OSHA Announces Final Rule on Employer-Paid Personal Protective Equipment (PPE)

On November 15, 2007, the Occupational Safety and Health Administration (OSHA) announced a final rule on employer-paid personal protective equipment (PPE). Under the new rule, all PPE, with a few exceptions, will be provided at no cost to the employee. The rule provides an approximate implementation date of May 15, 2008 (six months from the effective date of February 13, 2008) to allow employers time to change their existing PPE payment policies to accommodate the final rule. The rule applies to general industry (shop) and construction settings, and does not require PPE where none has been required before. This is a Federal OSHA rule and contractors in state-plan OSHA states (such as California, Washington, and Michigan) can expect a similar rule very soon, if a rule is not already in place.

General Issues

The rule requires that all employers provide and pay for appropriate PPE to protect workers from safety and health hazards in accordance with existing OSHA standards. However, the final rule contains the following exceptions to when employers must pay for PPE:

• ordinary safety-toed footwear and prescription safety eyewear that employees are allowed to take home or wear off the jobsite (if company policy is to allow the employee to take this PPE home and the employee does take it home, the employee is responsible to pay for it);
• “everyday clothing” and weather-related gear that is not considered required PPE (this includes street shoes, non-steel toed work boots, long sleeved shirts, long pants, jackets, parkas, and winter gloves typically worn in shop or construction settings);
• if the employer provides metatarsal guards (top of the foot) but allows employees upon request to wear shoes or boots with built-in metatarsal protection, then the employer is not required to reimburse the employee for the shoes or boots;
• logging boots required under the logging standards do not have to be provided by the employer.

Related Issues

Employers are only required to pay for the minimum PPE that meets applicable certifications and OSHA standards, and is deemed appropriate to the hazards. The employer is not required to pay for “upgraded” PPE requested by the employee.

The final rule also clarifies OSHA’s requirements regarding payment for employee-owned PPE and replacement PPE:

• If the employee provides their own PPE, such as a personal welding helmet, then the employee is responsible for paying for it.
• The employer is not responsible to pay for replacement of any PPE if it is lost or intentionally damaged.

Affect on Collective Bargaining Agreements

In the meantime, some collective bargaining agreements contain language specifying that employers will provide certain PPE to employees at no cost and some specify that employees will be responsible for providing and paying for tools themselves. This rule could have an impact on these agreements. After reviewing the rule carefully OSHA determined that workplaces with collective bargaining agreements should be treated no differently in the final rule than workplaces without collective bargaining agreements.

According to OSHA officials, there is no distinction between this rule and other OSHA standards placing obligations on employers. In fact, in past rulemakings OSHA has required employers to provide PPE "at no cost"; none of these rules has been overturned because they inappropriately interfered with collective bargaining. Compliance with the rule does not conflict with employers' obligations to bargain over mandatory subjects of bargaining under the National Labor Relations Act (NLRA).

The six-month compliance deadline allows employers, employees, and employee representatives to either conduct mid-term bargaining or otherwise come to an agreement concerning their methods for implementing the final rule.

Final Rule: https://www.osha.gov/laws-regs/federalregister/2007-11-15-0

For more information on the safety and health implications of the standard, contact Mike McCullion, Director, Market Sectors and Safety, at 703-995-4027 or mmccullion@smacna.org.

For information on collective bargaining agreements, contact Jason Watson, executive director of labor relations, at 703-803-2981, or jwatson@smacna.org.