The U.S. Occupational Safety and Health Administration (OSHA) has published its long-awaited final rule requiring employers to pay for the personal protective equipment (PPE) that their employees are required to use. (72 Fed. Reg. 64341, Nov. 15, 2007.) PPE includes general safety equipment such as hard hats, safety glasses and gloves, as well as more-specialized equipment such as fall protection harnesses. This rule does not alter the existing regulatory requirements regarding what PPE must be provided, under what circumstances, or how it is used. However, it requires that the employer, rather than the employee, pay for that PPE, with only a few specific exceptions that are listed in the final rule, such as non-specialty safety-toe footwear and non-specialty prescription glasses that can be used off the jobsite and when the employer permits these items to be worn off the jobsite. Employers will also be required to pay for replacement PPE except when the employee has lost or intentionally damaged their PPE.
This rule, originally proposed in 1999 and the subject of many comments in the intervening years, takes effect on February 13, 2008 and must be implemented by employers who are subject to these regulations by May 15, 2008. OSHA directly regulates occupational safety and health in the workplaces of approximately half of the states. However, many states have been authorized by OSHA to implement their own occupational safety and health regulatory programs and regulate workplaces within their state boundaries, so long as their "state plans" are at least as effective as the federal OSHA standards. Those states will have six months from the date of publication of the final rule in which to revise their state standards or demonstrate that their standards are at least as effective as the federal rule without further amendment. Some "state plan" states, including California, already have in place regulations or policies requiring employers to pay for PPE in most circumstances. Those states may not need to amend their regulations.
Employers should take advantage of the implementation window between now and May 15, 2008, when OSHA begins to enforce this new rule, to determine whether they are directly subject to these rules and, if so, review their current practices against the rule to ensure that they are in compliance. If an employer's workplace is subject to state, rather than federal, regulation, they should monitor how their state will be implementing these rules. For employers with workplaces and employees in multiple states and subject to a variety of state and federal occupational safety regulations and interpretations, this development may provide beneficial uniformity to their programs.
Even if an employer currently pays for PPE and, therefore, believes that this rule will not impact their practices, the preamble to the rule provides useful insight into OSHA's interpretation of a number of issues, such as PPE for temporary workers, whether a uniform should be considered PPE, employees who wish to use their own PPE or wish to upgrade to more-costly equipment than that provided by the employer, etc. This discussion may be informative to employers even if they believe they are already in compliance with the new rules because they provide PPE at no cost to their employees.
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