November 13, 2014

Scott L. Day, President
SafeDay Inc.
727 Walkerstown-Gutherie Rd.
Winston-Salem, North Carolina 27101

Dear Mr. Day:

Thank you for your April 17, 2014, letter to the Occupational Safety and Health Administration (OSHA). Since it involves construction issues; it has been forwarded to the Directorate of Construction for response. We apologize for the delay in our reply. You have specific questions regarding several methods for having employees pay for personal protective equipment. This letter constitutes OSHA's interpretation of only the requirements discussed and may not be applicable to any question not delineated in your original correspondence.

Background: The Occupational Safety and Health Administration published the final rule for "Employer Payment for Personal Protective Equipment" on November 15, 2007, in the Federal Register at 72 FR 64342-64430. Copies are available for viewing or downloading at the Federal Register website, https://www.federalregister.gov/articles/2007/11/15/07-5608/employer-payment-for-personal-protective-equipment. The final rule became effective on February 13, 2008 and must have been implemented by May 15, 2008. It addresses 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." (72 FR 64342, November 15, 2007).

Your questions are answered as follows:

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?

Answer: In the final rule, OSHA said, "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." 72 FR 64342-64359. 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." Id. 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. Id.

Question #2: Are employers allowed to charge employees a deposit for protective equipment, if the employer has a verbal or written agreement with the employee that the employer will re-pay the deposit paid by the employee after a specified length of successful employment or upon return of the PPE should employment be terminated? If so, can the employer charge a deposit amount greater than the value of the PPE issued?

Answer: As discussed above, a deposit system may be used. However, a deposit system that results in a cost to the employee would be prohibited by the payment rule if the employer is required to provide that PPE at no cost to the employee. For example, OSHA has said that reimbursement systems - in which an employee provides the PPE at his or her own cost and the employer reimburses the employee - that delay payment of PPE should not exceed one billing cycle or one pay period. Enforcement Guidance for Personal Protective Equipment in General Industry, OSHA CPL 02-01-050, 2011 at page 35.

Question #3: Are employers allowed to charge employees for protective equipment, if the employer has a verbal or written agreement with the employee that the protective equipment becomes the property of the employee? Example: Employees are required to use harness, lanyard, etc. for personal fall protection. Employees are issued the equipment by the employer and the employee pays for the equipment by deposit, payroll deduction, otherwise or through a combination of payment arrangements with the agreement that the equipment then belongs to the employee. Is that allowed? If the employee refuses to pay for and subsequently own the equipment, what effect does that have on the employer's responsibility to provide PPE necessary for the assigned work?

Answer: Except as provided by paragraphs 29 CFR 1926.95(d)(2) through (d)(6), 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. Employees can volunteer to use PPE they already own, as long as the PPE is adequate and the employer allows its use on the job. Employers cannot force employees to purchase PPE that must be provided at no cost by the employer.

Question #4: Are employers allowed to charge employees for protective equipment via payroll deduction or otherwise, if the employee fails to return employer issued PPE upon termination of employment? If so, is the employer required to have authorization from the employee to make a payroll deduction for such a charge? Or, can the employer just assume the employee has "lost" the employer issued equipment and deduct it from their pay?

Answer: In the final rule, OSHA noted 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." 72 FR 64342-64359.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,

James G. Maddux, Director
Directorate of Construction