November 24, 2007

What Contractors Need To Know About The PPE-Payment Requirements

After a series of delays dating all the way back to 1999, the Occupational Safety and Health Administration has published a final rule that requires employers to pay for almost all personal protective equipment (PPE) that is required by OSHA standards. However, employees can still be required to pay for certain items.

The rule officially goes into effect as of February 13, 2008, but OSHA will not begin to enforce it until May 15, 2008. It is likely that most NECA-member contractors are already in compliance with most aspects of it. Nevertheless, NECA chapters and their Labor Relations and Negotiating Committees are advised to use the enforcement delay to examine their collectively bargained labor agreements and negotiate changes in the possible, but not as likely, event that current language conflicts with the PPE-payment requirements. (More about that below.)

The final rule does not create new requirements regarding what PPE employers must provide, but it does require employers to pay for most types of PPE mandated by OSHA’s general industry, construction, and maritime standards. Thus, employers will have to pay for such items as lifelines, lanyards, face shields and protective clothing that is not suitable for everyday, off-the-job use. But, this rule does not require employers to pay for such things as uniforms, items worn to keep clean, or other items that are not PPE.

Specifically, the new rule states that employers are responsible for most types of safety gear specified in the NFPA 70E Standard for Electrical Safety in the Workplace, in addition to basic worksite personal protective equipment. (NECA’s popular PPE Selector, which is based on NFPA 70E, is a great tool for compliance assistance! It’s available in the “Safety” section at www.necanet.org/store.)

Employers may still require workers to pay for their own footwear, including safety-toe footwear and logging boots; weather-related gear and everyday clothing that they are permitted to wear off the job; and prescription safety eyewear.

Employers may not require employees to provide their own PPE, but if workers voluntarily choose to use PPE they own, employers are not required to reimburse them for its cost. However, even where an employee provides his or her own PPE, the employer must ensure that the equipment is adequate to protect employees from workplace hazards.

The final rule also requires that the employer pay for replacement PPE used to comply with OSHA standards. However, when an employee has lost or intentionally damaged PPE, the employer is not required to pay for its replacement.

Many collective bargaining agreements contain language specifying that employers will provide certain PPE to employees at no cost while some specify certain PPE that employees will be responsible for providing (and paying for) themselves. The final rule could have an impact on these arrangements since OSHA has determined that workplaces with collective bargaining agreements should be treated no differently than workplaces without collective bargaining agreements in this regard.

OSHA notes that compliance with the rule does not conflict with employers’ obligations to bargain over mandatory subjects of bargaining under the National Labor Relations Act (NLRA). Nor does it foreclose bargaining about discretionary aspects of the standard such as the means by which the employer will provide the PPE to employees so that it results in no cost to the employees, payment arrangements for equipment that is not covered by the final rule, and so forth.

The agency further notes that the extended compliance deadline (until May 15) will allow some collective bargaining agreements to expire. “In these cases employers and unions can renegotiate the contract to reflect the new realities imposed by the rule. In other cases, the six-month compliance deadline allows employers, employees, and employee representatives to either conduct mid-term bargaining or otherwise come to an agreement concerning their methods for implementing the final rule.”

Looking on the bright side, the final PPE rule could help level the playing field since it will require non-union employers to pay costs that union employers have been paying all along under collectively bargained agreements. And, finally, contractors who provide required PPE to their workers can point to the OSHA rule to justify the costs to general contractors and owners.

The full text of the final rule was published in The Federal Register on November 15. For access to it, click here.