Who Must Pay for PPE? We'll Know Soon

(But don't expect an answer that's as simple as the question.)

I wince when OSHA's administrators say trimming the fat from the agency's twice-yearly regulatory agendas is a major achievement. What's left when the cutting is done is beyond lean; it's emaciated. Yes, the agendas should be realistic, but recent ones are painful reminders that little is being accomplished on the regulatory front and little is being attempted.

The latest agenda, issued in December, surprised me by saying OSHA intends to complete in July 2007 its revision of electrical standards for general industry and construction, the ones that apply to workers who build and maintain electrical power and distribution systems. The proposed rule is a significant, needed change, and it seemed to have stalled last year.

The other noteworthy items are a February 2007 notice of proposed rulemaking for a confined spaces in construction rule and final action in May 2007 on the employer pays for PPE rule. What's odd about this pair is that, while confined spaces are perpetually confusing and the payment rule is as simple and straightforward as federal rulemaking can get ("Should employers pay for the PPE they require their workers to wear?"), the two rulemakings probably won't play out that way this spring. My prediction: Construction confined spaces will be the easier one by far.

I believe employers should pay for PPE and that OSHA's existing regulations answered the question, but the Occupational Safety and Health Review Commission decided otherwise. I also believe the payment question can't be settled--not by this OSHA and not at this time. Opening the door for comments on "tools of the trade" is one reason it can't be. The other reason is that OSHA wants to tell employers they're on the hook for PPE but can't successfully defend that position before OSHRC and the federal courts.

Stay tuned in May. If the agendas are as realistic as OSHA's chiefs claim, we'll see whether this riddle can be solved.

This column appeared in the February 2007 issue of Occupational Health & Safety.

This article originally appeared in the February 2007 issue of Occupational Health & Safety.

About the Author

Jerry Laws is Editor of Occupational Health & Safety magazine, which is owned by 1105 Media Inc.

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