For years many employers have been confused about their obligation to pay for personal protective equipment ("PPE"). OSHA has now published a Final Rule clarifying that employers are responsible for the cost of PPE provided to employees.
For years many employers have been confused about their obligation to pay for personal protective equipment ("PPE"). This confusion was caused by the fact that the Occupational Safety and Health Administration (OSHA) had no clear standard that defined who was responsible for paying for PPE. While in most cases OSHA held the employer responsible for providing and paying for PPE, there were exceptions when an employee could be asked to pay for the PPE. At times it remained unclear when or how these exceptions would be applied.
OSHA has now published a Final Rule clarifying that employers are responsible for the cost of PPE provided to employees. While the Final Rule does not create a new obligation to provide additional PPE or different PPE, what the Final Rule does clarify is that, when PPE is required, it is the employer who must provide and pay the costs associated with such PPE (such as hard hats, safety glasses, welding helmets, faceshields, and other PPE). The Final Rule does provide a limited exception when an employer may require that the cost of the PPE be borne by the employee.
Exceptions to the Payment Requirement
Employers are not required to pay for non-specialty safety-toe footwear or non-specialty prescription eyewear, as long as the employer allows the employee to wear these items off the job site and the items are such that they can be used outside the job site.
Additionally, employers are 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. Further, employers in the logging industry are not required to pay for logging boots.
Finally, employers are not required to pay for ordinary clothing, such as long sleeves, long pants, street shoes, etc., that may serve as PPE, nor are employers required to pay for ordinary clothing, such as winter coats, gloves, etc., or items such as skin cream or lotion used solely as protection from the weather. If, however, 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. Note that clothing used in artificially controlled environments with extreme hot or cold temperatures, such as freezers, is not considered part of the weather gear exception.
Replacement PPE
The Final Rule requires the employer to pay for replacement PPE unless the employee has lost or intentionally damaged PPE issued to him or her.
Personal PPE
If an employee voluntarily requests to use his or her own PPE, and the employer permits this, it is not required to reimburse the employee for the cost of the PPE. Note that the employee's use of personal PPE must be completely voluntary.
Effective Date
The Final Rule becomes effective February 13, 2008 (ninety days from the date of publication in the Federal Register). However, OSHA has extended the compliance deadline for six months to minimize the impact on collective bargaining agreements and give employers time to implement the requirements. The compliance date is May 15, 2008.
If you have any questions regarding the new Rule or any other issues relating to OSHA, please contact the Ford & Harrison attorney with whom you usually work or Pedro Forment, a partner in our Miami office, at pforment@fordharrison.com or 305-808-2104.