Special Report: Employer Payment for Personal Protective Equipment, April 2008
On May 15, 2008, a new rule from the Occupational Safety and Health Administration
(OSHA) regarding employer payment for personal protective equipment (PPE) goes into
effect. The rule has had a long, slow journey from its initial proposal in 1999
to final publication, but the new provisions should help eliminate much of the confusion
surrounding payment for PPE required to be worn by workers under various OSHA standards.
The Special Report below explains the new PPE payment rules and OSHA's reasoning
that established the general "employer-payment" requirement, exceptions to the general
rule for PPE of a personal nature, treatment of everyday and weather-related clothing,
employee-owned PPE, and replacement of PPE particularly from loss or abuse.
The effect of OSHA's new PPE payment rules may necessitate policy and program changes
at your company to achieve compliance, but the rules' final publication will settle
a great deal of confusion and eliminate purchasing inconsistencies when OSHA rules
require an employer to provide PPE.
If you have questions about implementing the new rules, please feel free to call
or e-mail me.
NRCA Director of Risk Management firstname.lastname@example.org
(847) 493-7502 or (800) 323-9545, ext. 7502
Employer Payment for Personal Protective Equipment
The Occupational Safety and Health Administration (OSHA) recently released new provisions
regarding employer payment for personal protective equipment (PPE) for workers.
The new rules become effective May 15 and do not change the circumstances under
which PPE is required or the nature of the equipment appropriate for the hazards
encountered. The primary reason for the new rule is to clarify and reduce to regulatory
language the requirement that employers are obligated to pay for PPE with some limited
exceptions and to specifically set out rules with respect to employee-owned PPE,
replacement PPE, everyday clothing and weather-related clothing.
PPE is required by many OSHA standards that also describe the nature of the PPE
required and, in some cases, the minimum design and manufacturing specifications
to which the PPE must conform. Many OSHA standards require employers to provide
PPE to workers who require it, but most provisions are silent as to who must pay
In a 1994 memorandum to its field staff, OSHA established a nationwide policy for
the issue of payment for required PPE titled "Employer Obligation to Pay for Personal
Protective Equipment." As the title clearly suggests, OSHA stated an employer must
provide and pay for all required PPE except in some limited instances. The exceptions
involved PPE of a more personal nature that an employee could use off the job, such
as steel-toe safety shoes. The exceptions to the general rule of employer payment
would be left to labor/management negotiations. However, in 1997, the Occupational
Safety and Health Review Commission vacated a citation against an employer based
on the policy outlined in the OSHA memorandum because it conflicted with earlier
letters of interpretation from the agency. OSHA shortly thereafter initiated the
proposed rulemaking process to settle the issue decisively.
The proposed PPE rule issued by OSHA uses the precepts outlined in the 1994 memorandum
as the basis for the new rulemaking. A uniform requirement applicable to all standards
that require PPE places the burden of payment on employers except for some safety-toe
footwear, logging boots and prescription safety glasses. OSHA relies on the language
and legislative history of the Occupational Safety and Health Act to conclude that
Congress intended employers to pay for PPE because the statute makes employers solely
responsible for compliance with occupational safety and health standards. OSHA states
PPE is a form of hazard control not unlike engineering or administrative controls
for which the principle of employer payment is well settled.
Additionally, OSHA reasons employee protection would be better served by a rule
that requires employer payment because:
Employers are more knowledgeable about workplace hazards and are more capable of
selecting the correct PPE
Employee misuse or non-use of PPE would be reduced by employers maintaining control
over its selection, issuance and use
Employee cooperation with PPE usage would be more likely if the equipment was provided
The final rule published by OSHA follows the basic concepts and rationales of the
proposed rule and clarifies the exceptions with a little more specificity:
An employer is not required to pay for PPE that an employee asks to use that is
different from PPE the employer has provided at no cost.
An employer is not required to pay for ordinary safety-toe footwear or prescription
safety eyewear provided the employer does not restrict use of that PPE off the job
An employer is not required to pay for safety footwear with integrated metatarsal
(instep) protection if the employer pays for metatarsal guards that attach to the
An employer is not required to pay for everyday clothing. OSHA acknowledges that
long-sleeve shirts, long pants, normal work boots and other similar clothing often
serve as PPE. Clothing used solely for weather protection, such as jackets or parkas,
also is excluded from the employer-payment requirement.
Ordinary hand tools are not considered PPE under this rule.
An employer may require an employee who loses or intentionally damages PPE to pay
for the replacement equipment. Reasonable and appropriate disciplinary measures
by the employer, proportionate to the employee offense, are permissible to ensure
employee compliance with PPE care, use and maintenance requirements.
An employer is required to pay for replacement PPE once its useful service life
has been exceeded.
Employees occasionally may want to use their own PPE. If an employer allows it,
employees may do so under the new rules but the employer is not required to pay
for the PPE. An employer may not require employees to provide their own PPE or make
them pay for it. Employees' use of their own PPE must be completely voluntary.
It is important to note that the employer requirement to pay for PPE extends only
to that PPE necessary to comply with OSHA standards and subject to the exceptions
in the new rule. If an item is not PPE or not required by an OSHA standard, employer
payment is not required. Also, it remains an employer obligation to ensure the adequacy
of PPE when employees provide their own and make sure proper maintenance and sanitation
of the PPE is done by employees. For example, an employer must ensure an employee's
personal sunglasses used for eye protection at work meet the requirements of ANSI
Z87.1 as required by OSHA's PPE regulations. Similarly, hard hats with sports team
logos, which are commonly worn by workers, require employer verification that they
meet the minimum requirements of ANSI Z89.1.
Allowances are a convenient and effective method of providing PPE to employees.
An allowance system often takes into account the service life of particular items
of PPE, sometimes setting out the exact service life in months or other time increment.
Failing to take care of, misusing or losing PPE clearly shortens PPE's useful life.
The benefit of an allowance system is that it provides incentives for employees
to care for their PPE so they do not dip into their PPE allowance to pay for a new
item before its service life expiration. OSHA does not prohibit allowance policies
as long as they ensure an employee will receive replacement PPE at no cost to the
employee (subject to the lost or abused PPE exception).
Employer payment provisions for PPE must be implemented by May 15. The new rules
may not have a significant effect on how roofing contractors provide required PPE
to their workers, but the rules may provide stability and structure to common situations
where workers lose or intentionally misuse PPE that a roofing contractor has provided.
The added clarity of the new rules should be useful in implementing replacement
procedures for PPE, disciplining workers for lost or misused PPE, and resolving
potential disputes as to the nature of work clothing and voluntary use of some PPE.