Larry's Legal Lessons: New OSHA Rule Requires Employers to Purchase PPE

This new rule will undoubtedly lead to questions about its applicability to fire & EMS departments.

Legal Lessons Learned: OSHA's new rule, effective Feb. 13, 2008, may require some fire & EMS departments to purchase firefighter gloves, SCBA mask eyewear prescription inserts and other items of PPE. It will directly impact fire & EMS departments located in the 24 states and two territories that have adopted state-OSHA plans (these 24 states, plus Puerto Rico and the Virgin Islands, apply OSHA standards to state and local government employers, including fire and EMS departments). Fire and EMS departments that are private companies located in federal-OSHA states will also be directly affected nationwide, and must implement the new rule by May 15, 2008.

The new rule provides in part:

  • Sec. 1918.106 Payment for protective equipment.
    (a) Except as provided by paragraphs (b) through (f) of this section, the protective equipment, including personal protective equipment (PPE), used to comply with this part, shall be provided by the employer at no cost to employees.

Where can I read the entire rule? OSHA's final rule and comments are posted on OSHA's website, (click on "personal protective equipment" for the new rule). You can see a list of the 24 states with state-OSHA plans (click on "State Plans").

Why has OSHA adopted this new rule? OSHA wants to enhance the use of PPE, by establishing a uniform rule requiring employers in all industries, nationwide, to pay for PPE, except in very limited circumstances. OSHA has previously issued numerous safety standards for specific industries, mandating that employers in those industries require employees use PPE on the job site. For example, in the construction industry there are PPE rules requiring the wearing of hard hats, and the use of fall protection equipment. OSHA explained, "Some OSHA standards specifically require the employer to pay for PPE. However, most are silent with regard to whether the employer is obligated to pay." (OSHA Rule comments, Background.)

What are implications for the fire service? Time will tell, but clearly fire and EMS departments in the 24 states that have state-OSHA plans, and private emergency companies in the other 26 states, are directly impacted. These agencies must pay for the PPE for responders to do their job safely, unless this PPE is specifically exempted by the new rule. We will review three items of PPE:

  1. Steel-toed shoes and boots;
  2. SCBA prescription eye protection;
  3. Firefighter gloves.

Steel-Toed Shoes And Boots: Under the new rule, covered fire and EMS departments will not be required to pay for "non-specialty" safety-toe protective footwear that can be used off-duty.

(b) The employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site.

The author of this article wears steel-toed leather boots whenever I am on duty. They cost me about $200, with a side zipper for easy taking on and off. I will not be able to submit a bill to my department under this new rule, since I can wear them off-duty (such as walking the dog in the mud or shoveling snow).

OSHA, in its comments on the new rule, explained what they meant by "non-specialty" safety-toe protection. "[I]t is used to indicate that the footwear...being exempted is not of a type designed for special use on the job (e.g., rubber steel-toe shoes). This is consistent with the condition in the proposed rule that the equipment not be 'designed for special use on the job.' The final rule also incorporates the condition from the proposed rule that requires the employer to pay for PPE that is not permitted to be used off the job." (OSHA rule comments, Exceptions.)

SCBA Mask Eyewear Prescription Inserts: Under the Final Rule, it appears that covered fire and EMS departments will have to pay for respiratory inserts in SCBA masks. The cost of the prescription glasses or contacts remains with the firefighter.

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