OSHA’s final rule for personal protective equipment (PPE) became effective on May 15, 2008. With few exceptions, most underground utility contractors have not been affected by the changes because they were already providing employees with PPE. However, a recent clarification (final rule effective Jan. 12) allows OSHA to issue a separate violation for each failure to provide the required PPE to an employee. It is therefore more important than ever to ensure that your company is providing the proper PPE to all employees — including construction workers at jobsites, mechanics in the shop and supervisors and managers in the field (or whenever they are visiting work areas). The following information is designed to assist you in remaining in compliance with the final rule and its clarification.

Many OSHA standards require employers to provide their employees with PPE when such equipment is necessary to protect employees from job-related injuries, illnesses and fatalities. These requirements address PPE of many kinds: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets, face shields, chemical protective equipment, fall protection equipment, etc. The provisions in OSHA standards that require PPE generally state that the employer is to provide such PPE. However, some of these provisions did not require the employer to provide such PPE at no cost to the employee.

The new rule (and clarification) requires employers to pay for the PPE provided to employees, with exceptions for specific items such as certain safety-toe protective footwear and prescription safety eyewear. Additionally, the rule does not require employers to provide PPE where none has been required before. Instead, the rule merely stipulates that the employer must pay for required PPE, except in the limited cases specified in the standard.

Items that were considered exempt from the rule such as safety-toe boots and prescription safety glasses were exempted because they are considered to be personal in nature. The final rule allows these specified exceptions as long as they meet the following conditions: 1) the employer permits such footwear or eyewear to be worn off the jobsite; 2) the footwear or eyewear is not used at work in a manner that renders it unsafe for use off the jobsite; and 3) such footwear or eyewear is not designed for special use on the job such as a pair of knee-high, rubber, safety-toe boots. The exceptions do not apply to non-prescription safety glasses, gloves or other standard PPE that the employer may permit workers to use off the jobsite.

OSHA does not expect employers to pay for normal clothing or items not required by an OSHA standard. The final rule clarifies that an employer’s obligation to pay for PPE is limited to PPE that is used to comply with an OSHA standard. For example, OSHA expects the employer to pay for hard hats, non-prescription eye protection, hearing protection, respirators, safety vests, work gloves, welder’s leathers, welding helmets, chain-saw chaps, etc. PPE requirements may vary from one worker to another depending on their job responsibilities.

Ordinary hand tools are not considered to be PPE. Most specialty tools, such as electrically insulated “hot sticks” used by electric utility workers, are considered to be engineering controls rather than PPE and are already required to be paid for by the employer. In brief, the PPE rule does not affect the need to provide workers with specialized tools.
Another example is dust masks and respirators that an employer allows employees to use under the voluntary use (not required by an OSHA standard) provisions of the respiratory protection standard. If an OSHA standard does not require that PPE be used the employer does not have to pay for it. However, many employers already provide the equipment for the comfort of their employees, in which case they should look very carefully at the respiratory standard to determine exactly what the employer must do if the dust masks or respirators are provided even if not required.

Because OSHA has determined that timely replacement of PPE is more likely to occur when the employer is responsible for paying for it, the employer is also responsible for replacing PPE that is no longer functional. In the rare case involving an employee who regularly fails to bring company-issued PPE to the jobsite or who regularly loses or intentionally damages the equipment, the employer is permitted to require the employee to pay for replacement. OSHA suggests that employers use their company disciplinary actions system as a valid means of dealing with employees who fail to bring/use PPE and for dealing with PPE loss and abuse.

OSHA does not object to the employer providing allowances as a means of paying for PPE, as long as the allowance policy covers the cost of the equipment and ensures that employees receive replacement PPE required by a standard when needed at no cost to the employee. An employee should not have to work without PPE if the equipment is worn out, lost or damaged just because he/she used up the allowance. The final rule also makes it clear that employers may not require employees to provide or pay for their own PPE.

It is a common practice in the construction industry for an employer to permit an employee to use his or her own PPE when the employee may have been given the PPE by a previous employer or purchased the equipment because of personal preferences, comfort or some other reason.

Personal protective equipment not only means that you’re looking good on the job site, but that you’re safe as well. The new OSHA rule (and clarification) requires employers to pay for the PPE provided to employees, with exceptions for specific items such as certain safety-toe protective footwear and prescription safety eyewear. Photo by Kevin Rosseel.

The employer must first decide if employee-owned equipment is permitted; if it is, the employer is responsible for its condition and use and for providing an adequate replacement if the equipment is worn out, lost or damaged. In short, the employer is responsible for ensuring that the employee has and uses the proper type of PPE to meet the requirements of applicable OSHA standards.

If the employer owns the PPE, the employer may require the employee to return the PPE upon termination of employment. If the equipment is not returned, nothing in the rule prevents the employer from requiring the employee to pay for it. However, the employer cannot charge for wear and tear to the equipment related to work performed. It has been suggested that a written agreement between the employer and employee upon issuance of the PPE would be an effective way to ensure that the equipment will be returned. Another acceptable alternative is a reasonable deposit system that provides an incentive for employees to return the equipment.

The standard does not prohibit the use of shared PPE or the reuse of PPE by another employee. However, it does require that such PPE be properly sanitized before being used by or issued to another employee. Keep in mind that some PPE cannot be easily sanitized and that special provisions may have to be implemented.

Since it is the employer’s responsibility to ensure that the PPE is properly suited to protect against the hazards of the workplace and fits the employee properly, it is considered a good practice to offer a selection of PPE from which employees can choose. For example, one pair of safety glasses might be too tight or uncomfortable for one employee and still fit another worker perfectly. The important point here is that ill-fitting PPE may not serve its intended purpose and/or may not be used by the employee, thereby putting him or her at risk of injury, illness or death.

As noted above, OSHA has recently issued a clarification of the employer’s responsibility to not only provide PPE, but also to train each employee to properly use the equipment. According to OSHA, the amendment does not add any new compliance obligations. Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a manner different from what is already required. However, the rule does make it very clear that the standards for PPE and training apply to each employee and that each failure to provide PPE or training will be considered a separate violation.

The clarification of these requirements is embodied in changes to the introductory sections of several parts of the OSHA standard, including 1926.20 — General Safety and Health Provisions of the construction standards. The specific changes to 1926.20(f)(1) & (2) are:

(f) Compliance duties owed to each employee.

(1) Personal protective equipment. Standards in this part requiring the employer to provide personal protective equipment (PPE), including respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered by the requirement. The employer must provide PPE to each employee required to use the PPE, and each failure to provide PPE to an employee may be considered a separate violation.

(2) Training. Standards in this part requiring training on hazards and related matters, such as standards requiring that employees receive training or that the employer train employees, provide training to employees, or institute or implement a training program, impose a separate compliance duty with respect to each employee covered by the requirement. The employer must train each affected employee in the manner required by the standard, and each failure to train an employee may be considered a separate violation.

The final rule that became effective on Jan. 12 clarifies OSHA’s intent to ensure that each employee is issued the appropriate PPE to perform his/her tasks safely. In addition, OSHA expects employers to train all employees when to use their PPE, how to use it correctly and how to maintain it in a safe and sanitary condition.

For more information about complying with the PPE changes and a sample PPE policy visit the Washington OSHA Web site at www.lni.wa.gov/wisha/publications/PPEGuide/Checklistforcomplying.doc and www.lni.wa.gov/wisha/publications/ppeguide/sampleppepolicies.doc.

George Kennedy is NUCA Vice President of Safety.