OSHA Issues Notice of Proposed Rulemaking on Personal Protective Equipment for Construction Employees

On July 20, 2023, the Occupational Safety and Health Administration (OSHA) issued a notice of proposed rulemaking (NPRM) that would amend 29 C.F.R. 1926.95(c) to require construction employers to make personal protective equipment (PPE) available that “properly fits” their employees.

Quick Hits

• OSHA issued a proposed rule that would require construction employers to provide employees with PPE that “properly fits.”
• OSHA stated that improperly fitting PPE is an important issue for smaller workers, particularly some women.
• The proposed rule’s sixty-day public comment period will end on September 18, 2023.

The proposed rule has a comment period lasting sixty days, i.e., until September 18, 2023. Depending on the feedback received during the comment period, OSHA may change course and not pursue such a rule. If OSHA proceeds, there are several steps in the process of altering an OSHA standard that will result in a delay of at least six months before 29 C.F.R. 1926.95(c) is actually altered.

OSHA stated in the NPRM that PPE that does not properly fit is an issue for “smaller construction workers,” particularly women. OSHA’s preliminary economic analysis indicates that the proposed change of rules is not an “economically significant regulatory action” that will “impose new costs on employers,” as the rule does not change, but instead clarifies, the requirement to provide “properly fitting” PPE. The preliminary economic analysis appears to recognize that not all employers have complied with that requirement relative to the way PPE fits users.

The construction standards, unlike the maritime and general industry standards, do not specify that PPE must fit properly. Instead, they require that PPE provide adequate protection to employees. This requirement, OSHA stated in the NPRM, corresponds with an obligation that PPE fit properly. (“PPE must fit properly in order to provide adequate protection to employees,” according to the NPRM.)

The industry has expressed concern about altering 29 C.F.R. 1926.95(c) to require employers to provide PPE that “fits properly” in response to a Standards Improvement Project–Phase IV (SIP– IV) recommendation related to the standard. The core of the industry’s concern is that the proposed rule places a requirement that an employee’s PPE fit properly but does not provide an explanation for how “properly fitting” PPE will be defined. This gap in clarification would create significant opportunity for employees to complain about whether provided PPE “properly fit” them if the PPE was simply uncomfortable.

OSHA’s response to this concern was that in the agency’s experience “employers in general industry have had no issue understanding the phrase ‘properly fits’ with regard to PPE.” The response would not appear to obviate the need for a definition for whether PPE “properly fits.” Nevertheless, OSHA’s NPRM (Table 1) does provide some delineation between (1) employer-provided PPE that is considered to have a “universal fit,” making it “completely adjustable and capable of fitting any person,” and (2) employer-provided PPE that does not have a “universal fit” and therefore would likely be at the center of potential fit concerns. OSHA’s Table 1 notes that there is also PPE provided by the employee and reimbursed by the employer—thereby presumably putting the onus of having properly fitting PPE on the employee.

OSHA included an example of ill-fitting PPE in construction based on the first category of PPE when “legs of protective garments that are too long could cause tripping hazards and impact others working near the worker with improperly fitting PPE.”

The NPRM continues to discuss the perceived ambiguity and states:

Appendix B of 29 CFR 1910, Subpart I (PPE), which provides assistance for employers in selecting PPE, provides: “5. Fitting the device. Careful consideration must be given to comfort and fit. PPE that fits poorly will not afford the necessary protection. Continued wearing of the device is more likely if it fits the wearer comfortably. Protective devices are generally available in a variety of sizes. Care should be taken to ensure that the right size is selected.”

OSHA indicated the same sort of clarification would apply to the modification of 29 C.F.R. 1926.95(c).

Many employers subject to the construction standards already provide PPE in a range of sizes and types to ensure their employees have PPE that “properly fits” them.

Regardless, there remains a concern as to whether providing these ranges of sizes would sufficiently comply with the requirement to have PPE properly fit employees. The industry could potentially prepare for this change by assuming that employer-provided PPE that does not have a “universal fit” will be the focus of “proper fit” concerns. However, OSHA’s NPRM does not guarantee that such an approach would ensure compliance with this new requirement. As a result, if the proposed modification to the PPE standards becomes a rule, it is likely that many construction employers will be stocking a much broader array of PPE than they currently do.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will publish updates on the Construction and Workplace Safety and Health blog as additional information becomes available.

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