Last November, the Occupational Safety and Health Administration (OSHA), part of the U.S. Department of Labor, issued a final rule that means it may cost more now to keep employees safe on the job. Under the new rule, companies will now have to pay for most personal protective equipment for their workers. At that time, OSHA gave employers six months to comply. In order to be within the law, companies must now be paying for most personal protective equipment, with a few exceptions for items such as ordinary safety-toed footwear, ordinary prescription safety eyewear, logging boots, and ordinary clothing and weather-related gear. This generally includes paying for replacement items that are needed due to repeated use.

“Employees exposed to safety and health hazards may need to wear personal protective equipment to be protected from injury, illness, and death caused by exposure to those hazards,” said Assistant Secretary of Labor for OSHA Edwin G. Foulke Jr., in a statement. “This final rule clarifies who is responsible for paying for [personal protective equipment], which OSHA anticipates will lead to greater compliance and potential avoidance of thousands of workplace injuries each year.”

According to OSHA, personal protective equipment includes face shields, safety glasses, hard hats, safety shoes, goggles, coveralls, gloves, vests, earplugs, and respirators. The equipment is intended to protect employees from serious workplace injuries or illnesses that could result from contact with chemical, radiological, physical, electrical, mechanical, or other workplace hazards. Several of these items, such as safety glasses, hard hats, and earplugs, are routine in most industrial settings today.

The new rule does not change any requirements regarding what safety gear is needed or when it must be used; rather, it is meant to clarify that employers must pay for the necessary safety equipment, except for those few ordinary items, according to OSHA. Under current federal regulations, employers still must assess their workplaces in order to scout out hazards that would require the use of personal protective equipment. If workplace conditions require that employees need to wear protective gear, employers must select the gear, require employees to use it, communicate what gear must be worn, and provide gear that fits workers.

Employers still must train their employees on various aspects of protective gear, including: using it properly; knowing when and what kind is necessary; understanding the limits of their protective gear; knowing how to don, adjust, wear, and doff the gear; and maintaining it properly.

OSHA points to three reasons why the new rule will improve safety:

• When employees pay for their own protective equipment, they are apt to do it cheaply or not at all. OSHA also believes that employees will be more inclined to use protective gear that doesn’t cost them anything;

• Since they have to pay for it, employers clearly have responsibility for personal protective gear. They are more likely to ensure the right gear is used for the job, that all the gear is in good condition, and employees are protected; and

• When employers pay for safety gear, employees will participate whole-heartedly in workplace safety and health programs, according to OSHA.

OTHER DEPARTMENT OF LABOR REQUIREMENTS

The new changes are not the only requirements that the Department of Labor imposes on employers when it comes to paying for gear and uniforms for employees. While employers are making any necessary adjustments regarding safety gear, it is a good time to revisit all policies regarding the types of clothing used on the job, and who pays for what. For example, the Fair Labor Standards Act (FLSA) also lays out rules about employer and employee obligations for purchasing uniforms.

Uniforms and other items that exist primarily for the benefit or convenience of employers cannot be included as wages. So when it comes to meeting obligations towards paying the minimum wage or overtime wages, employers are not allowed to take credit for these expenses.

The FLSA does not require employees to wear uniforms; so if another law, the type of business, or the employer decides uniforms are necessary, cost and maintenance are a business expense for the company. Employers can require workers to pay for their uniforms, but if they choose to do so, employers cannot reduce an employee’s salary below the minimum wage of $5.85 per hour (which jumps to $6.55 per hour on July 24). Numerous state wage and hour laws mandate a higher minimum wage.

To offer clarity on the rule, the Wage and Hour Division of the Department of Labor has created several examples. For example, if an employee makes the federal minimum wage of $5.85 per hour, employers cannot deduct any money to pay for uniforms, and they cannot require employees to buy them on their own. However, if an employee makes $6.25 an hour and works 30 hours in a workweek, the employer could legally deduct $12 - the 40 cents per hour that the employee makes over minimum wage, multiplied by the 30 hours that the employee works.

The FLSA allows employers to prorate such deductions for the cost of the uniform over a period of paydays, as long as those deductions don’t drop the salary below the minimum wage or affect overtime pay. Employers can require employees to buy their uniforms as a condition of employment, as long as employees are reimbursed on the next regular payday to the extent that the uniform costs cut into minimum wage or overtime compensation.

The same rules apply when it comes to items that are for the “convenience” of the employer, such as work tools or damages to the employers’ property caused by employees. If reducing an employee’s wages would drop compensation below minimum wage or impact overtime pay, deductions are not allowed. This holds true even when an employee’s negligence costs an employer. Employers can’t skirt the minimum wage and overtime rules by forcing employees to pay cash for uniforms and other items.

The Department of Labor has multiple rules regarding personal protective gear and uniforms for employees, and it strictly regulates how those items can be paid for. Failure to comply can land employers in a great deal of trouble. For more information, employers can consult the OSHA Website to find out more information about the rule on personal protective gear at www.osha.gov/SLTC/personalprotectiveequipment/index.html, or the Department of Labor Website for more information about the Fair Labor Standards Act at www.dol.gov/compliance/laws/comp-flsa.htm. Employers who are unclear on the standards may want to consider speaking with an attorney who has knowledge of all the relevant federal, state, and local rules.

Publication date: 07/21/2008