OSHA ANNOUNCES PERSONAL PROTECTIVE EQUIPMENT RULE

By Leonard I. Pataki

Quick, what takes more than eight years and a federal lawsuit to get done, but doesn't really change much of anything? The answer to that question is: OSHA's final PPE (Personal Protective Equipment) Rule.

OSHA has long required the use of personal protective equipment in situations where there is a reasonable probability of injury that could be prevented by that equipment. OSHA's general rules require eye, face, and head protection, the use of protective clothing and respiratory protection when necessary, as well as protective barriers, shields and the like, depending on the hazards involved.

OSHA's existing rules require employers to assess the workplace to determine if hazards are present, and then decide what type of PPE is appropriate to protect employees from those hazards. Employers must have written workplace hazard assessment programs to prove that they have taken these steps, and must periodically review the workplace for any changes that would require reassessment of the hazards. All employees must be trained in the proper use of PPE and that training must be certified in writing and maintained in the employer's records. For certain types of PPE, such as respirators, there are more extensive requirements, including individual fit testing. All of OSHA's PPE rules for general industry can be found in 29 C.F.R. §§ 1910.132 to 138.

While the rule that PPE is required as been clear, the big question has always been, "Who pays for this stuff?"  

In 1997 the Occupational Safety and Health Review Commission ruled that OSHA's existing PPE standards could not be interpreted to require that employers pay for protective equipment. In response, in 1999 OSHA issued a Notice of Proposed Rule Making, stating that it intended to create such rule requiring employers to pay for PPE. The target date for the rule was announced as July of 2000. Not only did the July of 2000 deadline come and go, but OSHA missed its subsequent self-imposed deadlines to issue the rule so many times, it simply stopped listing a target date for completion of the PPE payment rule at all in its annual regulatory agendas. This state of affairs continued until January of 2007, when the AFL-CIO and the United Food and Commercial Workers Unions filed a lawsuit in the United States Court of Appeals for the District of Columbia asking that OSHA be ordered to issue the PPE payment rule.

On November 15, 2007, OSHA issued its Final Rule on employer payment for personal protective equipment, published for general industry at 29 C.F.R. §1910.132(h). So, after all this time, what do we have?

The first thing to keep in mind is that the new PPE rule does not change the existing OSHA rules concerning when PPE is required. Employers still must do everything they were required to do before. They still must assess their workplace, determine what hazards exist, and determine the proper methods of protecting employees. The only thing that changes is that employers now must pay for PPE required in the workplace. While that sounds like a big change, for the vast majority of employers in the United States it means very little, since it is estimated that ninety-five percent of the cost of personal protective equipment is already being paid by employers. In the case of unionized employees, for instance, payment for PPE is typically the subject of union bargaining, and is typically required. In most non-unionized businesses, the employer pays for the PPE simply because it is easier to be sure that all of the PPE is of uniform quality, and that it is available to all employees, if it is provided by the employer.

Some items of PPE are "no-brainers," such as hard hats, respirators, flame-proof suits, and the like. The rule commonly followed by most employers -- if you can wear it on the street, it's not something the employer is going to buy -- generally still applies. The new rule doesn't cover uniforms, caps, or other clothing employees wear solely for the purpose of identifying them as part of a particular company (although many employers supply this) or payment for items that do not constitute PPE. There are also exceptions for ordinary protective equipment that can be worn off the job, such as safety-toe shoes, prescription safety glasses, and long-sleeve shirts, logging boots, etc. Specifically, the new rule does not require employers to pay for non-specialty safety-toe shoes and boots or non-specialty prescription safety glasses, provided that the employer permits those items to be worn off the jobsite. The rule also specifically exempts everyday clothing, such as long-sleeve shirts, long pants, street shoes, normal work boots, ordinary clothing, winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, skin creams, and sunscreens.

While the new rule requires that employers pay for PPE in the first instance, it also clarifies OSHA's position concerning employee-owned PPE and replacement PPE. If an employee chooses to use PPE they already own, the employer is not required to reimburse the employee for that PPE. However, the standard makes it clear that employers cannot require employees to provide their own PPE and an employee's decision to use personally owned PPE must be completely voluntary. Even when an employee provides their own PPE, however, the employer must still examine it and ensure that it is adequate to protect the employee from the hazards in the workplace, since this remains the employer's responsibility, even if the employee provides their own PPE.

Finally, the rule specifically requires that employers pay for replacement PPE, but excepts situations where an employee has lost or intentionally damaged the PPE. In those cases, the employer is not required to pay for replacements.

Although the rule becomes effective February 13, 2008, there is an enforcement suspension provision which gives employers until May 15, 2008, to implement the rule and pay for employee PPE before citations will be issued.

One issue that may crop up in the future is whether PPE has been "lost" or "intentionally damaged" so that the employer is not required to pay for replacement. As a practical matter, proving that an item of PPE was intentionally damaged by the employee is probably going to create more trouble than the value of the PPE can possibly justify, and the employee certainly can't go back to work without replacement PPE, so it's unlikely that most employers are going to enforce that portion of the new rule. In any event, an employee who intentionally damages company equipment can be dealt with through other disciplinary methods that are definitely more effective from the employer's standpoint.

The bottom line is that most employers already provide PPE as a matter of course. Given the small relative cost of a hard hat and a set of safety glasses compared to a head injury or an eye injury, it simply makes sense to provide this equipment to employees. Requiring employers to pay for the equipment, however, makes it clear that OSHA expects this to be a responsibility taken seriously by employers, who now have no excuse for not providing their employees with PPE, and seeing that its in use. When the enforcement suspension period ends in May of 2008, employers can expect examination of PPE and questions about how it is provided to become a regular part of OSHA inspections. OSHA's given us plenty of time to comply, so it's time to get going to make sure you have an up-to-date written hazard assessment program, and make sure all your employees are properly trained in the use of their PPE.

The author may be reached at lpataki@dsda.com