On November 14, 2007, the Occupational Safety and Health Administration (“OSHA” or the “Agency”) issued the final version of its rule on employer payment for personal protective equipment (“PPE”), initially proposed in 1999 . The final rule essentially mandates that, with limited exceptions, employers bear the financial responsibility for all PPE used to comply with OSHA’s various workplace safety and health standards. Although numerous OSHA standards require that employers provide PPE, several of these standards do not explicitly require that the employer bear the financial expense associated with the equipment. The final rule creates this explicit requirement. Nonetheless, OSHA maintains that the final rule merely clarifies and does not alter existing obligations.

On March 6, 2007, Rep. Lucille Roybal-Allard (D-CA) and Rep. George Miller (D-CA) introduced the Protective Equipment for America’s Workers Act , which asserted that

“OSHA first estimated that the final rule would be issued in 2000, but the agency missed that deadline and has missed the subsequent deadlines announced in its semi-annual regulatory agenda in 2004, 2005, and 2006,” and would have ordered the Secretary of Labor to issue the final rule. The bill is still in committee.

The Kansas City Star reports that Rep. Miller “ called the nine-year lag ‘unnecessary and unfortunate.’ But he and OSHA spokesmen said the result should be to protect more U.S. workers from injury.”

While the Protective Equipment for America’s Workers Act is now unlikely to gain momentum, it is not entirely moot. The bill called for a rule “which shall provide no less protection to employees and shall have no further exceptions from the employer payment requirement than the proposed rule published in the Federal Register on March 31, 1999.” The final rule announced by OSHA did contain more exceptions. Specifically:

• the ordinary and everyday clothing and built-in metatarsal protection exceptions were not present in the 1999 proposed rule;
• there was no exception exempting employers from paying for PPE that employees own and chose to use; and
• the 1999 proposal did not explicitly mandate that employers pay for replacement PPE, or the associated exceptions.

For more information about the final OSHA rule, which is scheduled to become effective February 13, 2008, see: Employers Are Financially Responsible for Employee Personal Protective Equipment Under New OSHA Rule.

• WATCH LIST:   Protective Equipment for America’s Workers Act