Happy New Year!
After approximately a decade of discussing a properly fitting PPE Rule in the construction industry, OSHA's Final Rule becomes effective January 13, 2025. The Final Rule explicitly requires that PPE is selected to ensure that it "property fits" affected employees.
In the preamble to the Final Rule, OSHA stated that public
comments were overwhelmingly supportive. OSHA focused heavily on
women using improperly fitting PPE as justification, relying on
personal experiences to highlight that women are disproportionately
provided PPE that may not be effective because of improper fitting
issues.
Most of the opposition to the Final Rule focused on the ambiguity
of what "properly fits" means and the uncertainty it
could cause employers. OSHA's response pointed to an existing
requirement in the general industry and the relatively small number
of citations over approximately a decade to demonstrate that
employers are not likely to have compliance issues. Notwithstanding
this fact, OSHA suggested that it would issue additional guidance
for compliance purposes. It is also worth noting that the Final
Rule does not have a requirement that a competent person must
verify that PPE fits properly. The preamble also opines that
discomfort does not necessarily mean PPE is not properly
fitting.
Given the political landscape of deregulation and recent Supreme
Court cases, it is likely that the Final Rule may face additional
legal challenges. However, regardless of those legal challenges,
prudent construction employers should consider reviewing their PPE
policies and practices to ensure there is written documentation
that demonstrates that PPE selection is individualized and
employees affirmatively acknowledge that they have undergone a
fitting process and issued PPE that fits them properly.
Furthermore, employees should also be directed, in writing, to
notify their supervisors if PPE becomes damaged, lost, or
subsequently does not fit for whatever reason.
We hope everyone has a great and safe 2025!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
