Legal Updates

New OSHA Rule: Employer Pays For Personal Protective Equipment

The federal Occupational Safety and Health Administration (“OSHA”) has issued a final rule (the “Final Rule”) clarifying that employers generally must pay for the personal protective equipment (“PPE”) that they require their employees to wear in order to comply with OSHA standards.  The Final Rule becomes effective on February 13, 2008, but OSHA is giving employers until May 15, 2008 to achieve full compliance.  OSHA intends to commence enforcement immediately thereafter.

The Final Rule was almost ten years in the making.  In 1999, OSHA announced that it was considering a new rule concerning payment requirements for PPE.  In the intervening years, OSHA sought public comment and received numerous unsolicited requests for clarification from both employer and union representatives.  Although the reasons for the delay in promulgating the Final Rule are unknown, OSHA has finally resolved the uncertainty regarding who must pay for mandatory PPE.

The Final Rule does not impose new PPE requirements.  Rather, it clarifies that to the extent that OSHA requires the use of PPE, the employer must pay for it, with four limited exceptions:

• Non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear that the employee is allowed to wear off-site;
• Shoes with integrated metatarsal protection, if the employer otherwise provides and pays for detachable metatarsal guards;
• Logging boots, if payment responsibility under the existing OSHA standard is left open to negotiation between the employee and employer; and
• Everyday clothing, such as long-sleeve shirts, long pants, street shoes, normal work boots and certain types of weather gear, that may serve as PPE.

Under the Final Rule, employers must pay only for the minimum level of PPE required by OSHA.  However, if an employer upgrades its PPE, then the employer must pay for the upgrade.  If an employer provides the required PPE but an employee wishes to use alternative OSHA-compliant PPE, then the employer may approve the alternative PPE but is not required to pay for it.  Similarly, an employer is not required to reimburse an employee for PPE that the employee personally owns and voluntarily asks to use.

The Final Rule does not apply to PPE that is not required by OSHA, such as work uniforms, or sanitary equipment used in food service or health care for purposes of protecting food and consumer/patient health.

The purposes of the Final Rule are to:  (i) provide OSHA with an enforcement tool to ensure that the employer pays for any means necessary to create a safe and healthful workplace; (ii) decrease the incidence of work-related injury and disease; and (iii) clarify for employers and employees any confusion over which PPE employers must furnish at no cost to employees.

In this regard, OSHA expressed concern that employees who are required to pay for their own PPE might “cut corners” and fail to provide themselves with adequate protection.  In OSHA’s view, requiring employers to pay for mandatory PPE is more likely to ensure that the PPE is correct and in good condition.  The new pay rule is also expected to improve the workplace safety and health culture by encouraging employees “to participate whole-heartedly in an employer’s safety and health program.”

OSHA’s PPE requirements arise from the Occupational Safety and Health Act, which directs every employer “to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  OSHA implemented this directive by formulating safety and health standards for various industries.  The OSHA standards specify when PPE is required but are largely silent as to who must pay for it.  The Final Rule fills this gap.

During its development of the Final Rule, OSHA discovered a wide disparity among employers regarding who paid for mandatory PPE.  OSHA noted that the disparity was caused by many factors, including varying provisions of collective bargaining agreements and tradition.  OSHA found that, in some instances, the employer and employee split the cost of mandatory PPE, while in other cases, either the employer or the employee paid for the more expensive or technologically-advanced equipment, leaving the other to pay for the more “common” PPE.

In light of the Final Rule and its limited compliance grace period, employers should review and, as necessary, revise their PPE policies and practices to achieve full compliance.  (A full text of the Final Rule and Supplementary Information can be obtained at the U.S. Department of Labor’s OSHA website at www.osha.gov.)  As failure to comply with the Final Rule and related PPE requirements can result in substantial civil and criminal penalties, including fines and imprisonment, employers should undertake this review promptly.  We are available to assist in determining which PPE is mandatory in your industry and your corresponding payment obligations.