Many Occupational Safety and Health Administration (OSHA) health, safety, maritime, and construction standards require employers to provide their employees with protective equipment, including personal protective equipment (PPE), when such equipment is necessary to protect employees from job-related injuries, illnesses, and fatalities. These requirements address PPE of many kinds: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, faceshields, chemical protective equipment, fall protection equipment, 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. (Ex 1910.132)
Examples of PPE and Other Items Exempted From the Employer Payment Requirements
(List is not all-inclusive)
- Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/ boots).
- Non-specialty prescription safety eyewear.
- Sturdy work shoes.
- Lineman's boots.
- Ordinary cold weather gear (coats, parkas, cold weather gloves, and winter boots).
- Logging boots required under Sec. 1910.266(d)(1)(v).
- Ordinary rain gear.
- Back belts.
- Long sleeve shirts.
- Long pants.
- Dust mask/respirators used under the voluntary use provisions in Sec. 1910.134.
Examples of PPE for Which Employer Payment Is Required
[If used to comply with an OSHA standard]
- Metatarsal foot protection.
- Special boots for longshoremen working logs.
- Rubber boots with steel toes.
- Shoe covers--toecaps and metatarsal guards.
- Non-prescription eye protection.
- Prescription eyewear inserts/lenses for full-face respirators.
- Prescription eyewear inserts/lenses for welding and diving helmets.
- Face shields.
- Laser safety goggles.
- Fire fighting PPE (helmet, gloves, boots, proximity suits, full gear).
- Hearing protection.
- Welding PPE.
- Items used in medical/laboratory settings to protect from exposure to infectious agents (Aprons, lab coats, goggles, disposable gloves, shoe covers, etc).
- Non-specialty gloves:
Payment is required if they are PPE, i.e. for protection from dermatitis, severe cuts/abrasions.
Payment is not required if they are only for keeping clean or for cold weather (with no safety or health consideration).
- Rubber sleeves.
- Aluminized gloves.
- Chemical resistant gloves/aprons/clothing.
- Barrier creams (unless used solely for weather-related protection).
- Rubber insulating gloves.
- Mesh cut proof gloves, mesh or leather aprons.
- SCBA, atmosphere-supplying respirators (escape only).
- Respiratory protection.
- Fall protection.
- Ladder safety device belts.
- Climbing ensembles used by linemen (e.g., belts and climbing hooks).
- Window cleaner’s safety straps.
- Personal flotation devices (life jacket).
- Encapsulating chemical protective suits.
- Reflective work vests.
- Bump caps.
The first exception addresses non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear. (See 29 CFR 1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) The regulatory text makes clear that employers are not required to pay for ordinary safety-toe footwear and ordinary prescription safety eyewear, so long as the employer allows the employee to wear these items off the job-site.
The second exception relates to metatarsal protection. (See 29 CFR 1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) The final rule clarifies that an employer is not required to pay for shoes with integrated metatarsal protection as long as the employer provides and pays for metatarsal guards that attach to the shoes.
A third exception to the final rule is located only in the general industry standard (at 29 CFR 1910.132(h)(4)(i)) and exempts logging boots from the employer payment requirement. The logging standard does not require employers to pay for the logging boots required by 1910.266(d)(1)(v), but leaves the responsibility for payment open to employer and employee negotiation. The final rule makes clear that logging boots will continue to be excepted from the employer payment rule.
The fourth exception to employer payment in the final rule relates to everyday clothing. (See 29 CFR 1910.132(h)(4)(ii); 1915.152(f)(4)(i); 1917.96(d)(1); 1918.106(d)(1); 1926.95(d)(4)(i)) The final rule recognizes that there are certain circumstances where long- sleeve shirts, long pants, street shoes, normal work boots, and other similar types of clothing could serve as PPE. However, where this is the case, the final rule excepts this everyday clothing from the employer payment rule. Similarly, employers are not required to pay for ordinary clothing used solely for protection from weather, such as winter coats, jackets, gloves, and parkas (See 29 CFR 1910.132(h)(4)(iii); 1915.152(f)(4)(ii); 1917.96(d)(2); 1918.106(d)(2); 1926.95(d)(4)(ii)). In the rare case that ordinary weather gear is not sufficient to protect the employee, and special equipment or extraordinary clothing is needed to protect the employee from unusually severe weather conditions, the employer is required to pay for such protection. OSHA also notes that clothing used in artificially- controlled environments with extreme hot or cold temperatures, such as freezers, are not considered part of the weather gear exception.
Under the final rule, employers are not required to pay for items that are not PPE. This includes some of the items identified by commenters above. Uniforms, caps, or other clothing worn solely to identify a person as an employee would not be considered PPE because such items are not being worn for protection from a workplace hazard. Similarly, items worn to keep employees clean for purposes unrelated to safety or health are not considered PPE. Thus, items such as denim coveralls, aprons or other apparel, when worn solely to prevent clothing and/or skin from becoming soiled (unrelated to safety or health), are not considered to be PPE and employer payment is not required by this rule.
The same is true for items worn for product or consumer safety or patient safety and health rather than employee safety and health. Several hearing participants in the food industry mentioned use of hairnets and beard nets in their discussion of PPE worn in food processing plants (Tr. 186-187, 190). To the extent that these items are not used to comply with machine guarding requirements, but are worn solely to protect the food product from contamination, this rule does not require employer payment. Similarly, plastic or rubber gloves worn by food service employees solely to prevent food contamination during meal preparation, and surgical masks worn by healthcare personnel solely to prevent transmitting organisms to patients are not covered by this rule. Of course, cut-proof gloves used to prevent lacerations will be covered by the rule, and employer payment is required.
Ordinary hand tools are also not PPE. While some specific and specialized tools have protective characteristics, such as electrically insulated "hot sticks" used by electric utility employees to handle live power lines, these tools are not considered PPE. They are more properly viewed as engineering controls that isolate the employee from the hazard--similar to safe medical devices (e.g., self-sheathing needles) required under OSHA's Bloodborne Pathogens (BBP) standard--and thus would not be covered by this final rule. (As an engineering control method, however, employers must pay for this equipment.)
The final rule clarifies the issue of who pays for replacement PPE. The final rule requires that the employer pay for the replacement of PPE used to comply with OSHA standards. (See 29 CFR 1910.132(h)(5); 1915.152(f)(5); 1917.96(e); 1918.106(e); 1926.95(d)(5)) However, in the limited circumstances in which an employee has lost or intentionally damaged the PPE issued to him or her, an employer is not required to pay for its replacement and may require the employee to pay for such replacement.
The final rule also clearly addresses the use of employee-owned PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f); 1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may wish to use PPE they own, and if their employer allows them to do so, the employer will not need to reimburse the employees for the PPE. However, the regulatory text also makes clear that employers cannot require employees to provide their own PPE or to pay for their own PPE. The employee's use of PPE they own must be completely voluntary.
This is the final rule as decided by OSHA. If you are in a state that has a program that is approved by OSHA and run by the State, there could be differences that you will need to check on. The OSHA standards are the minimum and some States have passed additional requirements that exceed the OSHA standards. So err on the side of caution, double check the state requirements also.
Copyright 2008 Attard Communications, Inc.