November 29, 2007

More Specifics On PPE-Payment Rule - But Still More Specifics Needed

On November 17, 2007, the Department of Labor’s Occupational Health and Safety Administration (OSHA) published the Employer Payment for Personal Protective Equipment; Final Rule (29 CFR Parts 1910, 1915, 1917, 1918, and 1926), to be implemented in full by May 2008. The rule has not changed what Personal Protective Equipment (PPE) is required, but rather, what PPE the employer is responsible for providing at no cost to the employee. Amidst some clarity, the document provides confusion with regard to exemptions, definitions, and collective bargaining agreements.

The 90-page, fine-print document addresses a number of public comments and concerns and clarifies exceptions to the rule. Comments cited include those of the National Electrical Contractors Association (NECA), who listed a number of items that potentially could be considered PPE, such as climbing hooks and flame-resistant (FR) clothing, “vary in design and material, have always been very much subject to personal preference, and are not universally transferable from employee to employee,” and, therefore, should not be subject to the provisions of the Rule. OSHA responded to this and other like-minded comments saying that this equipment is subject to employer payment when required by OSHA standards.

Several items are made clear with OSHA’s language. For example, specific items exempted are listed, and include:

  • Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/boots)
  • Non-specialty prescription safety eyewear
  • Sunglasses/sunscreen
  • Sturdy work shoes
  • Linemen’s boots
  • Long sleeve shirts

Additionally, specific items covered (if used to comply with an OSHA standard) are listed, and include:

  • Metatarsal foot protection
  • Rubber boots with steel toes
  • Non-prescription eye protection
  • Goggles
  • Face shields
  • Hard hat
  • Hearing protection
  • Rubber sleeves
  • Fall protection
  • Climbing ensembles used by linemen (e.g., belts and climbing hooks)


NECA continues to work toward understanding fully what the Final Rule means for both employers and employees. Clarification is still needed in a number of areas, including fire-resistant clothing, equipment maintenance (e.g., testing tools/equipment), collective bargaining agreements, and utility work. Both collective bargaining agreements and utility workers are affected by the ruling, but not in precise language.

A number of utility organizations commented on the rulemaking. The Edison Electric Institute (EEI), for example, requested specifically that apparel and clothing listed in the Transmission and Distribution standard (specifically, 1910.269 (1)(6)) not be regarded as PPE in the rulemaking, arguing that a statement to that effect would eliminate confusion and conflicting standards. While there is further attempt to clarify this confusion in the preamble, OSHA also states that a separate rulemaking revising that standard is underway. In this specific case, if FR clothing is found to be required in 1910.269 (in the T&D rulemaking), it would become subject to the provisions of the PPE rulemaking.

The effect on existing union contracts is addressed, and future contracts alluded to in the preamble of this rulemaking. OSHA maintains that a six-month compliance deadline allows for the expiration of existing contracts and negotiations for existing or new contracts to include provisions set forth in the Final Rule. Because PPE is usually a mandatory subject in negotiations, several public comments were received by OSHA about possible violation of policies of federal labor legislation with regard to workplace conditions. OSHA stated that the final rule did not inappropriately interfere, and that “the duty to bargain with unions over safety and health matters does not excuse employers from complying with OSHA standards.”

Publication of this final rule was a long and drawn-out process. It is unfortunate that, after all that time, the language is still not precise, particularly with only six months to fully understand and comply with the Final Rule.

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