“Though OSHA’s new Payment for PPE standard will have little impact on most payment practices in the union section of the construction industry,” says Noel C. Borck, Management Co-Chairman of the LHSFNA, “its promulgation may provoke criticism and tend to result in uncertainty in some areas of our industry. To minimize confusion, we asked our OSH Division staff to summarize the key construction-relevant provisions.”
Prescriptive eyewear. If “special-use prescription lenses must be used or mounted inside the respirator facepiece, employers must pay for the lenses;” otherwise, prescription eyewear is the responsibility of employees.
Personal components of PPE. “If the component is needed for the PPE to adequately protect the employee from the workplace hazard the PPE is designed to address, the employer must pay for it” (see exceptions, below); if the PPE does its designed job without the addition of personal components, then employees must pay if they want to add the components.
Residential “piece workers.” “[I]f an employer-employee relationship is established, then the employer must provide PPE at no cost.” This includes short-term, temporary, seasonal, hiring hall, labor pool and transient employees, including those doing piece work.
Employee turnover. Employees are employees. “Consequently, the Agency does not consider employee turnover as a reasonable basis for excluding the construction industry from the PPE payment standard.”
Self-Employed Independent Contractors. A truly self-employed, independent contractor is not an employee and, therefore, is not protected by the OSH Act. However, such a label is immaterial if the individual is, in fact, even temporarily under the day-to-day supervision of the employer with the details and timing of his work directed by the employer. “Depending on the nature and degree of control asserted over the means and methods of how work is to be performed, the hiring employer may be responsible…for providing PPE to that individual at no cost.”
Brand names or styles. Employers are not required to purchase whatever their employees request but “rather are responsible for ensuring that adequate PPE is used to comply with OSHA standards” and that it is provided at no cost to employees.
Damage or theft of PPE. As with other kinds of company equipment, employers may recover the cost of PPE damaged or stolen by employees.
Normal wear and tear. When employer paid PPE wears out and is no longer protective, employers are required to pay for replacement PPE.
Tools of the trade. After review of all comments upon the re-opening of rulemaking for a possible “tools of the trade” exemption, “OSHA believes that this alternative is too vague and would create confusion among employers and employees.”
Exceptions. Employers are NOT required to pay for:
- non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear, provided the employer permits such items to be worn off the jobsite
- shoes or boots with built-in metatarsal protection, if the employer provides metatarsal guards yet allows employees, at their discretion, to purchase and use shoes or boots with built-in metatarsal protection
- everyday work clothing – including work boots or ordinary clothing, creams or other products – used solely for protection from weather (such as coats, gloves, rubber boots, hats, raingear, ordinary sunglasses and sunscreen)
- replacement PPE that an employee has lost or intentionally damaged
- adequate PPE owned or provided by an employee that the employer allows the employee to use on the jobsite
[By Steve Clark]