This month, new regulations regarding personal protective equipment (PPE) go into effect. The rule, promulgated by the Occupational Safety & Health Administration (OSHA) in late 2007, clarifies what PPE employers are required to provide at no cost to their employees. Previous OSHA standards had established that employers must provide PPE, but the issue of who must pay for it had been unclear. The new rule obligates employers to pay in most cases, but does not require employers to provide PPE where none was required before. Employers must comply by May 15, 2008.
The list of all equipment covered in the rule is rather long and pertains to industries outside of construction, but the items relevant to remodeling companies are listed.
Remodelers shouldn't expect this to have much direct effect on their expenses; OSHA estimates that employers previously paid for 95% of the PPE covered in the rule, as a business practice. Indeed, the added burden on employers as a result of the regulations is minimal. There's no formal recordkeeping requirement, but the text of the rule states that the standard practices of keeping receipts for tax purposes should be enough to resolve any dispute. Given that a complaint by an employee would likely turn into a “he said, she said” situation, however, it might be a good idea to take extra steps. D.S. Berenson, managing partner of construction law firm Johanson Berenson LLP, suggests that companies “on the radar screen for OSHA issues” should talk with an expert about a compliance program. “You'll get your head handed to you one day if you don't,” Berenson says.
The rule gives significant wiggle room on how PPE gets into the hands of employees. Keeping a stock of PPE handy seems to be the method that minimizes administrative issues, and purchasing PPE for employees on an as-needed basis seems relatively painless, as well. Some companies may prefer to provide workers with allowances for purchasing their own PPE, or to reimburse employees. That's fine with OSHA, as long as employers are diligent about doing so in a timely fashion.
FOOTING THE BILL
The rule covers many industries. Here's a list of PPE most relevant to remodeling. For a full list, visit us on the Web.
YOU MUST PAY FOR ...
- Foot protection
- Rubber boots with steel toes
- Non-prescription eye protection
- Face shields
- Hearing protection
- Non-specialty gloves
- Rubber insulating gloves
YOU DO NOT HAVE TO PAY FOR ...
- Non-specialty safety footwear
- Non-specialty prescription safety eyewear
- Sturdy work shoes
- Back belts
- Dust masks and respirators when use is voluntary
Of course, if it was as simple as handing out hardhats and gloves whenever your employees needed them, OSHA wouldn't have needed eight years and 122 pages to issue a final rule.
Below are the requirements for some of the less-straightforward situations involving PPE.
- Replacement PPE. If an employer is required to pay for a PPE item, it is also responsible for paying for the replacement of that PPE, unless replacement is necessary because the employee lost or intentionally damaged the equipment. In that case, employers may choose to hold the employee responsible for the cost; however, they must provide it (as before this rule), and still are responsible for ensuring that no one is working on the jobsite without proper safety equipment. Note that PPE can be considered “lost” if an employee arrives at work without PPE they've been issued.
- Employee-provided PPE. Many employees may prefer, for a variety of reasons, to provide their own PPE. The rule allows this, though employers are still responsible for verifying the equipment's compliance with OSHA regulations and that it's in acceptable working condition. Workers are not entitled to reimbursement for PPE they provide. However, if at any time the employee wishes to cease using his or her personal PPE, the employer must make PPE available to them at no cost.
- Alternative and upgraded PPE. If a worker wishes to use PPE that is a different brand or style than what their employer offers, they may do so — provided, again, that it meets acceptable standards and is in satisfactory condition. However, the employer is not responsible for paying for it.
In the case of “upgraded PPE” and PPE that is more expensive, the employee is similarly responsible for the entirety of the cost. The employer has no obligation, for example, to reimburse the employee for the amount that company-issued PPE would cost.
- PPE for temporary labor. Determining who is responsible for paying for PPE for those workers not on the regular payroll is a bit tricky. The rule says that the employer who controls the manner in which the work is done is responsible for the PPE of the person doing it.
So if you hire a few guys from the labor pool or a staffing service, you're probably on the hook for providing their protective equipment; if they're subcontractors, you're not.
NO WAY AROUND IT If you're the type who is constantly searching for ways to buck the system, don't even think about circumventing this rule. OSHA has thought of pretty much everything. Some of the potential work-arounds specifically thwarted in the rule:
- Classifying workers as subcontractors, rather than employees. Workers must be considered employees per the guidelines set forth in the Occupational Health and Safety Act of 1970.
- Requiring employees to provide PPE as condition of employment. OSHA explicitly prohibits this in the final rule: “Taking PPE-ownership into consideration during hiring or selection circumvents the intent of the PPE standard and constitutes a violation.”
- Fining employees for the replacement of their PPE. The rule says, “Disciplinary systems that circumvent the PPE payment requirements and shift payment to employees when the PPE is not lost or intentionally damaged will be considered a violation of the standard.” Pretty simple.
See a comprehensive list of PPE.