The Occupational Safety and Health Administration (“OSHA”) recently revised its regulation requiring most employers to pay for employees’ Personal Protective Equipment (“PPE”). The rule is intended to clarify OSHA’s PPE Standard and provide employers with control over the issuance and use of PPE. This bulletin will briefly review employers’ major obligations under the new PPE regulation.
Nature of New Obligations for Employers
OSHA’s new regulation generally requires employers to pay for PPE that is used to comply with OSHA standards. The rule also sets out specific exceptions where employers are not required to pay.
Scope of New Regulation
Employers Covered. The Employer Payment for PPE rule applies to all employers in general industry, construction, shipyard, marine terminal, and longshoring operations where PPE is used. For purposes of this rule, OSHA will treat unionized workplaces the same as workplaces without a union or any collective bargaining agreements.
Employers' Regulatory Obligations
PPE for Which Employer Payment Is Required. Rather than impose new requirements regarding PPE that employers must provide, the rule requires employers to pay for PPE used to comply with the amended rule. This requires that employers generally pay for protective equipment, including personal protective equipment used to comply with OSHA standards, with limited exceptions explicitly outlined. Thus, if an item is not PPE or not required by OSHA standards, it is not covered under this rule. When another OSHA provision applies to a particular type of PPE, the payment provisions in that specific standard will prevail.
Examples of PPE for which employer payment is required if used to comply with OSHA Standard:
- Non-prescription eye protection
- Laser safety goggles
- Hearing protection
- Items used in medical/laboratory settings to protect from exposure to infectious agents1
- Respiratory protection
- Ladder safety device belts
- Hard hats
- Reflective work vests
- Chemical resistant gloves, aprons, and clothing
- Special boots for longshoremen working logs
Replacement PPE. OSHA requires that employers pay for the replacement of PPE, except when the employee has lost or intentionally damaged it (unless another OSHA Standard governing the PPE—or a collective bargaining agreement—specifically requires the employer to pay for all replacement PPE even when lost or damaged).
Exceptions to Employer Payment Rule. The employer is not required to pay for:
- Non-specialty safety-toe protective footwear (such as steel-toe boots or shoes) and non-specialty prescription safety eyewear, so long as the employer allows the employee to wear these items off the job-site
- Everyday clothing such as long-sleeve shirts, long pants, street shoes, and normal work boots
- Ordinary clothing, skin creams, or any other items used to protect the employee from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen
- Shoes with integrated metatarsal guards that attach to the shoes. The employer is not required to reimburse an employee for shoes or boots with built-in metatarsal protection when the employer provides metatarsal guards and allows the employee, at his or her request, to use those shoes or boots.
- Logging boots required by certain OSHA regulations
- Where an employee provides adequate protective equipment that he or she owns, the employer may allow the employee to use it and is not required to reimburse the employee for that PPE
Violation of the new Employer Payment for PPE rule may subject employers to the same sanctions applicable to violations of other OSHA regulations. These sanctions include:
- Civil citations for violations OSHA classifies as either “technical,” “willful,” or “serious”
- Monetary penalties up to $10,000 per violation, with a $5,000 minimum for “willful” or “serious” violations and up to $70,000 per repeat violation
The new Employer Payment for PPE rule becomes effective on February 13, 2008. The rule must be implemented by May 15, 2008.