Since 1974, the Occupational Safety and Health Administration (OSHA) has had regulations in effect that require employers to provide personal protective equipment (PPE) to employees as protection for eyes, face, head, and extremities; protective clothing; respiratory devices; and protective shields and barriers. In addition, the employer is required to ensure that employees use the PPE when exposed to the hazard and that the PPE be maintained in a sanitary and reliable condition so that it would function as intended. Throughout the history of the regulations, there have been ongoing disputes between employers and OSHA over which specific PPE the employer would be required to provide at no cost to the employee.
On November 15, 2007, OSHA published its final rule in the Federal Register (Vol. 72, No. 220, pp. 64342-64430) clarifying the employer’s obligation. The final rule becomes effective on February 13, 2008, and must be implemented by May 15, 2008.
Employer Duty to Conduct PPE Assessment
Existing OSHA regulations require an employer to conduct a hazard assessment to determine if hazards are present, or likely to be present, that necessitate the use of PPE (29 Code of Federal Regulations (CFR) 1910.132(d)(1)). In that regard, employers are required to conduct a broad assessment of the various aspects of the job to determine whether the following hazards to employees may be present: hazards of process or environment, chemical hazards, radiological hazards, or mechanical irritants, which are likely to be encountered in the workplace in a manner capable of causing injury or impairment to the body through absorption, inhalation, or physical contact.
This assessment requirement has existed since 1994 and employers are already subject to citation for failure to perform. Many employers are unaware that there is a requirement for a written certification that such hazard assessment has been performed (29 CFR 1910.132(d)(2)), which OSHA will request if an inspection is conducted involving PPE compliance and will cite as a violation if it is not forthcoming.
Employer Duty to Provide PPE and Training, and Pay for PPE
Once the employer has completed the hazard assessment, the employer must provide the PPE to the employee, train the employee in its proper use, and enforce the use of PPE through appropriate discipline. This training includes when PPE is necessary; how to properly don, doff, adjust, and wear PPE; the limitations of the PPE; and the proper care, maintenance, useful life, and disposal of PPE, and requires the employee to demonstrate to the employer that the employee understands this training (29 CFR 1910.132(f)(2)). Finally, there is an existing requirement for the employer to generate another written certification that the employee has understood the foregoing training (29 CFR 1910.132(f)(4)). OSHA can issue citations for failure to prepare such certification.
Obviously, once the employer has determined that PPE is required, the issue arises over who will pay for it – the employer or the employee. In an effort to finally clarify who pays for PPE, OSHA began the rulemaking process in 1999, which resulted in the final rule eight years later. The final rule adds a new subpart for each industry sector subject to the rule. For general industry, the new rule is designated as 29 CFR 1910.132(h), “Payment for protective equipment.” This subpart defines new clarifications regarding payment for PPE.
The subpart contains two tables. Table V-2 contains an extensive list of PPE for which employer payment is required if used to comply with an OSHA standard. It is important to note, however, that this list is not all-inclusive since the employer’s PPE hazard assessment (discussed above) will be the determining factor for which PPE is required for the job, thereby imposing the obligation to pay for it upon the employer.
Conversely, OSHA has included Table V-1, Examples of PPE and Other Items Exempted from the Employer Payment Requirements, for which the employer is not required to pay. Again, this list is illustrative and many other items may be exempted based upon the employer’s hazard assessment.
Duty to Pay if PPE Lost or Damaged
While the employer must pay for PPE required within its hazard assessment, the employer has the right to require employees to pay for PPE if the employee loses or intentionally damages the PPE (29 CFR 1910.132(h)(5)). This situation will arise when the employee reports to work without his/her PPE or the employer conducts its walk-around of the worksite and observes that the PPE is so damaged (not due to normal wear and tear) that the employer can determine the damage is intentional. At that point, the employee cannot be allowed to work unless the PPE is replaced and the employer can require the employee to pay for the replacement PPE. The employer can also follow its normal disciplinary policies to discipline the employee for losing or intentionally damaging the PPE, which is employer-owned property.
It should be noted that if the PPE is damaged due to normal wear and tear caused by the job activities or environment, the employer must replace the PPE at its cost and the employee is not subject to discipline.
In many instances, employees may voluntarily provide items that constitute PPE, and if so, the employer has no obligation to pay for the PPE. However, the employer must evaluate and determine that this PPE is at least as effective as that required by the employer’s hazard assessment, and if it is not at least as effective, the employer must provide the PPE. In addition, if at any time the employee-supplied PPE is no longer functional or the employee declines to provide it, the employer’s duty to provide PPE becomes effective.
Since OSHA will be focusing on PPE compliance after May 15, 2008, employers must now focus on their compliance efforts, including:
• verifying their initial PPE hazard assessment and written certification;
• confirming employee training on PPE use and written certification;
• developing policies on issuance of PPE, use of employee-supplied PPE, inspection and replacement program for use of PPE, and, finally, discipline for loss or intentional damage to PPE.
If the employer utilizes the phase-in period wisely, it will avoid potential liability for citations by the agency.
Labor and the Law - February 2008 Render