Personal protective equipment (PPE) is something that you may need in the workplace. We often associate the term with the COVID-19 pandemic, where public health officials for years have advised people to use PPE not just at work but in their daily lives to reduce the spread of the virus. There are other aspects of PPE that are relevant in the workplace as well, though. For example, construction workers may need PPE to keep them safe on the job site.
With that in mind, what’s the responsibility of the employer vs. the employee to provide PPE?
The Occupational Safety and Health Act
The Occupational Health and Safety Act, or OSH, is a federal statute that deals with workplace safety. The Occupational Safety and Health Administration or OSHA is the agency responsible for the enforcement of workplace safety guidelines and regulations. Workers can’t file a lawsuit for damages under the OSH Act, but the regulations and guidelines can be used to determine the safety measures and equipment an employer should provide to the people who work for them.
According to the General Duties Clause of the OSH Act, employers have to provide workplaces that are free of recognized hazards that could lead to serious physical harm or death to workers. OSHA provides published information on PPE and COVID-19, and the administration published a document in response to the pandemic.
Who Has to Buy PPE?
There are two questions that can come up with regard to a physically dangerous job.
The first is whether an employer is required to provide PPE and the second is who has to pay for PPE if it’s required.
According to OSHA, an employer is generally responsible for providing PPE at its own expense. If an employee gets their own PPE, the employer is usually responsible for reimbursing them.
Even so, if there is an accident and an employer doesn’t provide adequate PPE, there is no private right of action. That means an injured employee can’t file a lawsuit relating to the issue. OSHA issues its own penalties when a company doesn’t follow regulatory guidelines.
You may qualify for workers’ compensation if you’re hurt.
Worker’s compensation is insurance for workers who are hurt on the job. Benefits include reimbursement of medical bills and wage replacement. Every state has its own worker’s compensation program, and the funding is usually provided by employers.
If a worker gets sick or hurt because their employer didn’t provide the appropriate PPE, they may be able to make a claim for benefits from the worker’s compensation program, with limits.
There’s a term that’s relevant here, which is the exclusivity rule. A worker’s compensation program will typically pay benefits to employees with an injury or occupational disease without requiring them to prove their employer was at fault. The benefit for an employer is that they can’t be sued in court, and this is the exclusivity rule.
There are exceptions in every state to the exclusivity rule.
For example, there’s a third-party liability. If an employee is injured on the job, but it’s because of the intentional act or negligence of someone who’s not the employer, the worker may pursue a legal claim against the third party.
Another exception is fraudulent concealment. This references a situation where an employer might hide a worker’s injuries with fraudulent intent.
An employer has to be covered by worker’s compensation insurance for the exclusivity rule to be applicable, and worker’s compensation doesn’t cover intentional acts.
As far as COVID-19 and PPE, the exclusivity rule could apply where exposure to viruses is a normal part of the job, and the employer makes a good faith effort to stay compliant with standards set forth by OSHA.
If an employer were to intentionally ignore guidelines from OSHA about PPE, or they didn’t act when employees are clearly getting sick, then there might be an applicable exception so a worker could sue for damages.
Breach of Contract
If an employment contract has particular provisions about PPE, then an employee might be able to sue for breach of that if it’s not provided. This isn’t likely to be relevant in most positions, although in healthcare and construction, there might be relevant provisions in the employment contract.
Overall, an employer should pay for PPE, but if they don’t and you’re hurt at work, or you get sick, your recourse may end up being through worker’s compensation rather than suing your actual employer.
If you’re hurt at work, it’s always a good idea to speak to an attorney.