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The Occupational Safety and Health Administration modified its standards on personal protective equipment (“PPE”), effective February 2008. Although the new rules have been in effect for about a year, employers continue to have questions about the standard. This article attempts to make clear the types of PPE employers are required to provide at no cost to employees and the exceptions. PPE includes items such as safety glasses, safety-toe shoes, protective gloves, respiratory protection, and personal fall arrest systems. Employers affected by these standards include those in general industry, longshore and harbors, and construction.

Many OSHA standards require that employees wear protective clothing and/or equipment. In developing this rule, OSHA is not making changes to any PPE that is required; rather OSHA is attempting to create a clear policy across its standards concerning PPE that employers must provide at no cost to employees. Where an already existing standard conflicts with this PPE rule, the existing standard controls.

Keep in mind that OSHA’s position is that employers are required to provide PPE to employees at no cost when PPE is required for compliance with OSHA standards. However, OSHA has specified that employers are not required to pay for certain items, generally because the items are not “protective equipment.” In addition, employers are not required to pay for employee-owned PPE and/or PPE that has been lost or intentionally damaged by an employee.

Items employers are not required to provide (at no cost) to employees include:

• Non-specialty safety-toe protective footwear (including steel-toe shoes and boots) that is allowed by the employer to be worn off the job.
  
  OSHA has historically taken the position that it is unreasonable for employers to be required to provide safety-toe footwear because selection is governed by a proper and comfortable fit, footwear is not easily transferred from one employee to the next, and is not easy to sanitize. In addition, employers do not normally keep an assortment of shoes in stock and employees frequently wear the footwear to and from work.
  

• Non-specialty prescription safety eyewear that is allowed by the employer to be worn off the job.
  
  The eye protection standards for each industry allow the employer the option of providing either appropriate prescription safety eyewear or alternate protection that can fit over an employee’s regular prescription glasses, such as goggles or a face shield. The goggles or shields must not disturb the alignment of the eyeglasses.

For the purposes of these items, “non-specialty” is used to indicate that the footwear and eyewear is not designed for special use on the job.

• Shoes or boots with built-in metatarsal protection that the employee has requested to use instead of the employer-provided detachable metatarsal guards.
  
  If an employer requires employees to wear metatarsal shoes or boots, the employer is required to pay for them. However, when an employer provides metatarsal guards and allows an employee at his or her request to use shoes or boots with built-in metatarsal protection, the employer is not required to pay for the metatarsal shoes or boots.

• Everyday work clothing.
  
  OSHA does not require employers to pay for everyday clothing even though they may require their employees to use these items, such as long-sleeved shirts or long pants, and even though these items provide some protective value.
  

• Ordinary clothing, sunglasses, skin creams, or other items used solely for protection from the weather.
  
  Employees who work outdoors (e.g., construction work) will normally have weather-related gear and other personal items designed to protect themselves from the elements. These items are exempt from the employer payment requirements.

Other items employers are not required to provide (at no cost) to employees include, but are not limited to:

• Logging boots required by 29 CFR 1910.266(d)(1)(v)
• Sturdy work shoes
• Lineman’s boots
• Back belts
• Dust masks/respirators used under the voluntary use provisions in 29 CFR 1910.134
• Flame-resistant clothing specified in 29 CFR 1910.269

Components of PPE

If a component of PPE is needed to adequately protect an employee from a workplace hazard, the employer must pay for it provided the PPE does not fall within one of the exceptions listed in the final rule. For example, if prescription lenses are needed so an employee can wear a diving helmet or do his or her job, then the prescription lenses must be provided at no cost by the employer. However, if a component is not needed for the PPE to provide adequate protection, then the employer would not be required to pay for the component. For example, employers would not be required to pay for shoe inserts to prevent fatigue because the inserts are not needed for the PPE to perform as designed. In addition, if the PPE in which the component is placed is otherwise exempted from the final rule, the employer is not required to pay for the component. Thus, employers would not be required to pay for cold weather inserts worn under raincoats, because raincoats are otherwise exempt from employer payment. In addition, if a component is needed for PPE to fit properly, the employer is required to provide the component at no cost. Employers are not required to pay for personalized add-ons.

Specialty Items

Employers are required to pay for welding leathers, work gloves when used for protection against workplace hazards, rubber boots with steel toes, prescription eyewear inserts/lenses for full face respirators and welding and diving helmets, chemical resistant gloves/aprons/clothing, barrier creams unless used solely for weather-related protection, climbing ensembles used by line workers, and fire fighting PPE, among others.

Miscellaneous Provisions

Employers are required to pay for initial and replacement PPE except when the PPE is lost or intentionally damaged by an employee. Employers are free to develop and implement workplace rules to ensure that employees have and use PPE. When employers are required to provide PPE at no cost to employees, they must do so regardless of whether the employee is permanent, seasonal, part-time, loaned or temporary. In addition, the employee’s rate of pay is not to be taken into consideration. Employers may utilize any method of payment for PPE, as long as employees are provided PPE at no cost. Where an employee provides adequate protective equipment he or she owns, the employer may allow the employee to use it and is not required to reimburse the employee for his or her own PPE.

We hope you find this information helpful. If you have questions pertaining to the material presented in this alert, please contact any member of our Environmental and Energy or Employment and Labor teams with questions.

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