The United States Occupational Safety and Health Administration (OSHA) has issued a new safety rule that applies to all workplaces and requires employers to pay for the cost of virtually all protective gear used by employees, with some limited exceptions.
Eight years after the rule initially was proposed, the final rule was announced in the Federal Register on November 15, 2007. Employers will have six months to achieve compliance. Affecting OSHA standards for general industry, shipyard employment, marine terminals, longshoring, and construction, the rule goes into effect 90 days from publication (February 13, 2008) and must be implemented within six months (no later than May 15, 2008).
Requirement to Pay
The new regulation makes clear that the employer is responsible to pay for all required personal protective equipment (PPE) that its employees use. Extant OSHA standards require employers to provide their employees with PPE when such equipment is necessary to protect employees from job-related injuries, illnesses and fatalities, but the standards heretofore explicitly have not required employers to pay for PPE.
The new rule provides examples of the types of PPE for which the employer must pay. These include, for example, hard hats, gloves, goggles, welding helmets, safety glasses, face shields, chemical protection equipment and fall protection equipment.
It should be noted that the rule does not impose any new requirements on employers to provide PPE or to pay for any equipment where none has been required before. The rule merely requires that employers pay for the PPE that is used to comply with OSHA standards.
The new rule also specifies some limited exceptions where the employer does not have to pay for PPE.
- Everyday clothing and weather-related clothing, such as long sleeve shirts, street shoes, normal work boots “and other similar clothing that could serve as PPE,” as well as “ordinary clothing used solely for protection from weather” (such as winter coats, jackets, gloves, rubber boots, hats and parkas) and skin creams.
- Non-specialty safety toe specialty footwear (steel toe shoes or steel toe boots) and nonspecialty prescription safety glasses if the employer permits such items to be worn off the job site.
- The employer does not have to pay for shoes with integrated metatarsal protection as long as the employer provides and pays for metatarsal guards that attach to the shoes.
- Logging boots.
Effect on Existing Collective Bargaining Agreements
OSHA’s historic position is that the duty to bargain with unions does not excuse employers from complying with OSHA standards. OSHA, therefore, concluded that the imposition of this new rule does not interfere with collective bargaining. Nevertheless, to reduce the impact on existing collective bargaining agreements, OSHA established a six-month compliance deadline for the final rule. During that time, OSHA expects that some agreements will expire and others will be renegotiated to conform to the new rule. In addition, further collective bargaining is not foreclosed in the sense that employers are free to bargain about discretionary aspects of the new rule.
It is interesting to note that organized labor is claiming some credit for the issuance of this new rule. In January 2007, the American Federation of Labor and Congress of Industrial Organizations and the United Food and Commercial Workers sued OSHA in federal court in the District of Columbia to compel the Bush Administration to issue the rule. In March, legislation was introduced in the House of Representatives to force OSHA to issue the final rule. OSHA issued the final rule before any legislation could be enacted or any decision was issued by the court.