On December 11, 2024, the Occupational Safety and Health Administration (OSHA) issued a statement that it had finalized a rule amending 29 C.F.R. 1926.95(c) to require construction employers to make personal protective equipment (PPE) available that “properly fits” their employees.

Quick Hits

• On December 11, 2024, OSHA finalized a rule requiring construction employers to provide properly fitting PPE, effective January 13, 2025, though it faces potential rollback due to political opposition.
• The new OSHA rule aims to address PPE fit issues, particularly for smaller workers and women, but lacks clear guidance on defining “properly fitting” PPE, causing industry concern.
• Despite OSHA’s assertion that the term “properly fits” is sufficiently clear, industry feedback highlights the need for more detailed regulatory text and clarification on compliance.

This change has been on OSHA’s to-do list for quite some time. In 2011, an OSHA advisory committee first put it on the radar—followed by a written proposal five years later. The 2016 proposal was ultimately thwarted after receiving staunch opposition from both the construction industry and the first Trump administration. Although the rule was finalized this month, it will not become effective until January 13, 2025—but may not make it that far. As a result of the upcoming change of administrations and with both the U.S. Senate and the U.S. Congress being under Republican control, it is likely that the rule will either meet the same fate as its 2016 counterpart or be reversed via the Congressional Review Act (CRA). A CRA reversal would effectively result in a permanent prohibition on such rulemaking in the absence of express legislation from Congress.

The regulation was published in the Federal Register on December 12, 2024. The added language to the construction standard mirrors the current PPE fit requirements found in the general industry and shipyard standards. In OSHA’s notice of proposed rulemaking (NPRM) issued on July 20, 2023, the agency set a comment period on the proposal through September 18, 2023. During that period, comments from industry skeptics and supporters alike mirrored those previously seen.

OSHA reiterated its primary claim that PPE that does not properly fit is an issue for “smaller construction workers,” particularly women, and that implementation of the standard could increase productivity and expand the market for differently sized PPE. Many supporters of the regulatory change submitted comments reflecting that female employees praised the change and bemoaning instances of working with improperly fitting PPE. The preamble highlighted instances in which female employees had created improvised PPE when their PPE did not properly fit.

The industry’s comments acknowledged the essential nature of PPE for all employees while also continuing to express concern about the lack of clarity and guidance on how this rule would be actually implemented by employers. The core of the industry’s concern remained that the rule creates a requirement that an employee’s PPE must “fit properly” but it does not provide an explanation for how “properly fitting” PPE will be defined. Many comments highlighted this hole would create a significant opportunity for employees to complain about whether the provided PPE “properly fit” them if the PPE was simply uncomfortable. There is also no guidance on what factors employers or OSHA’s investigators should consider when evaluating whether PPE properly fits and employee and is therefore compliant with the standard.

OSHA previously dismissed this issue, stating that “employers in general industry have had no issue understanding the phrase ‘properly fits’ with regard to PPE.” The preamble reflects that several commentors requested more detailed regulatory text and clarification of responsibilities and some included recommendations. The American Industrial Hygiene Association (AIHA) recommended an operational definition for compliance, while the National Institute for Occupational Safety and Health (NIOSH) agreed with OSHA but noted the term was not universally understood. Other comments highlighted the need to consider how the body changes during pregnancy in the determination of whether PPE “properly fits” but did not suggest a specific definition for the phrase.

Ultimately, OSHA came to the same conclusion as before that the phrase “‘properly fits’ provides employers with enough information that they can select PPE for their workers that will adequately protect them from the hazards of the worksite without creating additional hazards.” OSHA pointed to the minimal confusion in other sectors and few citations for improperly fitting PPE as a suggestion that most employers can comply with the standard using the phrase “properly fits” without a definition.

We previously warned that this lack of clarity would mean that employers would still have to determine whether the range of sizes they offer would comply with the requirement for properly fitting PPE. One question to resolve is whether the “universal fit” of the PPE would assist with compliance. OSHA did note in a footnote in the preamble that one comment included an objection to the term “universal fit” arguing that “[n]o PPE is universal fit, even the most adjustable PPE may not fit workers on the extremes of anthropometric data.”. In light of this comment, OSHA acknowledged that:

[A]t the tail ends of the distribution of human variation, some adjustable PPE will not fit. For the purposes of this analysis, however, OSHA maintains that some items of PPE that come in standard, adjustable sizes will fit nearly all individuals working in the construction industry and so maintains this designation for a limited number of items in this analysis.

While this does mean employers can use the “universal fit” as a blanket mode of compliance with the standard, OSHA’s comment indicates that use of “universal fit” should allow compliance with “nearly all individuals working in the construction industry[.]”

Ultimately, while this rule remains a likely rollback priority for the second Trump administration, employers should still be mindful of the January 13, 2025, effective date.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved. by: John Surma, Savannah M. Selvaggio of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. For more on OSHA, visit the NLR Health Law Managed Care section