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, www.osha.gov (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:
- Steel-toed shoes and boots;
- SCBA prescription eye protection;
- 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.
(b) The employer is not required to pay for...non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site.
OSHA in its comments on the rule noted that it asked for industry comments in its draft rule on whether employers should pay for respirator inserts, and they receive no substantive objections to the rule. One industry trade group noted that full-facepiece respirator inserts "[s]hould be supplied and paid for by the employer * * * A full-facepiece respirator insert costs roughly $50-$100, depending on the prescription (single, bifocal, etc.), the material (polycarbonate, etc.), and the fitting-delivery system used (Ex. 12: 230)."
OSHA also noted that the ASSE (American Society of Safety Engineers) stated that: "[m]ost prescription safety eyewear will fit into a full-face respirator with the appropriate mounts. We are aware of some circumstances when an additional specific frame had to be ordered to work with such a facemask. Most of our members commented that from their experience, most employers would pay for the additional product in such a situation" (Ex. 12: 110)." (OSHA Rule comments, Other Items Raised in the Rule Making Process).
Firefighter Gloves: It appears that covered fire and EMS departments will be required to pay for firefighter gloves to be worn with turnout coats at structure fires and other emergency scenes. Under the new rule:
(d) The employer is not required to pay for:
- Everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal work boots; or
- Ordinary clothing, skin creams, or other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas, rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.
(Final Rule; printed at very end of PPE web site.)
Firefighter Wants to Supply His Own PPE: This appears to not be a problem, but the fire department does not have to reimburse the employee.
(f) Where an employee provides adequate protective equipment he or she owns, the employer may allow the employee to use it and is not required to reimburse the employee for that equipment. The employer shall not require an employee to provide or pay for his or her own PPE, unless the PPE is excepted by paragraphs (b) through (e).
OSHA, in its comments on the final rule, advises: "The final rule also clearly addresses the use of employee-owned PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f); 1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may wish to use PPE they own, and if their employer allows them to do so, the employer will not need to reimburse the employees for the PPE. However, the regulatory text also makes clear that employers cannot require employees to provide their own PPE or to pay for their own PPE. The employee's use of PPE they own must be completely voluntary." (OSHA Rule comments, Description of Final Rule.)
Replacement PPE: OSHA requires the employer to pay for replacement PPE unless an employee has intentionally damaged the item. Fire and EMS departments should be particularly cautious about requiring personnel to pay for lost items. Even though the rule clearly states that employers may require payment, OSHA in its comments advises to not require the employee to pay for the "occasional loss" of PPE.
(e) The employer must pay for replacement PPE, except when the employee has lost or intentionally damaged the PPE.
OSHA comments on the rules seem to draw a distinction between an "occasional loss" and an employee who "regularly loses" his or her equipment. "Replacing PPE that is no longer functional is crucial to employee safety and health. OSHA finds that timely replacement of PPE is more likely to occur when the employer is responsible for bearing the cost. OSHA is requiring employers to not only pay for the initial issuance of PPE, but also its replacement, except when the employee has lost or intentionally damaged the PPE. In the proposed rule, OSHA did not include language in the regulatory text setting forth an employer's obligation to pay for replacement PPE. However, in the preamble to the proposal OSHA stated: OSHA intends to require employers to pay for the initial issue of PPE and for replacement PPE that must be replaced due to normal wear and tear or occasional loss. Only in the rare case involving an employee who regularly fails to bring employer-supplied PPE to the job-site, or who regularly loses the equipment, would the employer be permitted to require the employee to pay for replacement PPE (64 FR 15414)." (OSHA Rule comments, Replacement PPE.)
Appealing an OSHA citation: Employers who are cited by federal OSHA, or state-OSHA inspectors, can challenge the citation in administrative appeals and then in court. For example, in 1994 OSHA advised its field staff that employers do not need to pay for steel-toed shoes since they are very personal in nature, and can be easily used off the job.
An OSHA inspector later issued a citation against Union Tank Car Company for failing to pay for welding gloves and "metatarsal foot protection" for their welders. Metatarsal protection is typically required by the OSHA standards when there is a potential for injury to that part of the foot from impact or compression hazards that could occur, for example, from handling heavy pipes, or similar activities where loads could drop on or roll over an employee's feet. The company appealed to the independent OSHA Review Commission, which in 1997 vacated the citation. The Review Commission in Secretary of Labor v. Union Tank Car Co., 18 O.S.H. Cas. (BNA) 1067 (Rev. Comm. 1997), vacated the citation, finding that the Secretary had "failed to adequately explain the policy outlined in the 1994 memorandum in light of several earlier letters of interpretation from OSHA that it read as inconsistent with that policy." (OSHA Rule comments, Background.)
Conclusion: This new rule will undoubtedly lead to questions about its applicability to fire & EMS departments. If in doubt, call your state OSHA enforcement agency or the local Federal OSHA office and discuss their interpretation, and then consult with an attorney experienced with OSHA issues. Clearly communicate your department's position to all personnel, to hopefully avoid unnecessary complaints to OSHA.
LARRY BENNETT, a Firehouse.com Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at [email protected].
