OSHA Rule on Personal Protective Equipment Requires Employers to Pay.

November 28, 2007

The OSHA PPE Final Rule generally requires employers to pay for PPE, and sets forth specific exceptions where employers are not required to pay for such equipment.    Employers are responsible for paying for the minimum level of PPE required by the standards and must amend their policies within six months.  If an employer decides to use upgraded PPE to meet the requirements, the employer must pay for that PPE. If an employer provides PPE at no cost, an employee asks to use different PPE, and the employer decides to allow him or her to do so, then the employer is not required to pay for the item. The employer must also pay for the replacement of PPE used to comply with OSHA standards except in circumstances in which an employee has lost or intentionally damaged the PPE issued to him or her, an employer is not required to pay for its replacement and may require the employee to pay for such replacement.

The rule enumerates the following exceptions to the employer pay requirement:

1. Non-specialty safety-toe protective footwear and non-specialty prescription safety eye wear. Employers are not required to pay for ordinary safety-toe footwear and ordinary prescription safety eye wear, so long as the employer allows the employee to wear these items off the job-site.

2.   Metatarsal protection. 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.

3.    Logging Boots. Employers are not required to pay for the logging boots required by 1910.266(d) (1) (v), but leaves the responsibility for payment open to employer and employee negotiation.

4.   Everyday clothing.  OSHA recognizes that there are certain circumstances where long-sleeve shirts, long pants, street shoes, normal work boots, and other similar types of clothing could serve as PPE. Nonetheless, employers are not required to pay for such everyday clothing. Similarly, employers are not required to pay for ordinary clothing used solely for protection from weather, such as winter coats, jackets, gloves, and parkas. In the rare case that 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. However, clothing used in artificially-controlled environments with extreme hot or cold temperatures, such as freezers, is not considered part of the weather gear exception.

The most interesting part of OSHA’s final rule, as noted by Michael Fox at Employer’s Lawyer, is that it took 8 years to promulgate the rule.