Michael Heenan
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My colleague, John Flood, is the resident expert in our office in workplace personal protective equipment requirements. Of
course, he is an expert in many other labor and employment issues as well. In any event, he provided me with the information
for this article.
In what may be a new trend in regulations, the Occupational Safety and Health Administration (OSHA) has promulgated a final
rule that makes it mandatory that employers provide – at no cost to employees – all personal protective equipment needed to
be in compliance with OSHA regulations. This includes safety-toe boots, protective gloves, external metatarsal guards, safety
glasses and safety harnesses, as well as a whole panoply of other safety gear that is required for compliance with various
OSHA regulations.Employers must pay for replacement equipment as well.
Legal tip
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OSHA estimates that the total cost of providing safety equipment under this rule, which becomes effective on May 15, 2008,
will be $85 million.
Here are the exceptions to the rule:
- Non-specialty safety shoes that employees are allowed to wear outside work.
- Non-specialty prescription eyewear that employees may use outside work.
- If an employer provides external metatarsal guards, but an employee prefers to use boots with built-in metatarsal protection,
that would be the employee's expense.
- Everyday work clothes such as longsleeve shirts, long pants, street shoes and other clothing items are not the employer's
responsibility even if they are worn or damaged at work.
- Protective ointments such as suntan lotion, bug spray, skin moisturizers and eye drops are not the employer's responsibility.
- If an employee loses or intentionally damages personal protective equipment provided by the employer, the employer does not
have to pay for its replacement.
Maximizing safety
Regardless of who pays, it will always be the employer's responsibility to make sure the employee is properly and safely equipped
to do the job assigned, and this means the employee must have any and all equipment required by law or necessitated by circumstances.
The employer's obligation to ensure employee use of safety clothing and devices is unlimited, but as noted, there are limits
on the employer's obligation to pay. To maximize safety, the employer may establish appropriate rules for work clothes, which
could occasion some expense for the employee. For example, the employer may mandate dress codes for safety (such as long pants
and long-sleeve shirts) even though there is no requirement for the employer to pay for such clothing items.
To ensure proper compliance, the employer may discipline employees for failing to wear employer-required clothes, whether
these are legally mandated or strictly an employer requirement. Also, as noted, an employer is not obliged to replace equipment
an employee loses or abuses, but the employee cannot work without the proper equipment. In such cases, the employer could
take disciplinary action, including perhaps suspension pending the employee's acquisition of necessary replacement equipment.
If the employer does not have to pay, and the employee refuses to pay, then the employee has lost the ability to perform the
job through his own action (or in this case inaction).
