A recent directive from the Occupational Safety & Health Administration (“OSHA”) to its inspectors has provided employers with a bit more clarity on its responsibilities in providing Personal Protective Equipment – also known as PPE – to employees.  That directive has also provided employers with a clue that hard hats, face shields and foot protection are all at the forefront of OSHA’s thinking.  Don’t want an awkward moment with an OSHA inspector?  Read on.

OSHA regulations tell us that employers have the responsibility of identifying hazards to employees and ensuring that they utilize the proper PPE.  Basic hazard assessments on each job duty identify when employees need to wear PPE.  Sometimes, however, it can be difficult to determine, for example, if employees are made safe by steel-toe boots or if they need full metatarsal guards.  Safety professionals should be used to review job tasks and advise on proper PPE selection, and obtaining and keeping the reports those professionals prepare can be invaluable when an employer is faced with questions from an inspector as to why workers are wearing a particular piece of equipment.

Once an employer has identified a hazard, it can usually find the right equipment to minimize it.  According to OSHA, proper PPE is appropriately designed to offer the necessary protection and is of sufficient quality to ensure that it will function as designed.  Again, trained safety professionals can offer guidance on equipment that is known to perform well.

By the way, employers should not be shy about contacting the manufacturers of PPE to obtain additional guidance in this area.  There are few people who know more about this equipment than the people who actually make it.  Manufacturers can often provide information about specific materials and features of PPE that could make it more effective or functional, and a manufacturer is always glad to tout its product’s compliance with applicable OSHA and ANSI standards.

Next, employers need to make sure that the PPE its employees are using is maintained in a safe and sanitary manner.  OSHA requires that regular inspections be undertaken to make sure that the PPE is in a condition that will allow it to perform its safety function if called upon.  Such inspections need to be made a normal duty that is performed on a regular basis.

Just as important, employees using the PPE need to be trained to inspect their own equipment at the time of use so that they can bring any problems to the attention of a supervisor.  A hardhat with a cracked lining or rubber boots with signs of rot need to be replaced.  Just like having an employee document a pre-shift inspection of heavy equipment is important, having an employee document their PPE inspections can’t hurt either.

Also, make sure your employees have a clean, safe, and secure location to store their PPE when it’s not in use.  Designating a cabinet or locker for this equipment ensures that it can be quickly and efficiently inspected and is always ready when it is needed.

Once most employers know about these principles, there’s one more question we commonly get from them about PPE:  who pays for all of this stuff?

Since 2008, OSHA has required employers to pay for particular articles of PPE.  In general, employers must pay for PPE that they require employees to use to in order comply with OSHA standards.  They also typically have to pay for replacement PPE, except when the employee loses the equipment or intentionally damaged it.  There are some important exceptions to these requirements, though.

For one, employers do not need to pay for steel-toe boots and prescription safety glasses that the employee is allowed to wear home.  Employers also need not pay for different or upgraded PPE requested by the employee.  In these situations, remember that the different or upgraded equipment still needs to meet appropriate standards and that the employer has the right to allow or not allow such items to be used during work activities.

As OSHA continues to ramp up its enforcement actions in the coming year, keeping these principles in mind are paramount for employers looking to both stay in OSHA’s good graces and keep their employees free from unnecessary danger.

James "Mac" Heslep defends employers against claims of work-related injury and illness. His practice began with a focus on the defense of state workers’ compensation claims. Since 2004, he has defended more than 2,000 protests before the West Virginia Workers’ Compensation Office of Judges.
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