OSHA Publishes Final Rule Regarding Payment of Costs For Personal Protective Equipment

The Occupational Safety and Health Administration recently announced publication of a final rule that will require employers, with only a few exceptions, to provide personal protective equipment (PPE) to employees at no cost to the employee, where such equipment is already required by OSHA.

The rule was published in the Federal Register on November 15, 2007. Employers will have to implement the new PPE payment requirements no later than May 15, 2008. 

Under the new rule, employers will have to provide PPE at no cost to employees where PPE is already required by OSHA, except in the following situations:

• Non-specialty safety-toe protective footwear (i.e., ordinary safety-toe shoes or boots without additional safety attributes) and non-specialty prescription safety eyewear do not have to be provided if the employer allows these items to be worn off the job-site;
• Employers who provide external metatarsal guards and allow employees to use shoes or boots with built-in metatarsal protection do not have to reimburse employees who ask to use shoes or boots with built-in protection;
• Logging boots required under OSHA regulations do not have to be provided at employer expense; and
• Employers do not have to pay for employees’ everyday clothing, such as long-sleeve shirts, long pants, street shoes and normal work boots, or ordinary clothing items, skins creams, or other items used solely for protection from weather.

Employers will also have to pay for replacement PPE, except where an employee has lost or intentionally damaged it.  Significant issues may arise for employers in determining when PPE must be replaced, whether or not it was lost or intentionally damaged, the amount of costs that employees must pay to replace PPE in such situations, and what disciplinary action may be appropriate for employees who have lost or purposefully damaged such equipment.  Employees may continue to use personally owned PPE at their own expense, so long as it is satisfies OSHA requirements for PPE.

States or U.S. territories with their own OSHA-approved safety and health plans (including, but not limited to, Arizona, California, Kentucky, Maryland, Michigan, North Carolina, South Carolina, Tennessee and Virginia) will have to revise their standards to comply with this new rule within six months of the date of the final rule’s publication, unless they can demonstrate to OSHA that an existing state standard regarding this issue is at least as effective as the new rule would be. 

A significant concern for employers will be the costs associated in complying with this rule.  OSHA estimated the total costs of compliance for employers as $85.7 million for all workplaces. 

One example of the costs of complying with this rule is seen in the estimated PPE costs required for an employee in the construction industry, which would often consist of the following items – hard hat, gloves, safety glasses, external metatarsal guards, and fall protection.  In the final rule, OSHA estimated the annual costs for these items as follows:

 

Hardhat	$8.20
Gloves	$34.64
Safety Glasses	$6.20
External metatarsal guards	$7.75
Fall protection	$80.20
Total Costs:	$136.99

Whether or not the benefits of this rule will outweigh the economic costs to employers remains to be seen, although OSHA estimates that the rule will result in 21,000 fewer occupational injuries per year, with an estimated annual savings of $39.2 million per year in medical costs of injuries preventable by the proposed rule. 

The final rule applicable to general industry will be published at 29 C.F.R. § 1910.132.  Identical provisions applicable to shipyards, longshoring, marine terminals, and construction will also be published in Title 29 of the Code of Federal Regulations.

Additional Information

For assistance with this or other safety and health issues, please contact the attorney with whom you normally work, a member of our Workplace Safety and Health practice group, or contact our Client Services Department at (866) 287- 2576 or by email at clientservices@ogletreedeakins.com. 

Note: This article was published in the January 18, 2008 issue of the Workplace Safety and Health eAuthority.