By: K. Brad Oakley
Quick Overview
On Thursday, December 12, 2024, the Occupational Safety and Health Administration (“OSHA”) announced that it had finalized a revision to its construction standard for personal protective equipment (“PPE”) – 29 CFR § 1926.95. The revision explicitly requires that all PPE must properly fit employees. The final rule will go into effect on January 13, 2025.
Background
Currently, OSHA has standards that address PPE in general industry, shipyard employment, marine terminals, longshoring, and construction. Employers in these industries are required to provide PPE when it is necessary to protect employees from job‑related hazards. OSHA also generally requires employers to pay for PPE when it is required to comply with OSHA standards.
Unlike the general industry and shipyards PPE standards, however, the current construction PPE standard does not explicitly require PPE to properly fit each affected employee:
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
29 CFR § 1926.95(a). The standard further obligates employers to verify that PPE an employee self-supplies are adequate, properly maintained, and sanitary, as well as ensuring that all PPE is of safe design and construction for the work to be performed. 29 C.F.R. § 1926.95(b), (c).
According to OSHA, it has historically interpreted § 1926.95 (through written guidance and enforcement actions) to require construction PPE to properly fit employees. Nonetheless, OSHA believes that revising the standard to explicitly reference properly fitting PPE will clarify employers’ obligations under the standard and align the construction PPE standards with the general industry and shipyards PPE standards.
Explanation of Revision to Construction PPE Standard
Due to greater diversity in the workplace, the issue of properly fitting PPE is particularly important. Smaller construction workers, including some women, and larger workers may have issues with wearing standard-size PPE that does not always properly adjust to varying body shapes. It is well-documented that improperly fitting PPE may not protect an employee at all or, in fact, may create additional hazards to the employee and those around them. OSHA states that it also identified evidence that employees are less likely to use improperly fitting PPE. Additionally, some commentators noted that ill-fitting PPE may also lead to a less inclusive workplace environment.
Consequently, OSHA is revising § 1926.95(c) to require employers to ensure that “all personal protective equipment: (1) is of safe design and construction for the work to be performed; and (2) is selected to ensure that it properly fits each affected employee.”
In anticipation of questions from the industry as to what constitutes properly‑fitting PPE, OSHA stated in the proposed rule that “properly fits” means, in part, that the PPE “does not create additional safety and health hazards arising from being either too small or too large.” See 88 FR 46711. OSHA believes this “performance-based standard” provides employees with specificity while still maintaining “flexibility to allow employers to select the PPE necessary to protect their workers on the job.” Still, OSHA stated that it is “willing to work with construction industry stakeholders to develop specific guidance that will broadly address any confusion or concerns the industry has about providing PPE that properly fits workers.”
Because OSHA has historically interpreted the standard to require proper fit, it does not believe that the revision presents a substantive change to the rule. Similarly, OSHA believes the revised rule will only impose “limited costs” on employers that may not be currently providing properly fitting PPE to their employees.
If you have any questions regarding OSHA’s revised construction PPE standard or any other questions concerning workplace safety, do not hesitate to reach out to a member of Jackson Kelly’s Workplace Safety and Health Team.