OSHA Update - Employers Required To Pay For Personal Protective Equipment
Anthony T. Bowser
On February 13, 2008, the most recent amendments to the Occupational Safety and Health Standards (OSHA) regulations went into effect. The amendments provide fundamental changes to the area of personal protective equipment (PPE) used by employees subject to hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants.
Pursuant to OSHA regulations, protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, must be provided to employees by employers at no cost to employees. Employers are not required to pay for everyday items, such as long sleeve shirts, sunscreen, and non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site.
Importantly, employers must pay for replacement PPE, except when the employee has lost or intentionally damaged the equipment. Thus, employers may require the employee to pay for replacement PPE if the employee loses the equipment or intentionally damages it.
The original draft of the new regulations required that employers replace PPE as a result of regular loss or occasional loss. During the rulemaking process, Congress solicited comments on the proposed rule from industries that would be impacted by the amended regulations. Many commentators argued that the terms were overly subjective and the normal loss and occasional loss terms were subsequently eliminated. In its explanation, OSHA noted that the "rule does not require employers to bear the cost of replacing PPE that the employee has lost, even if it is a single instance. In addition, the PPE may be considered lost if the employee comes to work without the PPE that has been issued to him or her."
OSHA further advised in its comments to the final rule that the intentionally damaged term is to be given its full meaning. In other words, the employer must pay for replacement PPE in situations of normal wear and tear, as well as unintentional damage. An example of an intentional damage situation is where a construction worker misuses a safety harness to tow a truck that results in damage to the harness. Such activity would constitute intentional damage and the employer could require that the employee pay for a replacement safety harness.
Employers may face civil and criminal penalties for non-compliance with the amended regulations. Accordingly, if you are an affected employer and have any questions regarding compliance, please contact CGA Law Firm's Labor and Employment section.
