion is likely to continue until enlightening rulings are made by the Occupational Safety and Health Review Commission in resolving litigated PPE-payment issues.

Although the new regulations do not clarify employer payment obligations with absolute certainty, they will definitely increase employers’ costs of doing business. OSHA estimates that, across all industries, employers currently provide ninety-five percent of all PPE used by employees in this country. The new regulations are expected to push this number close to one hundred percent. OSHA anticipates that this five-percent increase will result in a total cost of $8.7 million to employers across the nation.