The Occupational Safety and Health Administration (OSHA) has received thousands of questions and requests for clarification about their occupational health and safety standards from employers, individuals, unions, and other organizations throughout the years. When OSHA responds to these questions, they typically do so through a Letter of Interpretation. These letters are posted on the OSHA website, and address many topics; they are a great resource for employers because they may answer your question(s) about a particular standard or topic. However, be aware that the letters only address the specific question asked, and may not apply to your exact situation. Also, the letters are strictly interpretations issued by OSHA, and do not alter the meaning of the actual OSHA standards. The intent of this newsletter series will be to provide insight into some of the more unique interpretations provided by OSHA.
This article (Part 5) will address payment for personal protective equipment (PPE) in 29 CFR Parts 1910, 1915, 1917, 1918, and 1926. Some PPE provisions did not specify that the employer is to provide such PPE at no cost to the employee. In this final rule, OSHA is requiring employers to pay for the PPE provided, with exceptions for specific items which will be discussed within this article.
Question #1: Are employers allowed to charge employees a deposit for protective equipment when the PPE is issued to the employee? If so, is the employer required to have authorization from the employee to make a payroll deduction for such a deposit?
OSHA responded that if the employer retains ownership of the PPE, then the employer may require the employee to return the PPE upon termination of employment. If the employee does not return the employer's equipment, nothing in the final rule prevents the employer from requiring the employee to pay for it or take reasonable steps to retrieve the PPE, in a manner that does not conflict with federal, state or local laws concerning such actions. In these situations, OSHA notes that the employer is not allowed to charge the employee for wear and tear to the equipment that is related to the work performed or workplace conditions.
OSHA accepted that a written agreement, for example, between the employer and employee on the matter may be an effective method of ensuring that the employer's expectations of the employee are clear and unambiguous. OSHA accepted the use of a deposit system that provides an incentive for employees to return the equipment. However, OSHA cautioned that the deposit system must not be administered in a fashion that circumvents the rule and results in an employee involuntarily paying for his or her PPE.
Why is this important? This is a sensitive issue to both employers and employees.
Employers often times have substantial investments in their PPE systems and if employees are not properly maintaining or caring for these systems the effective life span can be significantly reduced. For example a 50 foot retractable lanyard can cost well over $500 per unit. These retractable lanyards may be used in conditions that are not conducive to the longevity of the equipment. This is specifically addressed in the interpretation in that if the damage or deterioration of the PPE is caused by workplace conditions or due to the work being performed than this would fall under the employer’s responsibility. However, what if the same retractable is used for a day of work and was then either left out on-site or in the back of a truck exposed to corrosive conditions such as rain, snow, heat, etc. Does the employer have a path of recourse to then charge the employee for this damage? The answer is possibly... If the employer has used what OSHA accepts as a “written agreement” and within that agreement there is verbiage that states that employees shall not leave certain PPE equipment exposed to corrosive environments and there is substantial evidence by the employer that this had happened. The employer may have recourse to charge for that PPE/Lanyard.
Often times employees damage PPE through the course of their assigned work. This often manifests itself in scratched safety glasses, broken hard hat clips, and torn gloves. From an employee and from OSHA’s standpoint the replacement of these items must be covered by the employer as it is reasonable to assume this damage was the result of workplace conditions or assigned work. Employees may be on the hook from some of these items if there is a written agreement in place that includes a reasonable replacement schedule for items such as safety glasses and gloves. If the employee is a habitual offender of damaging PPE or often loses his or hers assigned PPE, than they may be on the hook for these replacement costs, as long as there is a written agreement is in place that would be considered “reasonable”.
Employers must be consistent with their PPE policies and any written agreements they may put in place for PPE payments. If employees start to view the program as a penalty program it may lead to poor safety culture on-site and unwillingness to comply with other safety procedures and protocol. If a PPE written policy for reimbursement is implemented it should be closely monitored for effectiveness and monitored to ensure that the program is in fact working.