Protective Equipment: OSHA Clarifies Employers’ Duty

Employer doesn’t have to pay for “non-specialty” shoes, eyewear and headwear that can be worn at home.

OSHA recently issued a directive that attempts to clarify employers’ obligations with respect to the selection of and payment for personal protective equipment (“PPE”). Most significantly, the directive, to be used in part to guide OSHA Compliance Safety and Health Officers (“CSHOs”), elaborates on the employer payment standard that was promulgated in 2007 and became effective on February 13, 2008. The directive also updates various references to national consensus standards in the PPE standards and deletes others. And, it provides guidance to CSHOs based on recent developments in occupational safety and health case law.

The general industry standard on employer payment for PPE, 29 C.F.R. § 1910.132(h), and its equivalent in the construction standards, 29 C.F.R. § 1926.95(d), require employers to provide, at no cost, PPE used to comply with other OSHA standards. These payment standards, though, contain certain exceptions. For example, employers are not required to pay for “non-specialty safety-toe protective footwear” (including steel-toe shoes or steel-toe boots) and “non-specialty prescription safety eyewear,” as long as such items may be worn home. Other examples of exempted PPE are “everyday clothing” such as “long-sleeve shirts, long pants, street shoes, and normal work boots.”

In the directive, OSHA provides specific examples of PPE that are subject to employer payment as well as examples of PPE that are not subject to employer payment. Some examples of PPE that employers must provide at no cost include:

• Metatarsal foot protection;
• Rubber boots with steel toes;
• Non-prescription eye protection;
• Hard hats/Bump Caps;
• Hearing Protection;
• Personal fall protection; and
• Reflective work vests.

Yet there are many items listed by OSHA that employers are not required to provide at no cost that clarify the exceptions in the standard. Among these are:

• Sturdy work shoes;
• Non-specialty slip-resistant, non-safety-toe footwear;
• Items worn for patient safety and health, not employee safety and health; and
• Uniforms, caps or other clothing worn solely to identify a person as an employee.

The directive also makes it clear that employers are not required to pay for the travel time and related expenses that employees incur in shopping for PPE.

OSHA’s new directive, while mostly restating the PPE standards themselves and providing technical updates, does significantly impact employers in the area of employer payment. Before the directive, for example, it was unclear to some as to whether certain types of footwear were subject to the payment rule. By clarifying that “non-specialty slip resistant footwear” is among the exceptions to the payment rule, OSHA clearly has indicated that employers who require their employees to wear standard work boots that provide slip-resistant qualities (such as a typical Red Wing or Wolverine boot) need not pay for such footwear.

The authors are attorneys with the OSHA Practice Group of Sherman & Howard. For more information, visit www.shermanhoward.com/Services/SafetyandHealth.

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