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PPE: New consensus standard released; Unionized employers applaud Supreme Court decision on donning PPE

ANSI approves new consensus standard on PPE

With many options, the choice of Personal Protective Equipment (PPE) is not an easy task for employers. Federal regulations require that employers provide PPE that meets minimum performance requirements, but in most cases (respiratory equipment is notable exception) do not specify any type of conformity assessment. While a $1.50 pair of safety glasses may meet the same minimum requirements as a $20 pair, how do they really compare?

Designed in part to be a resource for employers in evaluating PPE, a new voluntary consensus standard, ANSI/ISEA 125-2014, has been approved by the American National Standards Institute (ANSI). It features three methods of conformity assessment, all of which include product testing, process quality management, corrective action and recordkeeping, as well as a standardized way to communicate the product evaluation to a purchaser. Guidance for selecting the appropriate level of conformity is included in an appendix.

Employers may look to including compliance to this standard as a requirement of a purchase contract with a supplier. According to an article in EHS Today, a panel member noted: "By only purchasing PPE from manufactures that certify to ANSI/ISEA 125-2014 (especially Level 3), employers can be assured that statements of conformity to PPE standards are validated claims. This translates to due diligence by industry and a lower risk portfolio for employees."

Unionized employers applaud Supreme Court decision on donning PPE

The time steelworkers spend putting on and taking off protective gear falls within the scope of a Fair Labor Standards Act (FLSA) provision denying compensation for "changing clothes," the U.S. Supreme Court unanimously ruled Jan. 27, 2014 (Sandifer v. United States Steel Corp., No. 12-417).

Section 203(o) allows employers and labor unions to negotiate collective bargaining agreements that exclude from compensable working time "any time spent in changing clothes or washing at the beginning or end of each workday." Under collective bargaining agreements between U.S. Steel and the United Steelworkers, dating back to 1947, workers are paid only for the eight-hour shift at their workstation, not for time they spend donning and doffing protective clothing in the locker room. The steelworkers, however, argued that the donning and doffing of protective gear does not meet the FSLA's definition of "changing clothes."

The Supreme Court did not agree. Although the Supreme Court concluded that safety glasses, earplugs and respirators do not meet its definition of "clothes," it asserted that the key question is "whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.'"

Unionized employers should examine their collective bargaining agreements to determine if they want to add explicit language to exclude compensation for time spent putting on and taking off protective clothing and gear. It's important to note that this decision does not apply to non-unionized employers.