Many Occupational Safety
and Health Administration (OSHA) standards require
employers to provide their employees with protective
equipment, including personal protective equipment (PPE).
These requirements address PPE of many kinds: hard hats,
gloves, goggles, safety shoes, safety glasses, welding
helmets, goggles and so forth. The provisions in OSHA
standards that require PPE generally state, that the
employer is to provide such PPE. However, some of these
provisions do not specify that the employer is to
provide such PPE at no cost to the employee. In this
rulemaking, OSHA is requiring employers to pay for the
PPE provided, with exceptions for specific items. The
rule does not require employers to provide PPE where
none has been required before. Instead, the rule merely
stipulates that the employer must pay for required PPE,
except in the limited cases specified in the standard.
This final rule becomes effective on February 13, 2008.
The final rule must be implemented by May 15, 2008.
This OSHA action requires
employers pay for necessary PPE and that requiring
employers to provide PPE at no cost to the employee
would have positive effects on employee safety and
reduce improper use of PPE. While some OSHA rules have
required employers to provide for certain PPE, this rule
fills the void of guidance as to who is responsible for
paying for the PPE. While many states in their own
rules require employer payment for PPE, OSHA's new rule
will have the largest impact on the nearly 59% of
private-sector workers not employed in states with their
own OSHA rules.
This final rule does not
add requirements as to what PPE is to be provided, or
when it must be provided. The rule's purpose is to set
forth a scheme in which employers are required to pay
for PPE necessary to comply with OSHA standards. OSHA
has made it clear that employers must be careful not to
impose rules, requirements, or conditions of employment
in an attempt to circumvent this rule. Significantly,
the rule supersedes collective bargaining agreements
that set forth responsibility for providing certain PPE,
and places the burden solely on employers.
Additionally, the rule could have significant impact on
smaller businesses or businesses with high turnover.
Payment Requirements
This final rule requires
employers to pay for the minimum PPE. Replacement PPE
must also be provided at the employer's expense unless
the employee loses or intentionally damages the PPE. An
employer may enter an agreement with employees regarding
replacement of lost PPE that is taken from the jobsite.
If an employer chooses to use upgraded PPE, they must
provide the upgraded items at no cost to the employee.
This does not, however, extend to upgraded equipment
requested by the employee.
Employers are not limited
in the method of payment they choose, so long as the
equipment is provided at no cost to the employee. Some
methods include purchase and distribution by the
employer, allowances, vouchers, and reimbursement.
Methods that allow employers to exercise the greatest
control are deemed to be the most effective in ensuring
compliance with OSHA standards. Company stores may be
one exception that will be scrutinized if employers are
making a profit from the sale of PPE.
PPE that is excluded from
the employer payment requirements include such items as
nonspecialty safety shoes (unless they are required to
be left at the jobsite), everyday and ordinary clothing,
clothing used to identify a person as an employee, and
items not worn for protection from a workplace hazard.
However, employers will be required to pay for
components that are not considered PPE, but are needed
for the PPE to provide adequate protection. While,
ordinary hand tools are not considered PPE within the
interpretation of this new rule, OSHA did conclude that
electrically insulated tools, while not PPE, are a
"protective control measure" requiring employer
payment. It is too early to tell what equipment and
items this "protective control measure" language may be
applied to in the future.
Effect on Small Business
and High Turnover Industries
Smaller firms may feel
the effects of this rule more so than larger businesses,
especially those smaller companies who will be required
to provide PPE in high turnover industries. OSHA took
this in to consideration, but concluded that turnover
rates and employer size made no difference under this
rule. OSHA concluded that the six-month compliance
window allows time for small businesses to work with PPE
suppliers to negotiate and seek bulk discount prices or
to coordinate with other businesses.
While this rule may be
felt especially hard by small business and high turnover
industries, some options are available. For instance,
employers may own the PPE and require employees to
return the PPE at the end of each shift. Another option
would be to enter into an agreement with employees that
requires return of the equipment if their employment
ends. A system in which a deposit is made for equipment
is possible, however, employers must be careful not to
shift this into a system in which employees are de facto
paying for PPE. A variance may also be requested under
the Occupational Safety and Health Act's provisions,
which will allow an employer more time to comply.
Whatever the case, employer size and employee turnover
do not affect application of this rule.
Collective Bargaining
Agreements
Workplaces that have
collective bargaining agreements with terms governing
the payment of PPE, will also be impacted by this
ruling. Though OSHA recognized that many bargaining
agreements specify who must provide certain PPE, OSHA
has determined that workplaces with agreements should
not be treated differently. Thus, provisions in
collective bargaining agreements requiring employees to
pay for certain items of PPE will no longer be
recognized. The six-month compliance time frame was
determined to be enough to either allow agreements to
expire or allow for renegotiation in compliance with the
new rule. While employers will be required to provide
PPE at no cost to employees, discretionary aspects, such
as how PPE will be provided are still open for
negotiation. This rule will be an important point of
consideration for many employers and union groups in
future negotiations. In the meantime, employers should
be focused on compliance with this rule.
Practical Advice for
Employers
