On December 11, 2024, OSHA took a significant step by finalizing a rule mandating construction employers to provide properly fitting Personal Protective Equipment (PPE). This rule is set to become effective on January 13, 2025, but it faces potential setbacks due to political opposition. The new rule aims to address the long-standing issue of PPE fit, especially for smaller workers and women. However, it lacks clear guidelines on what constitutes "properly fitting" PPE, leading to industry concerns.

OSHA's PPE Rule - A Battle for Fit and Compliance

History of the Rule

This change has been in the works for quite some time. In 2011, an OSHA advisory committee first brought it to the forefront. Five years later, a written proposal was made. But in 2016, the proposal faced strong opposition from the construction industry and the first Trump administration, and it was ultimately thwarted. Despite this setback, the rule was finally finalized this month. It won't take effect until January 13, 2025, but its future remains uncertain with the upcoming change of administrations and the control of the U.S. Senate and Congress by the Republicans. A Congressional Review Act (CRA) reversal could lead to a permanent prohibition on such rulemaking without explicit congressional legislation.The regulation was published in the Federal Register on December 12, 2024. The added language to the construction standard mirrors the existing PPE fit requirements in the general industry and shipyard standards. During the comment period from July 20 to September 18, 2023, comments from both industry skeptics and supporters echoed previous concerns.

OSHA's Perspective

OSHA insists that PPE that doesn't fit properly is a problem for "smaller construction workers," particularly women. They claim that implementing the standard can increase productivity and expand the market for differently sized PPE. Many female employees have praised the change and expressed frustration with improperly fitting PPE. The preamble highlights instances where female employees had to create makeshift PPE.However, industry comments also acknowledge the importance of PPE for all employees while expressing concern about the lack of clarity on how the rule will be implemented. The core issue is that the rule requires PPE to "fit properly" but doesn't define what that means. There is no guidance on factors employers or OSHA investigators should consider when evaluating compliance.OSHA previously dismissed this concern, stating that general industry employers have no trouble understanding the phrase "properly fits." But several commenters requested more detailed regulatory text and clarification of responsibilities. The American Industrial Hygiene Association (AIHA) recommended an operational definition, while the National Institute for Occupational Safety and Health (NIOSH) agreed with OSHA but noted the term's lack of universal understanding. Other comments highlighted the need to consider pregnancy-related body changes in determining PPE fit but didn't suggest a specific definition.Ultimately, OSHA concluded that the phrase "properly fits" provides enough information for employers to select PPE that will protect workers without creating additional hazards. They pointed to minimal confusion in other sectors and few citations for improperly fitting PPE.

Universal Fit and Compliance

We previously warned that the lack of clarity would leave employers unsure about whether the range of sizes they offer complies with the requirement for properly fitting PPE. One question is whether "universal fit" PPE can assist with compliance. OSHA noted in a footnote that one comment objected to the term "universal fit," arguing that no PPE is truly universal. However, OSHA maintains that some adjustable PPE will fit nearly all construction industry workers and can be used as a blanket mode of compliance.While this provides some guidance, employers still need to be cautious about compliance. The effective date of January 13, 2025, remains a crucial consideration.Ogletree Deakins' Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Construction and Workplace Safety and Health blogs as more information becomes available.Follow and SubscribeLinkedIn | Instagram | Webinars | Podcasts