New OSHA Rule Requires Employers To Pay For Most Personal Protective Equipment.

Under a new Occupational Safety and Health Administration (OSHA) rule, employers must pay, with limited exceptions, for their employees' personal protective equipment (PPE) when the gear is necessary to protect employees from job-related injuries, illnesses and fatalities. Employers must comply with the new rule by May 15, 2008.

According to Edwin G. Foulke, Assistant Secretary of Labor, employers currently pay for roughly 95 percent of the cost of PPE. Nonetheless, the new rule is expected to cost employers an additional $85 million.

The new rule, which was first proposed in 1999, is intended to eliminate confusion over an employer's obligation under the Occupational Safety and Health Act to "provide" its employees with PPE. Over the years, disputes have arisen over whether "provide" means that employers must bear the cost of the equipment. While resolving that issue, the new rule does not mandate that employers provide PPE where it is not already required to do so.

Generally, an employer must provide PPE if it used to comply with an OSHA standard, including, for example:

Certain footwear, such as rubber boots with steel toes, shoe covers (toe caps and metatarsal guards) and special boots for longshoremen working logs (but see exemptions below)

Non-prescription eye protection, including goggles 

Prescription eyewear inserts/lenses for respirators and welding and diving helmets

Hard hats and face shields

Fire fighting and welding PPE (helmet, gloves, boots, proximity suits, full gear)

Hearing protection

Items used in medical/laboratory settings to protect from exposure to infectious agents (aprons, lab coats, goggles, disposable gloves, shoe covers)

Non-specialty gloves, if required, e.g., for protection from dermatitis, or severe cuts or abrasions, but not if they are only for keeping clean or for cold weather

Barrier creams (unless used solely for weather-related protection)

Respiratory and fall protection gear and personal flotation devices (life jackets)

Reflective work vests

In addition, the new rule requires employers to pay for replacement PPE, except when the employee has lost or "intentionally damaged" the PPE.

The new rule specifically provides that employers need not pay for the following PPE:

Non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site

Shoes or boots with built-in metatarsal protection, if the employer provides metatarsal guards and allows the employee, at his or her request, to use shoes or boots with built-in metatarsal protection

Logging boots for use in logging operations

Everyday clothing, such as long-sleeve shirts, long pants, street shoes and normal work boots; or ordinary clothing, skin creams or other items used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses and sunscreen 

Further, where an employee provides adequate protective equipment he or she owns, the employer may allow the employee to use it and is not required to reimburse the employee for that equipment.

The new rule and explanatory notes are available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=20094

OSHA's PPE standards are available at http://www.osha.gov/SLTC/personalprotectiveequipment/standards.html

Bottom Line Obviously, employers who now require employees to pay for OSHA-mandated PPE must revise their policies, unless the PPE meets one of the rule's enumerated exemptions. In reviewing their PPE obligations, employers may also want to re-evaluate the status of workers regarded as independent contractors to ensure that these workers are properly classified under OSHA's exacting independent contractor test. While employers need not pay for the PPE of independent contractors, they are obligated to pay for the PPE of all workers deemed "employees" by OSHA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Robert Nichols

Bracewell & Giuliani LLP 

711 Louisiana Street

Houston

Texas

UNITED STATES

E-mail: [e-mail]

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