By Adam R. YoungJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced last week a notice of proposed rulemaking to revise the personal protective equipment standard for the construction industry. A revised standard will clarify that personal protective equipment (PPE) must fit each affected employee properly, to protect them from occupational hazards.

For the foreseeable future, experts estimate that the United States will face a massive shortage of construction workers, requiring employers continue to recruit new employees to the industry and change the workforce’s demographics. A more inclusive workforce (especially with women and smaller employees) means that some PPE in use will become inadequate for many employees.  PPE sometimes comes in limited size options or “one size fits all” that only properly fit the middle 95% of employees.  OSHA’s announcement expanded on the PPE safety issue:    

“The failure of standard-sized PPE to protect physically smaller construction workers properly, as well as problems with access to properly fitting PPE, have long been safety and health concerns in the construction industry, especially for some women. The proposed rule clarifies the existing requirement, and OSHA does not expect the change will increase employers’ costs or compliance burdens. The proposed revision would align the language in OSHA’s PPE standard for construction with standards for general industry and maritime.”

OSHA chief Doug Parker said that “if personal protective equipment does not fit properly, an employee may be unprotected or dangerously exposed to hazards and face tragic consequences… PPE must fit properly to provide adequate protection to employees. Improperly fitting PPE may fail to provide any protection to an employee, present additional hazards, or discourage employees from using such equipment in the workplace.”

Accordingly, OSHA is beginning the rulemaking process to require better fitting PPE in construction. The process for revising existing permanent OSHA standards is a long one, and requires that that agency solicit input from many stakeholders.  Employers and industry organizations are encouraged to submit comments and hearing requests online using the Federal eRulemaking Portal and reference Docket No. OSHA-2019-0003. Comments and hearing requests must be submitted by Sept. 18, 2023.

Construction employers also have a General Duty to protect employees from any recognized hazard. In the meantime as OSHA clarifies the construction PPE standard, construction employers should ensure that they have performed adequate PPE hazard assessments for the hazards their employees encounter.  Employers can preemptively assess any PPE sizing issues and whether employees are adequately protected. Employee involvement likely will help those assessments. 

Seyfarth continues to track new rules and PPE requirements in construction. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.