Should employers be required to pay for virtually all personal protective equipment ("PPE") mandated by OSHA? The agency has proposed a new rule, which, if adopted, would answer this question in the affirmative. Employer Payment for Personal Protective Equipment; Proposed Rule, 64 Fed. Reg. 15401 (1999) (to be codified at 29 C.F.R. pts. 1910, 1915, et al.) (proposed Mar. 31, 1999).

The OSHA proposal would "require that the employer pay for all PPE required by OSHA standards, except for safety-toe protective footwear and prescription safety eyewear that meet all three of the following conditions: (1) the employer permits such footwear or eyewear to be worn off the job-site; (2) the footwear or eyewear is not used at work in a manner that renders it unsafe for use off the job site; and (3) such footwear or eyewear is not designed for special use off the job. Employers are not required to pay for the logging boots specified in 29 CFR 1910.266(d)(1)(v)". 64 Fed. Reg. at 15403.

The proposal states that many OSHA standards already require employers to provide and pay for PPE, whereas the texts of some safety standards have been less clear. The proposal explains that OSHA issued a memorandum to its field staff on October 18, 1994 that intended to establish a policy that "for PPE standards the employer must both provide, and pay for, the required PPE, except in limited situations." However, the Occupational Safety and Health Review Commission declined to accept the policy set forth in the 1994 memorandum because several earlier letters of interpretation from OSHA were inconsistent with that policy. See Secretary of Labor v. Union Tank Car, Docket No. 96-0563, 1997 WL 658425 (O.S.H.R.C. Oct. 16, 1997).

According to the proposal, "OSHA believes that it is important that the employer both provide and pay for PPE and ensure that employees wear it when necessary". 64 Fed. Reg. at 15403. OSHA believes that the proposed rule will enhance worker safety with respect to work-related illnesses, injury and death, and that employers "have the financial resources to purchase PPE of necessary quality and to pay for replacements as necessary." Id. Referring to surveys, studies, and a panel of PPE experts, OSHA estimates that, the proposed rule will impose costs of no more than $61.9 million, "even making worst case assumptions."

A public hearing is scheduled for June 22, 1999 at 9:30 a.m. on this proposed rule. If we can be of any assistance in answering questions about this rule, or OSHA issues in general, please contact us by telephone or e-mail as set forth below.

The information provided herein is for general guidance on matters of interest only. While every effort has been made to ensure the information provided herein is accurate and timely, no decision should be made or action taken on the basis of information without first consulting an Epstein Becker & Green, P.C. professional.