[Federal Register: November 15, 2007 (Volume 72, Number 220)]
[Rules and Regulations]
[Page 64341-64430]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15no07-22]
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Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1910, 1915, 1917 et al.
Employer Payment for Personal Protective Equipment; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918 and 1926
[Dockets S-042 (OSHA docket office) and OSHA-S042-2006-0667
(regulations.gov)]
[RIN No. 1218-AB77]
Employer Payment for Personal Protective Equipment
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final Rule.
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SUMMARY: Many Occupational Safety and Health Administration (OSHA)
health, safety, maritime, and construction standards require employers
to provide their employees with protective equipment, including
personal protective equipment (PPE), when such equipment is necessary
to protect employees from job-related injuries, illnesses, and
fatalities. These requirements address PPE of many kinds: hard hats,
gloves, goggles, safety shoes, safety glasses, welding helmets and
goggles, faceshields, chemical protective equipment, fall protection
equipment, and so forth. The provisions in OSHA standards that require
PPE generally state that the employer is to provide such PPE. However,
some of these provisions do not specify that the employer is to provide
such PPE at no cost to the employee. In this rulemaking, OSHA is
requiring employers to pay for the PPE provided, with exceptions for
specific items. The rule does not require employers to provide PPE
where none has been required before. Instead, the rule merely
stipulates that the employer must pay for required PPE, except in the
limited cases specified in the standard.
DATES: This final rule becomes effective on February 13, 2008. The
final rule must be implemented by May 15, 2008.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor of Labor for Occupational Safety and Health,
Office of the Solicitor of Labor, Room S-4004, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive
petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: Mr. Kevin Ropp, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. The Proposed Rule
IV. Rationale for Requiring PPE Payment and Description of the Final
Rule
V. PPE for Which Employer Payment Is Required
VI. Employee Owned PPE
VII. Industries Affected
VIII. Acceptable Methods of Payment
IX. Effective Dates
X. Effect on Existing Union Contracts
XI. Effect on Other OSHA Standards
XII. Miscellaneous Issues
XIII. Other Alternatives Considered During the Rulemaking Process
XIV. Legal Authority
XV. Final Economic and Regulatory Flexibility Analyses
XVI. Environmental Assessment
XVII. Federalism
XVIII. Unfunded Mandates Reform Act
XIX. OMB Review Under the Paperwork Reduction Act
XX. State Plan Standards
XXI. Authority and Signature
XXII. Regulatory Text
I. Introduction
In 1999, OSHA issued a proposal to require employers to pay for all
protective equipment, including personal protective equipment (PPE),
with explicit exceptions for certain safety shoes, prescription safety
eyewear, and logging boots (64 FR 15402). The proposal cited two
primary reasons for requiring employers to pay for PPE. First, OSHA
preliminarily concluded that the Occupational Safety and Health Act of
1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE
that is necessary to protect the safety and health of employees.
Second, OSHA preliminarily concluded that an across-the-board employer-
payment requirement would result in safety benefits by reducing the
misuse or non-use of PPE (64 FR 15406-07). Following an initial notice
and comment period, an informal rulemaking hearing, a second notice and
comment period on specific issues, and careful Agency deliberation,
OSHA finds that its preliminary conclusions are appropriate and is
therefore issuing this final standard requiring employers to pay for
PPE, with limited exceptions.
II. Background
Employees often need to wear protective equipment, including
personal protective equipment (PPE), to be protected from injury,
illness, and death caused by exposure to workplace hazards. PPE
includes many different types of protective equipment that an employee
uses or wears, such as fall arrest systems, safety-toe shoes, and
protective gloves. Many OSHA standards require employers to provide PPE
to their employees or to ensure the use of PPE. Some standards indicate
in broad performance terms when PPE is to be used, and what is to be
used (See, e.g., 29 CFR 1910.132). Other provisions are very specific,
such as 29 CFR 1910.266(d)(1)(iv), which requires that chain saw
operators be provided with protective leggings during specific
operations, and 29 CFR 1910.1027(g)(1), which requires respiratory
protection for employees exposed to cadmium above a certain permissible
exposure limit (PEL).
Some OSHA standards specifically require the employer to pay for
PPE. However, most are silent with regard to whether the employer is
obligated to pay. OSHA's health standards issued after 1978 have made
it clear both in the regulatory text and in the preamble that the
employer is responsible for providing necessary PPE at no cost to the
employee (See, e.g., OSHA's inorganic arsenic standard, 29 CFR
1910.1018(j)(1) and 43 FR 19584). In addition, the regulatory text and
preamble discussion for some safety standards have also been clear that
the employer must both provide and pay for PPE (See, e.g., the logging
standard, 29 CFR 1910.266(d)(1)(iii) and (iv) and 59 FR 51701).
For most PPE provisions in OSHA's standards, however, the
regulatory text does not explicitly address the issue of payment for
personal protective equipment. For example, 29 CFR 1910.132(a) is the
general provision requiring employers to provide PPE when necessary to
protect employees. This provision states that the PPE must be provided,
used, and maintained in a sanitary and reliable condition. It does not
state that the employer must pay for it or that it must be provided at
no cost to employees. The provisions that are silent on whether the
employer must pay have been subject to varying interpretation and
application by employers, OSHA, the Occupational Safety and Health
Review Commission (Review Commission), and the courts.
In 1994, OSHA established a nationwide policy on the issue of
payment for required PPE in a memorandum to its field staff dated
October 18, 1994, ``Employer Obligation to Pay for Personal Protective
Equipment.'' OSHA stated that for all PPE standards the employer must
both provide, and pay for, the required PPE, except in limited
situations. The memorandum stated that where PPE is very personal in
nature and used by the employee off the job, such as is often the case
with steel-toe safety shoes (but not metatarsal foot protection), the
issue of
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payment may be left to labor-management negotiations.
However, the Review Commission declined to accept the
interpretation embodied in the 1994 memorandum as it applied to 29 CFR
1910.132(a). In Secretary of Labor v. Union Tank Car Co., 18 O.S.H.
Cas. (BNA) 1067 (Rev. Comm. 1997), an employer was issued a citation
for failing to pay for metatarsal foot protection and welding gloves.
The Review Commission vacated the citation, finding that the Secretary
had failed to adequately explain the policy outlined in the 1994
memorandum in light of several earlier letters of interpretation from
OSHA that it read as inconsistent with that policy. In response to the
Union Tank decision, OSHA issued the proposed standard on March 31,
1999 (64 FR 15402-15441).
III. The Proposed Rule
The proposed rule would have established a uniform requirement that
employers pay for all types of PPE required under OSHA standards,
except for certain safety-toe shoes and boots, prescription safety
eyewear, and logging boots. The proposal cited two main justifications
for requiring employers to pay for PPE. First, OSHA preliminarily
concluded that the OSH Act requires employers to pay for PPE that is
necessary for employees to perform their jobs safely. Second, OSHA
preliminarily concluded that the proposed rule would enhance compliance
with existing PPE requirements in several practical ways, thereby
significantly reducing the risk of non-use or misuse of PPE (64 FR
15406-07).
A. Preliminary Statutory Analysis
OSHA advanced three main justifications for preliminarily
interpreting the OSH Act to require employers to pay for virtually all
PPE. As a threshold matter, OSHA cited the statute and legislative
history that Congress intended that employers bear general financial
responsibility for the means necessary to make workplaces safe (64 FR
15404). The Agency believed that this intent was evidenced by the fact
that the statute makes employers solely responsible for compliance with
safety and health standards. The employer's legal responsibility to
ensure compliance implies an obligation to pay for the means necessary
to that end (Id.). OSHA also relied upon statements in the legislative
history demonstrating that lawmakers expected employers to bear the
costs of complying with OSHA standards (Id.).
OSHA further preliminarily concluded that requiring employers to
pay for PPE was a logical extension of the undisputed principle that
employers must pay for engineering controls. The proposal noted that
most standards require employers to install engineering controls, such
as ventilation devices, and to implement administrative measures, such
as establishing specific regulated areas or danger zones, as the
primary means for reducing employee exposure to hazardous conditions.
Since the Agency viewed PPE as another type of hazard control measure
used to protect employees, there was no basis to distinguish PPE from
other hazard controls such as engineering controls and administrative
controls for purposes of cost allocation (64 FR 15408). OSHA also
indicated that requiring employers generally to pay for PPE would be
consistent with the Agency's approach of including explicit
requirements in many health standards that PPE must be provided at no
charge to employees.
B. Safety and Health Benefits
Although OSHA proposed the PPE payment rule primarily to clarify
employers' obligations under its standards that require employers to
provide PPE, the Agency also believed that the revised rules would
improve protections for employees who must wear PPE. OSHA cited a
number of reasons underlying this belief in the preamble to the
proposed rule. First, the Agency believed that employers were more
knowledgeable about hazards existing in the workplace, and were
therefore in the best position to identify and select the correct
equipment and maintain it properly (Id. at 15409). Second, the Agency
believed that employer payment for PPE would reduce the risk of
employees not using or misusing PPE by ensuring that employers maintain
central control over the selection, issuance, and use of PPE (Id.).
Third, OSHA believed that employees would be more likely to cooperate
in achieving full compliance with existing standards if protective
equipment was provided at no charge (Id.). In the Agency's opinion, all
of these considerations together would serve to increase the use and
effectiveness of PPE, and thus reduce the incidence of injuries and
illnesses that are caused by non-use or misuse of PPE.
C. Proposed Exceptions
OSHA proposed to require the employer to pay for all PPE required
by OSHA standards, with explicit exceptions for certain safety-toe
protective footwear and prescription safety eyewear. Safety-toe
protective footwear and prescription safety glasses were excepted from
the employer payment requirement, in large part because these items
were considered to be very personal in nature and were often worn off
the jobsite. The proposal would have allowed the exceptions if they met
the following conditions: (1) The employer permits such footwear or
eyewear to be worn off the jobsite; (2) the footwear or eyewear is not
used at work in a manner that renders it unsafe for use off the job-
site; and (3) such footwear or eyewear is not designed for special use
on the job. In addition, under the proposed revision, the employer
would not have to pay for logging boots required by 29 CFR
1910.266(d)(1)(v) (Id. at 15403).
The limited exceptions to the general payment rule recognized that
there are certain types of PPE that fall outside the scope of the
general statutory requirement for employers to pay for the means of
compliance with OSHA standards. While safety-toe protective shoes and
boots, prescription safety eyewear, and logging boots are necessary to
protect employees, the Agency considered other factors in deciding to
exempt this equipment from the employer payment requirement, including
that the equipment is very personal, is often used outside the
workplace, and that it is taken by employees from jobsite to jobsite
and employer to employer. The Agency stated that there is ``little
statutory justification'' for requiring employers to pay for this type
of PPE (Id. at 15407).
The proposal asked for comment on the exceptions to the general
employer payment requirement. One alternative on which public input was
specifically requested would have excepted any type of PPE that the
employer could demonstrate was personal in nature and customarily used
off the job (Id. at 15416). OSHA also sought comment on whether there
were other specific types of PPE besides safety-toe shoes and boots and
prescription safety eyewear that should be excepted, or whether
employers should pay for all PPE including safety-toe shoes and boots
and prescription safety eyewear (Id.). Finally, the proposal sought
comment on whether the exceptions were appropriate in high-turnover
industries like construction and whether unique issues in the maritime
industry should affect the issue of who pays for PPE (Id.).
On July 8, 2004, OSHA published a notice to re-open the record on
another category of PPE--tools of the trade--that some commenters
suggested should be exempted from an employer payment requirement (69
FR 41221-41225). Specifically, OSHA asked a number of
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questions and solicited comment on whether and how a final rule should
address situations where PPE has been customarily provided by
employees.
The comments received by the Agency during this limited re-opening
are included in the discussion of the rulemaking record below.\1\
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\1\ Comments received in response to the re-opening are
indicated as Exhibits ``45: X'' or ``46: X.'' All other citations
refer to comments and testimony in response to the proposal.
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IV. Rationale for Requiring PPE Payment and Description of the Final
Rule
A. Rationale for Requiring PPE Payment
In this final rule, OSHA is requiring employers to pay for the PPE
used to comply with OSHA standards, with a few exceptions. OSHA is
promulgating the final rule for three primary reasons. First, the rule
effectuates the underlying requirement in the OSH Act that employers
pay for the means necessary to create a safe and healthful work
environment. This includes paying for the requirements in OSHA's safety
and health standards. Second, the rule will reduce work-related
injuries and illnesses. It is thus a legitimate exercise of OSHA's
rulemaking authority to promulgate ancillary provisions in its
standards that are reasonably related to the purposes of the underlying
standards. Third, the rule will create a clear policy across OSHA's
standards, thus reducing confusion among employers and employees
concerning the PPE that employers must provide at no cost to employees.
1. The OSH Act Requires Employer Payment for PPE
OSHA is requiring employers to pay for PPE used to comply with OSHA
standards in order to effectuate the underlying cost allocation scheme
in the OSH Act. The OSH Act requires employers to pay for the means
necessary to create a safe and healthful work environment. Congress
placed this obligation squarely on employers, believing such costs to
be appropriate in order to protect the health and safety of employees.
This final rule does no more than clarify that under the OSH Act
employers are responsible for providing at no cost to their employees
the PPE required by OSHA standards to protect employees from workplace
injury and death.
This policy is consistent with OSHA's past practice in numerous
rulemakings. Since 1978, OSHA has promulgated nearly twenty safety and
health standards that explicitly require employers to furnish PPE at no
cost. For example, the standards for logging (Sec. 1910.266), noise
(Sec. 1910.95), lead (Sec. 1910.1025), asbestos (Sec. 1910.1001) and
bloodborne pathogens (Sec. 1910.1030) require employers to provide
employees with PPE at no cost to employees. In litigation following the
issuance of some of these standards, the courts and the Review
Commission have upheld OSHA's legal authority to require employers to
pay for PPE.
2. The Rule Will Result in Safety Benefits
Separate from effectuating the statutory cost allocation scheme,
this rule will also help prevent injuries and illnesses. OSHA has
carefully reviewed the rulemaking record and finds that requiring
employers to pay for PPE will result in significant safety benefits. As
such, it is a legitimate exercise of OSHA's statutory authority to
promulgate these ancillary provisions in its standards to reduce the
risk of injury and death.
There are three main reasons why the final rule will result in
safety benefits:
When employees are required to pay for their own PPE,
many are likely to avoid PPE costs and thus fail to provide
themselves with adequate protection. OSHA also believes that
employees will be more inclined to use PPE if it is provided to them
at no cost.
Employer payment for PPE will clearly shift overall
responsibility for PPE to employers. When employers take full
responsibility for providing PPE to their employees and paying for
it, they are more likely to make sure that the PPE is correct for
the job, that it is in good condition, and that the employee is
protected.
An employer payment rule will encourage employees to
participate whole-heartedly in an employer's safety and health
program and employer payment for PPE will improve the safety culture
at the worksite.
OSHA's conclusions regarding the safety benefits of the employer
payment rule are supported by the numbers of independent occupational
safety and health experts in the record who stated that employer
payment for PPE will result in safer working conditions. Independent
safety groups that supported the rule and agreed with OSHA's analysis
that it will result in safety benefits include: The American College of
Occupational and Environmental Medicine (ACOEM); the American
Association of Occupational Health Nurses (AAOHN); and the American
Society of Safety Engineers (ASSE). The National Institute for
Occupational Safety and Health (NIOSH), the federal agency with expert
responsibility for occupational safety and health research created by
Congress in the OSH Act, also strongly supported OSHA's conclusions
that an employer payment rule would result in significant safety
benefits.
3. Clarity in PPE Payment Policy
Another benefit of the final PPE payment rule is clarity in OSHA's
policy. While it is true that most employers pay for most PPE most of
the time, the practices for providing PPE are quite diverse. Many
employers pay for some items and not for others, either as a matter of
collective bargaining or long standing tradition. In some cases, costs
are shared between employees and employers. In other workplaces, the
employer pays for more expensive or technologically advanced PPE while
requiring employees to pay for more common items. However, in some
workplaces exactly the opposite is true.
Collective bargaining agreements often contain pages of text
describing PPE provisions, including lists of the items employers will
pay for and those that will be the responsibility of employees. Even
these have little or no consistency. For example, Ms. Nowell of the
United Food and Commercial Workers Union (UFCW) pointed to differences
in PPE payment practices across food processing establishments:
Our contracts show differences across industries, as well as
across companies. We have also found differences between union
plants and those that are non-union. Non-union workers [are] paying
for more of their PPE.
This variation has led to disparate treatment of workers who do
the same jobs, sometimes for the same company, but at different
locations. * * * One of the most inconsistent items, both as to
their requirement and the issue of who pays, is rubber boots, often
steel toed, for production workers. The floors in poultry and meat
plants and other food processing as well * * * are wet, often from
standing water, and slippery from fat and product that invariably
covers the floors (Tr. 184-186).
Improved clarity in OSHA's standards, as well as a more consistent
approach from company to company, will have benefits for both employers
and employees. The record shows that PPE provision has been a
contentious issue, and that employers and employees are spending an
inordinate amount of time and effort discussing, negotiating, and
generally working out who is to pay for PPE. The rulemaking will put
some of that discussion to rest by providing clear requirements. As
noted by ASSE ``[a] key issue for ASSE members in improving the
efficiency/effectiveness of safety and health programs is consistency''
(Ex. 12: 110).
For these reasons, OSHA is promulgating this final rule requiring,
with limited exceptions, employer
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payment for PPE used to comply with OSHA standards. (See Section XIV,
``Legal Authority,'' for a more detailed discussion of the
justification for the final rule.)
B. Description of the Final Rule
This rule does not set forth new requirements regarding the PPE
that must be provided and the circumstances in which it must be
provided. The rule merely requires employers to pay for the PPE that is
used to comply with the Parts amended. The rule generally requires
employers to pay for PPE, and sets forth specific exceptions where
employers are not required to pay for such equipment. The final rule
includes the exceptions in the proposed rule, which have been clarified
and simplified; clarifications of OSHA's intent in the proposed rule
regarding everyday clothing and weather-related clothing; and
clarifications regarding employee-owned PPE and replacement PPE that
were raised by various commenters. While these clarifications have
added several paragraphs to the regulatory text, the final rule
provides employees no less protection than that provided by the
proposal.
The first paragraph in the final rule contains the general
requirement that employers must pay for the protective equipment,
including personal protective equipment that is used to comply with the
amended OSHA standards. (See 29 CFR 1910.132(h)(1); 1915.152(f)(1);
1917.96; 1918.106; 1926.95(d)(1)) The provisions that follow the first
paragraph modify this general requirement for employer payment and
include the limited exceptions to the employer-payment rule. Employers
are responsible for paying for the minimum level of PPE required by the
standards. If an employer decides to use upgraded PPE to meet the
requirements, the employer must pay for that PPE. If an employer
provides PPE at no cost, an employee asks to use different PPE, and the
employer decides to allow him or her to do so, then the employer is not
required to pay for the item.
The first exception addresses non-specialty safety-toe protective
footwear and non-specialty prescription safety eyewear. (See 29 CFR
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2))
The regulatory text makes clear that employers are not required to pay
for ordinary safety-toe footwear and ordinary prescription safety
eyewear, so long as the employer allows the employee to wear these
items off the job-site.
The second exception relates to metatarsal protection. (See 29 CFR
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2))
The final rule clarifies that an employer is not required to pay for
shoes with integrated metatarsal protection as long as the employer
provides and pays for metatarsal guards that attach to the shoes.
A third exception to the final rule is located only in the general
industry standard (at 29 CFR 1910.132(h)(4)(i)) and exempts logging
boots from the employer payment requirement. The logging standard does
not require employers to pay for the logging boots required by
1910.266(d)(1)(v), but leaves the responsibility for payment open to
employer and employee negotiation. The final rule makes clear that
logging boots will continue to be excepted from the employer payment
rule.
The fourth exception to employer payment in the final rule relates
to everyday clothing. (See 29 CFR 1910.132(h)(4)(ii);
1915.152(f)(4)(i); 1917.96(d)(1); 1918.106(d)(1); 1926.95(d)(4)(i)) The
final rule recognizes that there are certain circumstances where long-
sleeve shirts, long pants, street shoes, normal work boots, and other
similar types of clothing could serve as PPE. However, where this is
the case, the final rule excepts this everyday clothing from the
employer payment rule. Similarly, employers are not required to pay for
ordinary clothing used solely for protection from weather, such as
winter coats, jackets, gloves, and parkas (See 29 CFR
1910.132(h)(4)(iii); 1915.152(f)(4)(ii); 1917.96(d)(2); 1918.106(d)(2);
1926.95(d)(4)(ii)). In the rare case that ordinary weather gear is not
sufficient to protect the employee, and special equipment or
extraordinary clothing is needed to protect the employee from unusually
severe weather conditions, the employer is required to pay for such
protection. OSHA also notes that clothing used in artificially-
controlled environments with extreme hot or cold temperatures, such as
freezers, are not considered part of the weather gear exception.
The final rule clarifies the issue of who pays for replacement PPE.
The final rule requires that the employer pay for the replacement of
PPE used to comply with OSHA standards. (See 29 CFR 1910.132(h)(5);
1915.152(f)(5); 1917.96(e); 1918.106(e); 1926.95(d)(5)) However, in the
limited circumstances in which an employee has lost or intentionally
damaged the PPE issued to him or her, an employer is not required to
pay for its replacement and may require the employee to pay for such
replacement.
The final rule also clearly addresses the use of employee-owned
PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f);
1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may
wish to use PPE they own, and if their employer allows them to do so,
the employer will not need to reimburse the employees for the PPE.
However, the regulatory text also makes clear that employers cannot
require employees to provide their own PPE or to pay for their own PPE.
The employee's use of PPE they own must be completely voluntary.
The final provision in the rule provides an enforcement deadline of
six months from the date of publication to allow employers time to
change their existing PPE payment policies to accommodate the final
rule. (See 29 CFR 1910.132(h)(7); 1915.152(f)(7); 1917.96(f);
1918.106(f); 1926.95(d)(7)) A note to the final standard also clarifies
that when the provisions of another OSHA standard specify whether or
not the employer must pay for specific equipment, the payment
provisions of that standard will prevail.
Sections V through XI below further describe the final rule and
discuss the comments received during the rulemaking process:
Section V describes the PPE required to be paid for by
employers, and the exceptions to the payment requirement. It also
explains the final rule's treatment of replacement PPE.
Section VI discusses the exception from employer payment
when an employee owns appropriate PPE and asks to use it in place of
the equipment the employer provides.
Section VII discusses the industries affected by the final
rule and how employer payment applies to different employment
situations.
Section VIII describes acceptable means for employers and
employees to comply with the final rule and discusses various payment
mechanisms employers and employees have created to effectuate payment
for PPE.
Sections IX through XI explain the effective date of the
final rule, the effect of the rule on collective bargaining agreements,
and how employer payment provisions in other standards affect the
provisions in the final rule.
V. PPE for Which Employer Payment Is Required
In this section, OSHA will address several key issues, including
the personal protective equipment that employers are required to
provide at no cost to their employees and the protective equipment that
is exempted. OSHA wishes to emphasize that this
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rulemaking does not change existing OSHA requirements as to the types
of PPE that must be provided. Instead, the rule merely stipulates that
the employer must pay for PPE that is required by OSHA standards, with
the exceptions listed.
The items excepted from payment by this rule are:
Non-specialty safety-toe protective footwear (including
steel-toe shoes or steel-toe boots) and non-specialty prescription
safety eyewear, that is allowed by the employer to be worn off the job-
site;
Shoes or boots with built-in metatarsal protection that
the employee has requested to use instead of the employer-provided
detachable metatarsal guards;
Logging boots required by 1910.266(d)(1)(v);
Everyday work clothing; or
Ordinary clothing, skin creams, or other items used solely
for protection from the weather.
This section is particularly important because commenters to the
rulemaking record identified a number of items that they thought would
be subject to the rule and asked the Agency to clarify whether the
final rule would cover the items. Some of these items are: gloves (see,
e.g., Exs. 12: 7, 17, 19, 55, 68, 111, 129, 149, 163, 171, 217, 235),
metatarsal shoes (see, e.g., Exs. 12: 149, 235) , sunglasses (see,
e.g., Exs. 12: 129, 222), goggles (see, e.g., Exs. 12: 111, 163), flame
retardant clothing (see, e.g., Exs. 12: 16, 132, 133, 183, 206, 221,
46: 46), personal apparel (see, e.g., Exs. 12: 10, 16, 28), standard
work apparel (see, e.g., Exs. 12: 55, 129), long-sleeve shirts (see,
e.g., Exs. 12: 210, 222), long pants (see, e.g., Exs. 12: 117, 222),
jeans (see, e.g., Ex. 12: 10), cotton coveralls (see, e.g., Ex. 12:
210), cold weather gear (see, e.g., Exs. 12: 129, 210), non safety-toe
work boots (see, e.g., Ex. 12: 10), hard hats (see, e.g., Exs. 12: 29,
55, 68, 91, 112), aprons (see, e.g., Exs. 12: 111, 163), rain suits
(see, e.g., Exs. 12: 55, 91, 210), back belts (see, e.g., Ex. 12: 111,
163), coveralls (see, e.g., Ex. 12: 111, 129, 163), tool belts (see,
e.g., Ex. 12: 129), and face masks in areas where respirators are not
required (see, e.g., Ex. 12: 109).
While OSHA believes it is setting forth a clear requirement in this
final rule--that employers pay for PPE required by OSHA standards
except for the exceptions listed in the standard--OSHA understands the
request by commenters to provide guidance on the applicability of the
standard to certain pieces of equipment. OSHA does that in this
section. The section is divided into three discussions. First, the
Agency discusses those items that are not PPE or are not required by
OSHA standards and thus not covered by the final rule. Second, the
Agency addresses the exceptions to the general employer payment
requirement in the final rule. And third, OSHA describes other items
the Agency determined needed more extensive discussion, based on the
comments to the record.
A. Items That Are Not Considered To Be PPE or Are Not Required by OSHA
Standards
The final rule clarifies that an employer's obligation to pay for
PPE is limited to PPE that is used to comply with the OSHA standards
amended by this rule, except for the specific listed exceptions. Thus,
if a particular item is not PPE or is not required by OSHA standards,
it is not covered by the final rule.
Many commenters sought clarification as to whether certain items
were PPE and would therefore need to be paid for by employers. These
items included coveralls (See, e.g., Exs. 12: 111, 163, 206; 45: 28);
aprons (See, e.g., Exs. 12: 111, 163, 206); uniforms (See, e.g., Exs.
12: 19, 55. 91); overalls (See, e.g., Ex. 45: 28); standard work
clothing (See, e.g., Exs. 45: 28, 48; 12: 55, 91; 46: 44); and everyday
work gloves (See, e.g., Exs. 12: 6, 7, 22, 55, 68, 91, 109, 111, 129,
163, 171, 172, 173, 189, 206, 212, 221, 222; 45: 13, 28). In a
representative comment, Rowan Companies, Inc. remarked that the
standard should not be ``[a]n ``open checkbook'' to force employers to
provide for common and routine items not necessary for personal
protection.'' This commenter added:
[o]ther items could be considered personal protective equipment by
those wishing to unfairly benefit from this rulemaking * * * by
using overly broad interpretations of the proposed wording, items
such as cotton work gloves, rubber boots, rain suits, and uniforms
could be labeled personal protective equipment (Ex. 12: 55).
A number of electrical contractors raised the issue of tools
required for performing electrical work under the National Fire
Protection Association's NFPA 70E (Standard for Electrical Safety in
the Workplace) voluntary consensus standard, which requires certain
tools to be voltage rated (See, e.g., Exs. 41: 1; 45: 6, 7, 8, 9, 10,
11, 12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 38, 41, 44, 45, 46, 47;
46: 21, 22, 23, 24, 26, 29, 38, 40). Several electric utility firms
noted that ``[s]ome equipment can be considered to be personal tools,
or it may be used for convenience or cleanliness versus protection from
hazards * * *'' (See, e.g., Exs. 12: 107, 114, 150, 201, 206). Dow was
concerned that the rule could be interpreted to mean that employers
would be required to pay for ``[e]ven the most basic work clothes,
hats, ear muffs, sunglasses, long sleeve shirts, pants, socks, etc.''
(Ex. 12: 129).
Under the final rule, employers are not required to pay for items
that are not PPE. This includes some of the items identified by
commenters above. Uniforms, caps, or other clothing worn solely to
identify a person as an employee would not be considered to be PPE
because such items are not being worn for protection from a workplace
hazard. Similarly, items worn to keep employees clean for purposes
unrelated to safety or health are not considered to be PPE. Thus, items
such as denim coveralls, aprons or other apparel, when worn solely to
prevent clothing and/or skin from becoming soiled (unrelated to safety
or health), are not considered to be PPE and employer payment is not
required by this rule.
The same is true for items worn for product or consumer safety or
patient safety and health rather than employee safety and health.
Several hearing participants in the food industry mentioned use of hair
nets and beard nets in their discussion of PPE worn in food processing
plants (Tr. 186-187, 190). To the extent that these items are not used
to comply with machine guarding requirements, but are worn solely to
protect the food product from contamination, this rule does not require
employer payment. Similarly, plastic or rubber gloves worn by food
service employees solely to prevent food contamination during meal
preparation, and surgical masks worn by healthcare personnel solely to
prevent transmitting organisms to patients are not covered by this
rule. Of course, cut-proof gloves used to prevent lacerations will be
covered by the rule, and employer payment is required.
Ordinary hand tools are also not PPE. While some specific and
specialized tools have protective characteristics, such as electrically
insulated ``hot sticks'' used by electric utility employees to handle
live power lines, these tools are not considered to be PPE. They are
more properly viewed as engineering controls that isolate the employee
from the hazard--similar to safe medical devices (e.g., self-sheathing
needles) required under OSHA's Bloodborne Pathogens (BBP) standard--and
thus would not be covered by this final rule. (As an engineering
control method, however, employers must pay for this equipment.)
Numerous commenters noted that many types of equipment or clothing
could be considered PPE and that the
[[Page 64347]]
proposed rule might then require employers to pay for those items. More
specifically, Organization Resource Counselors, Inc. (ORC) stated:
Many companies have long-standing general safety rules or
policies requiring workers to wear types of work clothing or use
items which are not specifically regulated by other OSHA standards,
but which may help workers to avoid workplace injury. Examples are
long sleeved shirts, long-legged pants, and simple work gloves
(fabric or leather). All of these will help prevent abrasions to
skin, but are not specified in any OSHA standard, are not currently
viewed as PPE * * * Similarly, coats, hats, and gloves worn by
employees working outdoors have an employee health enhancement
aspect in that they protect against exposure to the elements * * *
(Ex. 12: 222).
In a similar discussion, Bell Atlantic commented: ``Bell Atlantic
requires its technicians to wear long sleeve shirts and long pants when
climbing utility poles; this PPE protects the employee's skin from
abrasion, irritation, splinters, etc. This clothing is personal in
nature and it is worn off the job; we do not specify what types of long
sleeve shirts and long pants must be worn'' (Ex. 12: 117). The National
Arborist Association (NAA) also was concerned that the proposed rule
would potentially:
[y]ield absurd results such as shifting to employers the cost of
purely personal clothing items which are required to be worn on the
job for a protective function, but which are uniquely personal to
the employee and are ubiquitously worn as much off the job as on the
job--such items as required blue jeans rather than shorts to protect
legs from being scratched from branches; tighter-fitting tee shirts
or pants to prevent clothes from inadvertently becoming caught in a
chain saw being used to cut a branch, or sturdy work boots required
to be worn to provide ankle support and sole protection on rough
terrain (Ex. 12: 10 pp. 2-3).
In response to each of these concerns, OSHA has included language
in the standard to explicitly exclude normal work clothing from the
employer payment requirement. OSHA believes that this reflects the
original intent of the proposal (See Section B below). Thus, if the
protective equipment is used to comply with an OSHA standard, and is
not exempted from payment by this standard, the employer must provide
it at no cost to his or her employees. Otherwise, the employer is not
required to pay for it. For example, hearing protectors are required to
be provided in general industry and construction under the provisions
Sec. 1910.95 and Sec. 1926.101, respectively. Therefore, employers
are required to pay for hearing protection.
On the other hand, dust masks and respirators that an employer
allows employees to use under the voluntary use provisions of the Sec.
1910.134 respiratory protection standard are not required to comply
with an OSHA standard. Because of this, employer payment is not
required.
The NAA also raised the question of whether Section 5(a)(1) of the
OSH Act would require the provision of PPE that would be subject to an
employer payment requirement (Ex. 12: 10, p. 11).\2\ OSHA's PPE
standards at Sec. 1910.132, Sec. 1915.152, Sec. 1917.95, Sec.
1918.105, and Sec. 1926.95, already require employers to determine the
PPE necessary for their work settings. OSHA is not aware of PPE that
would protect against hazards subject to enforcement under the general
duty clause that would not also be identified by such a determination.
If there are any such hazards, then the PPE payment provisions of this
standard would not apply since the provisions apply only to equipment
used to comply with the Parts of OSHA's standards that this rule
amends, not with section 5(a)(1) of the OSH Act.
---------------------------------------------------------------------------
\2\ Section 5(a)(1) is the general duty clause of the Act, which
requires employers to ``furnish to each of his employees employment
and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to his employees'' (29 U.S.C. 654).
---------------------------------------------------------------------------
Although employer payment is not required when an item of PPE is
not used to comply with an OSHA standard, OSHA encourages employers to
pay for this PPE, given the safety benefits OSHA finds will accrue when
employers are responsible for providing and paying for PPE.
B. Exceptions
1. Safety-Toe Protective Footwear and Non-Specialty Prescription Safety
Eyewear
The proposed rule included exemptions for safety-toe protective
footwear, often called steel-toe shoes, and prescription safety
eyewear. The proposal would have placed conditions on these exemptions:
(1) The employer permits such footwear or eyewear to be worn off the
jobsite; (2) the footwear or eyewear is not used at work in a manner
that renders it unsafe for use off the jobsite; and (3) such footwear
or eyewear is not designed for special use on the job (64 FR 15415).
The final rule contains a similar condition; employers are not required
to pay for these items when they are permitted to be worn off the
jobsite.
In the proposed rule, the Agency reasoned that safety-toe
protective footwear should be exempted because it was sized to fit a
particular employee and is not generally worn by other employees due to
size and hygienic concerns; was often worn away from the jobsite; was
readily available in appropriate styles; and was customarily paid for
by employees in some industries (Id. at 15415). OSHA also noted that
the 1994 policy memorandum exempted safety shoes from the employer
payment requirement (Id.). The Agency proposed to exempt prescription
safety eyewear because it also was very personal in nature, could
generally be used by only one employee, and was commonly used away from
work (Id.).
Many commenters supported the proposed exceptions for safety-toe
protective footwear and non-specialty prescription safety eyewear (See,
e.g., Exs. 12: 4, 7, 9, 28, 111, 113, 117, 163, 184, 201). In a
representative comment, BP-Amoco stated:
BP-Amoco concurs with OSHA's approach to this topic in the
proposed rule. These two items are different than other types of
personal protective equipment in that they are individually fitted
and the styling of these items is important to many employees.
Therefore, eyewear and safety shoes should be excluded from a
general requirement for employers to pay for personal protective
equipment. We further agree that the three conditions associated
with this exception are appropriate and should be retained without
modification in the final rule (Ex. 12: 28).
The Voluntary Protection Program Participants Association (VPPPA)
added:
As OSHA has proposed, it is reasonable for employees to pay for
PPE that is used off the job as well as on (i.e. PPE that satisfies
the proposed standard's 3 conditions) and it should be left to the
employees and employer to reach an agreement for the purchase of
this kind of PPE. Some facilities may decide it is in their best
interest--for employee morale or other reasons--to pay for this
equipment, but the decision should be voluntary (Ex. 12: 113).
Other commenters strongly objected to any exceptions, and urged
OSHA to require employers to pay for all types of PPE. Several stated
that PPE is part of the hierarchy of controls, and while OSHA would not
ask an employee to pay for a ventilation system, neither should it
expect the employee to pay for any PPE (See, e.g., Exs. 12: 19, 12:
100, 22A, 23, 25, 26A, 37, 100; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366,
Tr. 463-464).
Some commenters expressed the opinion that the ``personal'' nature
of certain types of PPE was not an appropriate basis for exempting the
PPE from an employer payment requirement (Exs. 19, 23, 24A, 24B; Tr.
278, Tr. 337, Tr. 342).
In addition, there were a number of comments challenging the basis
for
[[Page 64348]]
exempting safety-toe protective footwear and prescription safety
eyewear because employees can and do use them off the job site (see,
e.g., Exs. 22, 24B, 24C; Tr. 198-199, Tr. 264, Tr. 274, Tr. 280, Tr.
356-358, Tr. 372-373). NIOSH, ISEA, and the United Auto Workers (UAW)
argued that off-the-job use of PPE should not relieve employers of
their obligation to pay for PPE and that employers should, in fact,
encourage the use of PPE off the jobsite to promote safe behaviors of
their employees (Exs. 12: 130, 230, 23; Tr. 72-73, Tr. 450, Tr. 598).
After careful consideration of the comments, OSHA has decided to
retain the exceptions for non-specialty safety-toe protective footwear
and non-specialty prescription safety eyewear in the final PPE payment
standard. The Agency believes that these two items have unique
characteristics that continue to warrant exemption from employer
payment.
OSHA believes employers should not have to pay for non-specialty
prescription safety eyewear for several reasons. Prescription safety
eyewear is designed for the use of a single individual. Some of the
employees who require such correction wear contact lenses, thus
allowing them to wear non-prescription safety eyewear. Additionally,
employers would rarely, if ever, be required under an OSHA standard to
provide non-specialty prescription safety eyewear to their employees.
The eye protection standards for each affected industry (Sec.
1910.133, Sec. 1915.153, Sec. 1917.91, Sec. 1918.101, and Sec.
1926.102) allow the employer the option of providing either appropriate
prescription safety eyewear or alternate protection that can fit over
an employee's regular prescription glasses, such as goggles or a face
shield. Each standard specifies that the alternate protection must not
disturb the adjustment or positioning of the spectacles. This
requirement ensures that an employee's vision is not altered by the
safety device, which could create an additional safety concern. While
it is true that non-specialty prescription safety eyewear may be less
cumbersome than items worn over eyeglasses, because non-specialty
prescription safety eyewear is not the only PPE option for achieving
adequate eye protection, and is designed for the use of a single
individual, employers should not be required to pay for this
protection. Therefore, OSHA is retaining the exemption for non-
specialty prescription safety eyewear in the final standard.
(Prescription inserts for full-facepiece respirators and diving helmets
are discussed later.)
Unlike non-specialty prescription safety eyewear, the use of
safety-toe protective footwear is clearly required by OSHA standards
when employees are exposed to hazards that could result in foot
injuries. However, OSHA has historically taken the position that
safety-toe protective footwear has certain attributes that make it
unreasonable to require employers to pay for it in all circumstances,
as further discussed in Section XIV, ``Legal Authority''. Safety
footwear selection is governed by a proper and comfortable fit. It
cannot be easily transferred from one employee to the next. Unlike
other types of safety equipment, the range of sizes of footwear needed
to fit most employees would not normally be kept in stock by an
employer and it would not be reasonable to expect employers to stock
the array and variety of safety-toe footwear necessary to properly and
comfortably fit most individuals.
Furthermore, most employees wearing safety-toe protective footwear
spend the majority of their time working on their feet, and thus such
footwear is particularly difficult to sanitize and reissue to another
employee. Other factors indicate as well that employers should not be
required to pay for safety-toe protective footwear in all
circumstances. Employees who work in non-specialty safety-toe
protective footwear often wear it to and from work, just as employees
who wear dress shoes or other non-safety-toe shoes do. In contrast,
employees who wear specialized footwear such as boots incorporating
metatarsal protection are likely to store this type of safety footwear
at work, or carry it back and forth between work and home instead of
wearing it. As explained in detail in the Legal Authority section, OSHA
does not believe that Congress intended for employers to have to pay
for shoes of this type.
For all of these reasons, OSHA has decided to continue to exempt
non-specialty safety shoes from the employer payment requirement. OSHA,
however, also wants to make clear that this exemption applies only to
non-specialty safety-toe shoes and boots, and not other types of
specialty protective footwear. Any safety footwear that has additional
protection or is more specialized, such as shoes with non-slip soles
used when stripping floors, or steel-toe rubber boots, is subject to
the employer payment requirements of this standard. Put simply, the
exempted footwear provides the protection of an ordinary safety-toe
shoe or boot, while footwear with additional safety attributes beyond
this (e.g., shoes and boots with special soles) fall under the employer
payment requirement. (OSHA also notes that normal work boots are
exempted from employer payment under a different provision of the final
rule, discussed later in this section.)
Finally, the rule essentially retains the conditions for the
exceptions contained in the proposal, although OSHA has tried to
simplify them in the regulatory text. The rule states that the employer
is not required to pay for non-specialty safety-toe protective footwear
(including steel-toe shoes or steel-toe boots) \3\ and non-specialty
prescription eyewear, provided that the employer permits such items to
be worn off the jobsite. The term ``non-specialty'' is used to indicate
that the footwear and eyewear being exempted is not of a type designed
for special use on the job (e.g., rubber steel-toe shoes). This is
consistent with the condition in the proposed rule that the equipment
not be ``designed for special use on the job.'' The final rule also
incorporates the condition from the proposed rule that requires the
employer to pay for PPE that is not permitted to be used off the job.
---------------------------------------------------------------------------
\3\ The parenthetical phrase ``including steel toe shoes or
steel-toe boots'' is included since this terminology is commonly
used in reference to non-specialty safety-toe protective footwear.
---------------------------------------------------------------------------
The proposed regulatory text also contained an employer payment
condition for footwear or eyewear based on whether its use at work
renders it unsafe for use off the jobsite. The Agency is concerned that
this condition could be construed as creating a general requirement
that contaminated equipment remain on-site. While this is a prudent
practice in many instances, and a requirement in some substance-
specific standards, making this a general requirement under the Parts
amended by this rule is outside the scope of this rulemaking. OSHA also
believes that an explicit condition for contaminated equipment is
unnecessary. The final rule, like the proposal, requires employer
payment if the employer does not permit the employee to take that
equipment off the jobsite for any reason. Reasons for not permitting
removal from the jobsite can include a requirement in an OSHA standard
that such equipment not be taken off site because it is contaminated or
an employer policy that contaminated equipment remain in a special area
at the worksite. Because of this, OSHA does not believe it is necessary
to include a separate condition related to contaminated PPE in the
final rule.
[[Page 64349]]
2. Everyday Work Clothing and Weather-Related Items
In the regulatory text of the final rule, OSHA is also specifically
exempting everyday work clothing and ordinary clothing/items used
solely for protection from the weather. OSHA did not intend to cover
these items in the proposed rule. A number of commenters to the
rulemaking record, however, questioned whether these items would be
covered and requested that OSHA clarify its position (See, e.g., Exs.
45: 28, 48; 46: 44; 12: 16, 55, 129). OSHA has determined that
additional clarity was needed in the regulatory text regarding payment
for everyday clothing and ordinary clothing used solely for protection
from weather and has therefore made these exceptions explicit in the
final regulatory text.
As explained in the Legal Authority section, OSHA does not believe
that Congress intended for employers to have to pay for everyday
clothing and ordinary clothing used solely for protection from the
weather. While serving a protective function in certain circumstances,
employees must wear such clothing to work regardless of the hazards
found. OSHA is exercising its discretion through this rulemaking to
exempt jeans, long sleeve shirts, winter coats, etc., from the employer
payment requirement. As stated, this is consistent with OSHA's intent
in the proposal and is also supported by the rulemaking record. A
number of commenters stated that OSHA should exempt these items from
the employer payment requirement (See, e.g., Exs. 12: 10, 16, 28, 55,
117, 129, 210, 222).
Thus, OSHA is not requiring employers to pay for everyday clothing
even though they may require their employees to use such everyday
clothing items such as long pants or long-sleeve shirts, and even
though they may have some protective value. Similarly, employees who
work outdoors (e.g., construction work) will normally have weather-
related gear to protect themselves from the elements. This gear is also
exempt from the employer payment requirement.
3. Logging Boots and Items in Other OSHA Standards
Under the final rule, the employer would not have to pay for
logging boots required in 29 CFR 1910.266(d)(1)(v) (61 FR 15403). In
the final logging standard, OSHA concluded that logging boots should be
exempt from an employer payment. The final standard recognizes this
exemption, as did the proposed rule. While some commenters suggested
the exception should be eliminated, citing the same reasons given above
for eliminating the exception for non-specialty safety-toe protective
footwear, the submitted information has not convinced the Agency that
employer payment for logging boots is necessary. This is particularly
true given the extensive rulemaking record developed in support of the
exemption during the rulemaking for the logging standard.
In addition to the provisions of the final rule clarifying the PPE
that is not subject to the employer payment requirement, OSHA has added
a regulatory note to each of the affected standards to make it clear
that when the provisions of another OSHA standard specify whether or
not the employer must pay for specific equipment, the payment
provisions of that standard shall prevail. This approach provides for
Agency determinations in future rulemakings that certain PPE should be
specifically included or excluded from the PPE payment rule.
Table V-1 provides examples of PPE and other items that an employer
is not required to pay for under the specific exceptions included in
the standard. This table is intended to assist in identifying items
exempt from the employer payment requirement. However, it should not be
construed to be an all-inclusive list.
Table V-1.--Examples of PPE and Other Items Exempted From the Employer
Payment Requirements
------------------------------------------------------------------------
-------------------------------------------------------------------------
Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/
boots).
Non-specialty prescription safety eyewear.
Sunglasses/sunscreen.
Sturdy work shoes.
Lineman's boots.
Ordinary cold weather gear (coats, parkas, cold weather gloves, winter
boots).
Logging boots required under Sec. 1910.266(d)(1)(v).
Ordinary rain gear.
Back belts.
Long sleeve shirts.
Long pants.
Dust mask/respirators used under the voluntary use provisions in Sec.
1910.134.
------------------------------------------------------------------------
C. Other Items Raised in the Rulemaking Record
If a particular item of PPE is used to comply with OSHA standards,
and does not fall under the PPE standard's exceptions, then this PPE
standard requires the employer to provide the item to his or her
employees at no cost to the employees. OSHA solicited comment on
several items in the preamble to the proposed standard, and commenters
raised issues with several other items. The following discussion deals
with each of these items, including prescription eyewear inserts in
respirators, uniquely personalized components of personal protective
equipment, welding PPE, metatarsal foot protection, equipment used by
electric utility employees, and fabric or leather work gloves.
1. Prescription Eyewear Inserts in Respirators
Issue eight of the preamble to the proposed PPE payment standard
asked for comment on specialized respirator inserts, as follows:
Full-facepiece respirators present a unique problem for
employees who need prescription glasses. The temples of the
prescription glasses break the face-to-face piece seal and greatly
reduce the protection afforded by the respirator. Special glasses
and mounts inside the facepiece of the respirator are sometimes used
to provide an adequate seal. Because of this special situation, OSHA
believes that it is appropriate for the employer to provide and pay
for the special-use prescription glasses used inside the respirator
facepiece. Is it common industry practice for employers to pay for
these special glasses? What is the typical cost for providing
``insert-type'' prescription glasses inside full-facepiece
respirators? (64 FR 15416).
OSHA received no substantive adverse comment on employer payment
for this equipment. Commenters offered a number of observations and
recommendations, however, including that the employer should pay for
all components needed to ensure the effectiveness of the PPE (Ex. 12:
134, 190, 218), the eyewear is part of the respirator (12: 134, 218),
and the employer should pay for lenses and hardware, but the employee
should pay for the doctor's exam (Ex. 12: 51). The ISEA noted that
full-facepiece respirator inserts:
[s]hould be supplied and paid for by the employer * * * A full-
facepiece respirator insert costs roughly $50-$100, depending on the
prescription (single, bifocal, etc.), the material (polycarbonate,
etc.), and the fitting-delivery system used (Ex. 12: 230).
Additional comment on respirator inserts was provided by the ASSE,
which stated that: ``[m]ost prescription safety eyewear will fit into a
full-face respirator with the appropriate mounts. We are aware of some
circumstances when an additional specific frame had to be ordered to
work with such a facemask. Most of our members commented that from
their experience, most employers would pay for the additional product
in such a situation'' (Ex. 12: 110). Blais Consulting offered a
somewhat different view, stating that:
[[Page 64350]]
Full face respirators do present a problem with spectacles as
the temples frequently will break the face-to-face piece seal and
greatly reduce the protection afforded by the respirator. * * * I
concur with OSHA that it is appropriate for the employer to provide
and pay for the special-use prescription glasses to use inside the
respirator face piece as the spectacle must be worn to fulfill the
requirements for the 29 CFR 1910.134 Respiratory Protection Standard
and is not of a street-wear type spectacle (Ex. 12: 233).
Dow noted that:
[w]here full face respirators are required to be worn on the job, it
is reasonable for the employer to pay for prescription glasses to be
worn. OSHA allows the use of contact lenses when a full face
respirator is worn. Dow does not believe that this regulation should
be construed to require the employer provide contact lenses for
employees who also happen to wear respirators on the job (Ex. 12:
129).
Corrective eyewear is necessary for the employee to see clearly in
order to safely perform his or her job, yet not all employees who
require vision correction and use full facepiece respirators wear
contact lenses. A major concern with a full facepiece respirator is
that the seal between the employee's face and the respirator must not
leak. If it does, then the respirator will not provide the intended
protection. Therefore, items that pass under the seal, such as the
temple pieces of prescription glasses, break the face to facepiece
seal. If the employee's prescription glasses cannot be fitted into the
respirator without compromising the seal, then there is no alternative.
Special lenses will be needed to protect the employee, and they must be
provided at no cost to that employee. OSHA has determined that when
special-use prescription lenses must be used or mounted inside the
respirator facepiece, employers must pay for the lenses / inserts.
2. Components of Personal Protective Equipment
Issue ten of the preamble to the proposed PPE payment standard
asked for comment on PPE components, such as shoe inserts, head
coverings used under welding helmets and custom prescription lens
inserts worn under a welding helmet or a diving helmet (64 FR 15416).
A number of commenters supported employer payment for components in
some circumstances. Various commenters suggested that employers should
pay because the only function of the component is to protect the
employee from workplace hazards (See, e.g., Exs. 12: 190, 218). The
ISEA remarked that:
[e]mployers have an obligation to properly protect employees from
all occupational hazards. If uniquely personalized components of PPE
are protective in nature-such as winter liners for hardhats-then
employers should pay for them. Employers should pay for custom
prescription lens inserts used under a welding helmet because safety
glasses should be worn when welding. It is not functional to wear
street prescription glasses, a protective goggle and a welding
helmet. All equipment necessary for employees to adequately perform
their jobs should be paid for by the employer (Ex. 12: 230).
The UFCW raised the issue of shoe inserts, remarking that:
Shoe inserts, as personal protective equipment, are a control
method for alleviating the hazard of standing for prolonged periods
of time on hard surfaces. The United Auto Workers, through workplace
surveys, has recently documented the need for shoe inserts for their
members who work in the ``big three'' auto plants and stand all day.
In fact, collective bargaining agreement language requires that the
employer provide inserts, free of charge, to workers who need them.
Anti-fatigue mats are common in retail food stores, and in some
manufacturing plants. These are provided by the employer to address
this hazard, an acknowledgment on the part of the employer that this
hazard does exist. As anti-fatigue mats are provided at no cost to
provide some support and relief of the lower extremities and lower
back, so should shoe inserts. In fact, shoe inserts can be used
where anti-fatigue mats cannot, such as in locations in meat and
poultry plants where they are impractical or a sanitation problem.
Shoe inserts are also more practical for jobs which may require some
walking or moving from one location to another, as the mats are
stationary and do not move with the worker (Ex. 41).
Others stated that the employer should pay up to the basic cost of
the minimum PPE (See, e.g., Ex. 12: 228); the employer should pay if it
is PPE (See, e.g., Ex. 12: 32); and the employer should pay ``[i]f it
cannot stand on its own use'' (Ex. 12: 52).
Still other commenters raised items or situations where they
believed the employee, not the employer, should pay for the equipment.
The reasons behind these comments include: The employee should pay if
the item is personal in nature, such as shoe inserts (Ex. 12: 3); the
employee should pay because this equipment is too personal (Ex. 12:
19); and employers should not be required to pay for equipment that is
personal in nature and goes beyond what is required for employee safety
(Ex. 12: 65). Douglas Battery remarked that:
In a related issue, employers should have the option of electing
not to provide or reimburse employees for PPE which is personal in
nature. An example of ancillary ``equipment'' which is personal in
nature, but not required for safety, would include custom insoles
for safety shoes which are not required in writing by a physician as
a ``reasonable accommodation'' to performing the assigned job (Ex.
12: 3).
The question of when to require employer payment for PPE components
and inserts is not easy to resolve due to their wide variety. However,
the comments of ORC suggest a reasonable solution to the problem. ORC
commented:
The employer should be required to provide and pay for PPE that
is adequate to protect an employee from the workplace hazards
identified. If a personalized component is necessary in order for
the PPE to provide adequate protection, it is not something that is
typically worn or used off the worksite and meets the criteria
proposed [by ORC] for exception of personal items, it should be the
employer's responsibility to provide it and pay for it. However, if
the protection afforded by the PPE is not compromised by not
providing the personalized component, the employer should be under
no obligation to pay for the personalized component (Ex. 12: 222).
OSHA has decided to adopt the basic approach put forward by ORC. If
the component is needed for the PPE to adequately protect the employee
from the workplace hazard the PPE is designed to address, the employer
must pay for it, provided the PPE does not fall within one of the
exceptions listed in the final rule. For example, if prescription
lenses are needed so an employee can wear a diving helmet to do his or
her job, then the prescription lenses must be provided at no cost by
the employer. This approach is the same as that taken in the standard
for prescription lens inserts for full facepiece respirators.
However, if the component is not needed for the PPE to provide
adequate protection, then the employer would not be required to pay for
the component. For example, employers would not be required to pay for
shoe inserts to prevent fatigue because the inserts are not needed for
the PPE to perform as designed. In addition, if the PPE in which the
component is placed is otherwise exempted from the final rule, the
employer is not required to pay for the component. Thus, employers
would not be required to pay for cold weather inserts worn under
raincoats, because raincoats are otherwise exempt from employer
payment.
OSHA also notes that if the component is needed for the PPE to fit
the employee properly, then the employer is required to provide the
item at no cost to the employee. The various general PPE standards
require the employer to provide properly fitting PPE, and if it does
not fit properly it will
[[Page 64351]]
not have the protective value it was designed to provide. Therefore,
payment for items needed to make PPE fit properly is required.
Finally, although it may seem self-evident, personalized components
or add-ons that do not affect safety are not covered by the final
standard. For example, items chosen for aesthetic features (e.g.,
logos, color, style) that have no additional safety purpose do not fall
under the employer payment requirements.
3. Metatarsal Protection
While the non-specialized safety-toe protective footwear that is
exempted from the PPE payment requirements contains a protective device
for the toes, metatarsal protection is designed to protect the top of
the foot from the toes to the ankle over the instep of the foot. This
protection is required by the OSHA standards when there is a potential
for injury to that part of the foot from impact or compression hazards
that could occur, for example, from handling heavy pipes, or similar
activities where loads could drop on or roll over an employee's feet.
Metatarsal protection is available both as an integrated part of the
footwear, and as a guard that can be attached to a shoe or boot to
provide protection.
OSHA did not exempt metatarsal protection from the employer payment
requirement in the proposed rule. In its introductory remarks at the
informal public hearing, OSHA explained that ``* * * the proposed
exception would not apply to metatarsal protection, metatarsal guards
or protective footwear that incorporates metatarsal protection, or
special cut-resistant footwear because these kinds of footwear are not
generally used off the worksite and employers often reissue metatarsal
guards and cut-resistant footwear to subsequent employees'' (Tr. 19-
20).
A number of commenters suggested that metatarsal shoes should be
exempted from the employer payment requirement (See, e.g., Exs. 12: 66,
149, 155, 222, 235). Caterpillar, Inc. offered several reasons why
metatarsal shoes should be exempted, stating:
Virtually all metatarsal shoes with integral guards are personal
in nature and belong to an individual employee. * * * OSHA states a
belief that there is little statutory justification for requiring
employers to pay for personal protective equipment if it is used
away from the workplace and if three proposed conditions are met.
The third condition contains an assumption that if `the footwear has
built-in metatarsal guards as well as safety-toes, it could not be
worn off-site', which is not a valid assumption. Employees do wear
their metatarsal shoes off-site (Ex. 12: 66).
The Specialty Steel Industry of North America (SSINA) remarked:
SSINA member companies are committed to employee safety and
health, and provide and pay for all types of personal protective
equipment (``PPE''). Although SSINA supports the proposed rule in
general, the association is concerned about the absence of a
provision allowing payment terms for metatarsal shoes to be
negotiated through collective bargaining agreements. Because of the
importance of these shoes to specialty steel workers, the payment
terms for this type of protective footwear are generally specified
in collective bargaining agreements negotiated with labor unions.
SSINA believes that the proposed PPE rule prohibits this process
(12: 1498).
Consolidated Edison Company of New York, Inc. asked OSHA to clarify
in the final rule that employers are not required to pay for shoes with
metatarsal protection if the employer offers, free of charge, foot
guards to be worn over regular safety footwear (Ex. 12: 155).
In the final standard, OSHA has decided not to exempt metatarsal
protection from the PPE payment provisions. OSHA disagrees with those
commenters who suggested that metatarsal protection is ubiquitous and
is frequently worn by employees away from the worksite. Several hearing
participants testified that this footwear is not normally worn off site
(Tr. 203; 349; 390-391). Specifically, Jacqueline Nowell of the UFCW
referenced a court decision requiring the employer to pay for
metatarsal support boots. The judge based his finding on testimony that
``99 percent of the employees use their boots exclusively for work''
(Tr. 203). When asked about his experiences with employees wearing
shoes with metatarsal guards off site, William Kojola of the AFL-CIO
testified, ``I'm not aware of any, in my own experience aware of any
circumstance where a worker would actually use that piece of equipment
offsite'' (Tr. 349). Mr. Kajola continued that this was his experience
regardless of whether the guard was built into the footwear or put on
as a separate piece. After considering the comments, OSHA remains
convinced that metatarsal protection is a specialized form of foot
protection. In addition, OSHA has historically not exempted metatarsal
protection from an employer payment requirement.
In the final standard, however, OSHA is making clear that employers
may provide metatarsal guards to their employees to protect against
hazards and are not required to provide metatarsal protection that is
integrated in the shoe. The United Steelworkers Union recommended that
removable metatarsal guards be banned, asserting that ``The removable
metatarsal guard does not provide the needed protection that is
provided by the built-in metatarsal guard that was designed for the
specific shoe that it was attached to.'' (Tr. 378-379).
While OSHA appreciates the comment from the USWU, this rulemaking
is limited to issues of PPE payment, and not the adequacy of certain
types of PPE. OSHA's long-standing policy is that when conditions at
the workplace require metatarsal protection, adequate protection can be
achieved through the proper use of metatarsal guards. If the employer
requires employees to wear metatarsal shoes or boots, the employer is
required to pay for them. However, the final standard stipulates that
when the employer provides metatarsal guards and allows the employee,
at his or her request, to use shoes or boots with built-in metatarsal
protection, the employer is not required to pay for the metatarsal
shoes or boots. In this circumstance, the final standard does not
prohibit employers from contributing to the cost of metatarsal shoes or
boots should they choose to do so. Some employers currently offer their
employees a choice between using a metatarsal guard provided and paid
for by the employer or a metatarsal shoe or boot with some portion of
the cost of the shoe or boot paid for by the employer, essentially
establishing an allowance system. This practice is not prohibited by
the rule, as described in the Acceptable Methods of Payment section
below.
4. Welding Leathers
Issue six of the preamble to the proposed PPE payment standard
requested comment on PPE employers provide to welders to protect them
from welding hazards, such as molten metal. Specifically, the Agency
asked: ``The proposal covers protective equipment and personal
protective equipment used in welding, including protective gloves. Does
welding PPE create any unique problems on the PPE payment issue? Does
the employee usually pay for welding PPE?'' (64 FR 15416).
A number of commenters, many from the shipyard industry,
recommended that OSHA exempt welding PPE from the employer payment
requirement (See, e.g., Exs. 7, 29, 32, 39, 65, 112, 228; 45: 52; 46:
32) indicating that it has been customary for welders in some
industries to provide their own PPE. For example, a representative from
the Shipbuilders Council of America (SCA) stated that:
Tools of the trade for welding operations, such as face shields/
goggles, fire resistant
[[Page 64352]]
shirts/jackets, sleeves and leather gloves have predominantly been
provided by the employee because of the equipment's personal nature.
The industry considers these to be tools of the trade because it is
neither feasible for a different employee to wear the welders'
gloves and leathers each day for hygienic reasons, nor is it
feasible that upon resigning from the position that an employee will
leave the leathers behind to be worn by another individual (Ex. 46:
32).
Other commenters stated that an exception for welding PPE was not
needed (Ex. 12: 9, 17, 32, 134, 172, 190, 191, 218, 233; 45: 27). Shell
Offshore, Inc. stated that ``* * * [a] problem could result if
employees were expected to pay for welding PPE. The problem being that
by requiring employees to pay for PPE may discourage use of PPE, or
result in use of ineffective PPE'' (Ex. 12: 9). The International Union
of Operating Engineers (IUOE) remarked that they ``* * * do not believe
that there are unique problems relating to welding PPE. Workers do not
generally pay for welding PPE. All welding PPE should be supplied by
employers'' (12: 134). The National Association of Home Builders (NAHB)
stated that ``Employers customarily pay for the PPE that is required
for welding, including gloves, aprons, and face shields'' (Ex. 12:
212). Testimony of members of the Maritime Advisory Committee for
Occupational Safety and Health (MACOSH) also indicated that other
maritime employers provide and pay for welding PPE; consequently,
MACOSH declined to make a recommendation to OSHA on whether such PPE
should be exempted from a payment requirement (69 FR 41223).
OSHA has decided not to exempt welding equipment from the employer
payment provisions of the final standard. All of the equipment
mentioned is clearly PPE, and the comments are inconsistent as to
whether or not this equipment has any special qualities that would
warrant an exception. The most common concern is that welders in some
industries have customarily supplied their own personal protective
equipment. OSHA has determined that this is not an adequate basis to
exempt PPE. To the extent that these individuals are independent
contractors and not employees covered by the OSH Act, the standard does
not apply to them. Further, as noted in the employee-owned PPE section
of this preamble, employers may allow employees to bring PPE they
already own to work, and are not required to reimburse the employee for
that PPE. Thus, if a welder voluntarily brings his or her own PPE to
the worksite, and the employer ensures that it is appropriate for the
work to be performed, then the employer is not required to provide the
PPE at no cost to that employee.
5. Non-Specialty Fabric or Leather Work Gloves
Many commenters stated that non-specialty fabric or leather work
gloves should be excepted from the employer payment requirement (See,
e.g., Exs. 12: 6, 7, 17, 19, 29, 55, 68, 91, 109, 111, 112, 129, 163,
171, 172, 183, 217, 221, 222). Southwestern Bell (Ex. 12: 6) agreed
that more specialized gloves should be provided and paid for by the
employer, but stated that ``[w]e feel that everyday work gloves made of
fabric and/or leather do meet those conditions because they can be worn
off the job; they are not used in a manner that renders them unsafe for
work off the job; and they are not designed for special use. Thus, we
consider them to be personal in nature'' (Ex. 12: 6). The NAHB added
that ``Many types of gloves can be used for personal use. Unless it's a
very special glove, such as welding or wire-mesh gloves, these should
be considered as an exception'' (Ex. 12: 212).
The Stevedoring Services of America (SSA) and the National Maritime
Safety Association (NMSA) remarked that regular work gloves meet the
intent of the proposed exemptions because they are purchased by size,
are available in a variety of styles and are frequently worn off the
job (Exs. 12: 17, 172). They also commented that most regular work
gloves cannot be cleaned and sterilized and therefore cannot be worn by
more than one employee (Id.). Specifically they stated that ``[r]egular
work gloves, like safety shoes, certainly meet the intent of the
Secretary's interpretation'' and continued with the reasoning that:
1. Regular work gloves are purchased by size.
2. Regular work gloves are available in a variety of styles.
3. Regular work gloves are frequently worn off the job.
4. It is not feasible that each day an employee wears regular
work gloves that have been worn by another employee.
5. It is not feasible that upon resigning from a position that
an employee leave regular work gloves behind for another employee to
wear.
6. It is almost impossible to clean and sterilize most regular
work gloves that have been previously worn.
7. The cost of issuing regular work gloves on a daily basis to
thousands of dock workers nationwide would be extremely expensive to
the employer (Id.).
The American Trucking Association recommended that OSHA exempt from
employer payment non-specialty gloves that meet the same three
conditions as those proposed for safety-toe shoes. The recommendation
is based on the fact that such PPE is also often allowed to be used
off-site by employees (Ex. 12: 171).
In the final standard, OSHA is requiring employer payment for work
gloves when they are used for protection against workplace hazards.
Thus, when used as PPE--to protect employees from such hazards as
lacerations, abrasions, and chemicals--employers must provide them at
no cost. This is consistent with the position OSHA has taken in the
past with this important form of protection.
Furthermore, OSHA does not believe that gloves are similar to the
other exempted items in the standard. Gloves may be distinguished from
general work shoes and boots. Gloves are normally manufactured in only
a few sizes. While gloves worn for a long period by one employee may
become soiled, abraded, and so forth, they generally are not considered
to be as highly personal in nature or in the same manner as footwear.
Wear patterns of footwear differ between individuals resulting in a fit
that may not conform to another individual's foot or gait. Gloves,
however, can normally be worn by another employee. Finally, as opposed
to work boots and shoes, many forms of gloves can be laundered and
sanitized and used by more than one employee.
6. Electrical PPE
Table 1 of the preamble to the proposal listed a number of PPE
items required by OSHA standards, including flame resistant jackets and
pants (64 FR 15408). As a result, several comments were received
regarding the issue of prohibited clothing in OSHA's power generation
and transmission standard at Sec. 1910.269(l)(6). That standard
specifically requires the employer to ensure that each employee who is
exposed to the hazards of flames or electric arcs does not wear
clothing that, when exposed to flames or electric arcs, could increase
the extent of injury that would be sustained by the employee. It
further notes that clothing made from acetate, nylon, polyester, or
rayon is prohibited unless the employer can demonstrate that the fabric
has been treated to withstand the conditions that may be encountered or
that the clothing is worn in a manner that eliminates the hazard. One
method of meeting the requirements of Sec. 1910.269, but not the only
method, is for employers to require their employees to wear flame
resistant clothing (FR clothing). This clothing is specifically
designed to protect employees exposed to various levels of
[[Page 64353]]
heat energy from sustaining severe burn injuries in areas covered by
the clothing.
A number of comments were received from electric utility employers,
who stated that FR clothing is not PPE (See, e.g., Exs. 12: 107, 114,
133, 150, 183, 201, 206, 221), that OSHA should exclude FR clothing
from employer payment requirements (See, e.g., Exs. 12: 16, 133), and
that requiring employers to pay for FR clothing would conflict with
previous interpretations by OSHA (See, e.g., Exs. 12: 114, 133, 150,
206, 221). In a representative comment, the Edison Electric Institute
(EEI) remarked:
EEI is also concerned that compliance officers may inadvertently
classify the apparel/clothing requirement under Sec. 1910.269(l)(6)
of the Electric Power Generation, Transmission and Distribution
standard as personal protective equipment. Classification of
apparel/clothing as PPE would be inconsistent with OSHA's current
position stated in two interpretation letters. * * * In both of
these interpretation letters it is stated that the apparel standard
is not a PPE requirement. * * * EEI requests that OSHA state in the
preamble of the final standard that the apparel/clothing required
under Sec. 1910.269(l)(6) of the Electric Power Generation,
Transmission and Distribution standard is not personal protective
equipment. This statement would avoid disagreements of
interpretations after the rule is finalized (Ex. 12: 150).
Duke Energy suggested that OSHA ``[c]learly specify that flame
retardant apparel is not considered personal protective equipment''
(Ex. 12: 133).
OSHA's existing clothing requirement in Sec. 1910.269 does not
require employers to protect employees from electric arcs through the
use of flame-resistant clothing. It simply requires that an employee's
clothing do no greater harm. The use of certain heavy-weight natural
fiber materials, such as cotton, is allowed where the employer can
assure that the clothing will not contribute to injury to the employee.
Thus, the clothing requirement in Sec. 1910.269 does not mandate
employers provide any particular type of PPE to their employees and the
payment requirement in this final rule would not apply to clothing
permitted by Sec. 1910.269.
It should be noted that the issue of whether FR clothing should be
required by Sec. 1910.269 is currently being considered by the Agency
in a separate rulemaking to revise the electric power generation,
transmission and distribution standard (70 FR 34822-34980, June 15,
2005). The preamble discussion for the proposed Sec. 1910.269 revision
included a full discussion of FR clothing in the electric utility
industry and asked for specific public comment on this issue (70 FR
34866-34870). If OSHA determines in that rulemaking that FR clothing is
required, it will then become subject to the PPE payment provisions of
this rule, unless the final Sec. 1910.269 and Part 1926 Subpart V
standards specifically exempt FR clothing from employer payment.
Several electrical contracting and power companies also recommended
exemptions for certain pole climbing equipment (See, e.g., 12: 16, 38,
144, 161, 183, 206, 221; 46: 49). For example, the National Electrical
Contractors Association (NECA) commented that
[b]ody belts and straps for climbing poles and towers, climbing
hooks, flame resistant clothing, and personal apparel of all
description and usages should also be exempted from the final rule
for the contracting electric power industry. These vary in design
and material, have always been very much subject to personal
preference and are not universally transferable from employee to
employee'' (Ex. 12: 16).
In response to OSHA's request for comment on how a general
requirement for employer payment for PPE should address the types of
PPE that are typically supplied by the employee, taken from job site to
job site or from employer to employer, (69 FR 41221 (July 8, 2004)), a
number of electrical contractors submitted identical comments
suggesting that several types of electrical safety equipment should be
exempted from employer payment (See, e.g., Exs. 45: 6, 7, 8, 9, 10, 11,
12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 37, 38, 41, 44, 45, 46, 47;
46: 21, 22, 23, 24, 25, 26, 27, 28, 29). They remarked that employers
in general should pay for PPE used by their employees, but recommended
OSHA provide exemptions for the following items:
1. Protective clothing as listed in NFPA 70E Table 130.7 (C)(10)
for all Hazard/Risk Categories 2 and lower.
2. Protective equipment as listed in NFPA 70E Table 130.7 C (10)
for all Hazard/Risk Categories 2 and lower. (Except for the
equipment listed in FR Protective equipment subpart ``e'').
3. Voltage rated gloves required for work in NFPA 70E Hazard/
Risk Categories 2 and lower.
4. Tools the employee is required to purchase, by an agreement
between the employer and the employee, that are required by NFPA
70E, Hazard/Risk Categories 2 and lower, to be voltage
rated.
This particular equipment was included in a table in the National
Fire Protection Association (NFPA) 70E Electrical Safety Code. Table
130.7(C)(9)(a) of the Electrical Safety Code lists equipment that is to
be used when working on various types of electrical systems, which are
classified into four hazard/risk classes. OSHA wants to make clear that
this equipment would only be covered by the final rule in those
instances where it is required by OSHA standards.
The first item noted by these commenters is fire retardant
clothing, as discussed above. The second item includes a variety of
PPE, including hard hats, safety glasses or goggles, arc-rated face
shields, hearing protection, leather gloves, and leather work shoes.
Within the second item, except for leather work shoes, these items are
required by Sec. 1910.335 and other OSHA standards (depending on the
exposures encountered) and are subject to the PPE payment provisions.
Item three includes voltage rated gloves used to handle electrically
charged lines. This is clearly a specialized item that employees are
not required to purchase. As required by Sec. 1910.137, employers must
inspect and test the gloves at regular intervals to ensure their
continued integrity, and they are so critical to the protection of
employees performing this work that leather gloves are worn over them
to prevent abrasions and holes that could compromise their integrity.
Therefore, employers are required to provide them at no cost to their
employees. The fourth item includes insulated hand tools such as
pliers, screwdrivers, diagonal cutters and wire strippers. As discussed
previously, the Agency has concluded that electrically insulated tools,
while not considered to be PPE for the purpose of this standard, are a
protective control measure and the employer must pay for them.
Table V-2 provides examples of PPE items that an employer is
required to provide at no cost to employees under the final PPE payment
standard. As with Table V-1, this table is not an exhaustive list of
PPE that employers must provide to their employees at no cost.
Table V-2.--Examples of PPE for Which Employer Payment Is Required
[If used to comply with an OSHA standard]
------------------------------------------------------------------------
-------------------------------------------------------------------------
Metatarsal foot protection.
Special boots for longshoremen working logs.
Rubber boots with steel toes.
Shoe covers--toe caps and metatarsal guards.
Non-prescription eye protection.
Prescription eyewear inserts/lenses for full face respirators.
Prescription eyewear inserts/lenses for welding and diving helmets.
Goggles.
Face shields.
Laser safety goggles.
Fire fighting PPE (helmet, gloves, boots, proximity suits, full gear).
[[Page 64354]]
Hard hat.
Hearing protection.
Welding PPE.
Items used in medical/laboratory settings to protect from exposure to
infectious agents (Aprons, lab coats, goggles, disposable gloves, shoe
covers, etc).
Non-specialty gloves:
Payment is required if they are PPE, i.e. for protection from
dermatitis, severe cuts/abrasions.
Payment is not required if they are only for keeping clean or
for cold weather (with no safety or health consideration).
Rubber sleeves.
Aluminized gloves.
Chemical resistant gloves/aprons/clothing.
Barrier creams (unless used solely for weather-related protection).
Rubber insulating gloves.
Mesh cut proof gloves, mesh or leather aprons.
SCBA, atmosphere-supplying respirators (escape only).
Respiratory protection.
Fall protection.
Ladder safety device belts.
Climbing ensembles used by linemen (e.g., belts and climbing hooks).
Window cleaners safety straps.
Personal flotation devices (life jacket).
Encapsulating chemical protective suits.
Reflective work vests.
Bump caps.
------------------------------------------------------------------------
D. Replacement PPE
Replacing PPE that is no longer functional is crucial to employee
safety and health. OSHA finds that timely replacement of PPE is more
likely to occur when the employer is responsible for bearing the cost.
OSHA is requiring employers to not only pay for the initial issuance of
PPE, but also its replacement, except when the employee has lost or
intentionally damaged the PPE.
In the proposed rule, OSHA did not include language in the
regulatory text setting forth an employer's obligation to pay for
replacement PPE. However, in the preamble to the proposal OSHA stated:
OSHA intends to require employers to pay for the initial issue
of PPE and for replacement PPE that must be replaced due to normal
wear and tear or occasional loss. Only in the rare case involving an
employee who regularly fails to bring employer-supplied PPE to the
job-site, or who regularly loses the equipment, would the employer
be permitted to require the employee to pay for replacement PPE (64
FR 15414).
OSHA also noted that if an employee misuses or damages the PPE, the
employer may ask the employee to pay for replacement:
The proposed requirement would also make the employer
responsible to provide, and pay for, replacement PPE when the
original PPE wears out from normal wear and tear or in the event of
occasional loss or accidental damage by the employee. However, if an
employee regularly and with unreasonable frequency loses or damages
the PPE, the employer may request that the employee pay for the
replacement PPE (64 FR 15415).
In these discussions, OSHA attempted to set the parameters for when the
employer would be responsible for paying for replacement PPE (e.g.,
when the PPE wears out from ``normal wear and tear,'' ``occasional
loss,'' etc.) and when the employer may request that the employee pay
for the replacement (e.g., ``[r]egularly and with unreasonable
frequency loses or damages the PPE''). This position was also
consistent with the past positions OSHA has taken on the issue of
employer payment for replacement PPE. For example, OSHA determined that
the employer must bear the cost of replacing worn out hearing
protectors required under the occupational noise exposure standard, 29
CFR 1910.95, but stated its belief that employers should not have to
pay for an unlimited supply of protectors or bear the expense in cases
where an employee has been irresponsible (46 FR 4078, 4153-4154 (Jan.
16, 1981)).
While many commenters supported a general requirement that
employers pay for replacement PPE (See, e.g., Exs. 12: 9, 51, 110, 113,
116, 134, 141, 152, 188, 190, 222, 230, 233; Tr. 326, 376, 600, 631),
there were two major issues raised by commenters regarding OSHA's
position in the proposal. First, a substantial number of comments in
the rulemaking record suggested that the proposed rule did not clearly
set forth an employer's obligation to pay for replacement PPE. Many
commenters urged the Agency to more clearly define those instances
where an employer must pay for replacement PPE and those instances
where it would be appropriate for employees to pay for the PPE. Several
commenters suggested OSHA include specific regulatory language to
address replacement PPE to clarify these issues, rather than simply
dealing with the issue in the preamble (See, e.g., Exs. 12: 3, 58, 188,
212; 46: 43). Second, commenters were concerned that OSHA's rule would
prevent them from enforcing legitimate workplace rules regarding
employee misuse and damage to PPE. OSHA addresses these issues below.
OSHA also addresses comments in the record questioning acceptable
replacement schedules and allowances.
1. Clarity
Several commenters raised issues about the clarity of OSHA's
position in the proposed rule on replacement PPE. The majority of the
comments on the issue of employer payment for replacement PPE asked
OSHA to clarify its statements in the proposal as to when employers
would and would not be required to pay for replacement PPE. The
comments received included a number from employers who expressed
concern that they would be paying for an endless stream of PPE. These
commenters noted the uncertainty of determining the meaning of ``normal
wear and tear'' and ``occasional loss'' in the context of the wide
variety of PPE that is required and used in various industries.
A number of commenters suggested that OSHA should strictly define
``regular loss'' or ``occasional loss'' that were used in the preamble
to the proposal, in the final rule by specifying it as two, three, or
four occurrences (See, e.g., Exs. 12: 14, 17, 41, 62, 87, 121, 143,
167, 168, 212, 242). BP-Amoco recommended that ``The particulars of any
case of occasional loss or damage are going to be unique to each case,
and the resolution of who should be responsible to pay is best left up
to the contractual agreement or grievance procedures in place between
the employer and employee group. For OSHA to attempt to regulate this
issue would require OSHA to define what is occasional loss and when
employee conduct becomes negligent--something that is not possible or
desirable'' (Ex. 12: 28).
The Screenprinting & Graphic Imaging Association International
(SGIA) also questioned the meaning of the term ``lost'':
For example, an employee is wearing a pair of gloves while out
on the loading dock as a shipment of ink is delivered. As the
employee reaches for the load coming from the truck, one glove is
pulled from the employee's hand, falls to ground and is blown away
by the wind and cannot be found. In this instance, the PPE was not
damaged, did not show normal wear and tear, yet requires
replacement. The employee was not negligent, but the PPE is lost,
and the employer should be responsible to pay for the replacement.
If the same employee, however, were to have placed the gloves down
on a table, walked off, then came back to find them missing, this
can be seen as neglect and the employee pays for the replacement.
Although these two examples are open for discussion, it shows that
each worksite needs to make specific policies for what will
constitute a lost item, and how to safe guard against abuse and
negligence (Ex. 12-116, p. 2).
[[Page 64355]]
Other commenters expressed concern about the proposed language
addressing the duty to replace PPE that has been lost or damaged beyond
``normal wear and tear.'' For example, ORC, Inc. recommended that:
How an employer deals with replacement of PPE that is lost or
damaged by employees beyond what would be expected through normal
wear and tear, should be left to the employer's discretion'' (Ex.
12: 222).
In a comment that was echoed by approximately 60 associations of
home builders, the Ohio Home Builders Association stated that:
The proposed revision to the PPE standard does not allow
employers much flexibility in how they manage safety and health on
their jobsites. OSHA would require each employer to pay for all PPE
used by employees with very few exceptions. Only in the rare case
involving an employee who regularly fails to bring employer-supplied
PPE to the job-site, or who regularly loses the equipment, would the
employer be permitted to require the employee to pay for replacement
PPE. How are we to define ``regularly'' in these scenarios? (Ex. 12-
34).
Furthermore, a large number of commenters recommended OSHA include
regulatory language in the final rule to clearly articulate when an
employer could require the employee to replace the PPE at his or her
own cost (See, e.g., Exs. 12: 3, 21, 51, 58, 68, 79, 99, 101, 217; 46:
43).
OSHA has carefully considered these comments and has made changes
to the approach in the proposed rule. First, OSHA has added new
regulatory text to address specifically an employer's obligation to pay
for replacement PPE. OSHA believes that because the issue of
replacement PPE was not included in the regulatory text of the proposed
rule, there was confusion amongst employers as to their precise
obligations. By including replacement language in the regulatory text,
OSHA believes that the rule will be clearer for employers and
employees.
Second, in formulating the regulatory text, OSHA determined that
using ``normal wear and tear'' as a benchmark was unhelpful, given the
wide variety of PPE covered by the rule and the wide variety of uses
for the PPE. OSHA was concerned that relying on ``normal wear and
tear'' could result in employers not providing required replacement PPE
at no cost to employees. Furthermore, OSHA determined that the term
``occasional loss'' was vague and could be subject to varying
interpretations. OSHA thus determined that the rule would not rely on
these terms, but would specify when employers are not required to bear
the cost of replacement PPE. Thus, the rule requires employers to pay
for replacement PPE, following the criteria in OSHA's existing
standards governing when PPE must be replaced, except when the employee
loses or intentionally damages the PPE.
By excepting employer payment for all ``lost'' PPE, OSHA hopes to
avoid the confusion caused by using the terms ``occasional loss'' in
the proposal. ``Occasional loss'' lacks reasonable precision given the
universe of circumstances in which a wide variety of PPE may be lost
either at work or off of the worksite. For these reasons, this rule
does not require employers to bear the cost of replacing PPE that the
employee has lost, even if it is a single instance. In addition, the
PPE may be considered ``lost'' if the employee comes to work without
the PPE that has been issued to him or her.
The employer is free to develop and implement workplace rules to
ensure that employees have and use the PPE the employer has provided at
no cost. For example, an employer may require employees to keep their
PPE in a secured locker, or turn in the PPE at the end of the shift.
Alternatively, employers may enter an agreement with the employee
allowing the employee to take the PPE that the employer has provided at
no cost to the employee off of the job site to use at home or for other
employers. The agreement may stipulate that the employee is responsible
for any loss of the PPE while it is off of the job site. The rule does
not prohibit an employer from exercising his or her discretion to
charge an employee for replacement PPE when the employee fails to bring
the PPE back to the workplace.
Furthermore, by setting forth in the regulatory text that employers
can ask employees to pay for replacement PPE needed as a result of an
employee intentionally damaging PPE, OSHA is addressing the concerns of
many commenters that the proposed rule would have required employers to
pay for replacement PPE damaged due to employee misconduct (See, e.g.,
Exs. 12: 21, 44, 58, 68, 79, 101, 152, 154, 165, 172, 182, 203, 210,
212, 228; Tr. 154, 549; 46: 23). OSHA wants to make clear, however,
that the exception only applies when the damage was intentional.
Accidental damage of the PPE by the employee does not qualify for the
exception.
Finally, OSHA emphasizes that the final rule only requires the
employer to pay for PPE that is used to comply with the Parts that the
rule amends. Employers are not required to pay to replace PPE that is
not used to comply with those Parts. Therefore, if the employer is not
required to pay for the initial issue of PPE, the employer is not
required to pay for the replacement of that PPE. However, if the
working conditions have changed such that the PPE the employee had
provided at his or her cost is now required under OSHA requirements,
then the employer is required to pay for the replacement PPE it will
have its employees use to comply with those requirements. When the PPE
the employee already owns is adequate in these circumstances, the
employee volunteers to use the PPE, and the employer allows the
employee to use it in place of the PPE the employer must now provide,
then the employer is not required to reimburse the employee. This is
the same exception provided in the regulatory provision addressing
employee-owned PPE. Similarly, as far as PPE that an employee has
provided at his or her own cost, once that PPE is no longer adequate,
the employer must pay for PPE that is required to comply with the rule,
unless the employee voluntarily decides to provide and pay for his or
her own replacement PPE (which may occur if the employee wants
personalized or upgraded PPE). As with PPE owned by a newly hired
employee, the employer is prohibited from requiring employees to
provide their own PPE. The same replacement issues may arise if an
employee no longer volunteers his or her own PPE for workplace use, and
the same policies apply.
2. Disciplinary Policies
Commenters were also concerned that OSHA's rule would prevent them
from effectuating their reasonable disciplinary policies and infringe
upon legitimate management practices to enforce safety and health rules
at the worksite. Some commenters argued that without employer
disciplinary programs, abuse would occur (See, e.g., Ex 12: 49), and
stated that there were no provisions that would allow employers to
enforce employee accountability (See, e.g., Exs. 12: 31, 34, 68, 95,
167, 172, 212). As ORC, Inc. stated:
How the employer chooses to deal with situations where an
employee has lost or caused damage to required PPE should remain the
decision of the employer. The situation is analogous to that
confronting an employer when an employee fails to follow other
safety and health requirements. There are a number of ways to deal
with the problem, depending on the particular workplace,
circumstances surrounding the particular incident, and the
particular employee involved. It is up to the employer to determine
what works best in his or her establishment (Ex. 12:222).
OSHA does not believe this rule would have that effect and
certainly did
[[Page 64356]]
not intend this rule to have that effect. Therefore, OSHA wishes to
emphasize that the rule does not prohibit employers from fairly and
uniformly enforcing work rules within the context of a system of
reasonable and appropriate disciplinary measures to ensure compliance
with this rule. OSHA recommends that employers use employee
disciplinary programs as part of their overall effort to comply with
OSHA standards and establish effective workplace safety and health
programs. This is therefore also the case when employers are providing
PPE to their employees to protect them from workplace injury and
illness. As the Society of Human Resource Management (SHRM) stated:
``An employer has both the right and the obligation (under the OSH Act)
to use disciplinary procedures to ensure compliance with safety and
health requirements'' (Ex. 46: 43, p. 9).
One aspect of ``reasonable and appropriate'' disciplinary measures
is whether they are proportionate to the employee offense. For example,
docking an employee's pay $100 for losing a $10 reflective vest would
not be allowed as, the penalty is unreasonably disproportionate to the
cost of the PPE. Likewise, requiring an employee to repay the full cost
of a lost PPE item within days of its expected replacement date is not
a fair policy and would not be allowed. Disciplinary systems must be
implemented consistently for all employees, regardless of rank or role.
Disciplinary systems that circumvent the PPE payment requirements and
shift payment to employees when the PPE is not lost or intentionally
damaged will be considered a violation of the standard. Finally,
employers must take precautions to assure that disciplinary systems are
not administered in a manner that infringes upon an employee's rights
under the OSH Act.
The use of disciplinary systems is also recognized by employees as
a valid means for dealing with PPE loss and abuse issues. In discussing
situations where employers require that employees pay for lost
equipment, Jacqueline Nowell, representing the UFCW, stated that
management has full run of the plant and is permitted and capable of
coming up with disciplinary policies (Tr. 216). Similarly, George
Macaluso of the Laborer's Health and Safety Fund stated ``If an
employer has a problem with a particular worker repeatedly losing or
damaging equipment, that's a management or disciplinary issue, not a
matter under OSHA's jurisdiction'' (Tr. 274). Further, Robert Krul of
the Building Construction Trade Department's (BCTD) Safety and Health
Committee, in discussing equipment abuse by employees, stated that
management ``[e]ven has the right under our collective bargaining
agreements in the management's rights clause to instill reasonable and
fair rules, regulations, and disciplines on a job site that govern use
of such equipment.'' Mr. Krul related an incident involving the blatant
abuse of fall protection equipment:
Now there is the odd case of, you know, somebody used as it was
in the case of Roberts Roofing where an employee was seen using a
safety harness to tow a pick up truck. Well, good Lord. I mean,
you're the owner of the company and you see somebody abusing a piece
of safety equipment like that. I'd either fire the guy or make sure
he got his first notice of disciplinary action. What difference does
it make if it's PPE or if it's one of his expensive tools on the
job? If it's abuse of company property, it's abuse of company
property. And that goes to the heart of reasonable, fair discipline,
rules and regulations (Tr. 315-316).
OSHA has always encouraged employers to exercise control over the
conditions at their workplace. OSHA also notes, as discussed in the
preamble to the bloodborne pathogens standard, that disciplinary
programs are not the only alternative employers can use to encourage
employees to follow their PPE policies. Positive reinforcement
approaches, the individual employee's performance evaluation, or
increased education efforts, can also be used by employers to improve
compliance and reduce employee misconduct (56 FR 64129).
OSHA sets forth much of its policy for evaluating the effectiveness
of employers' safety and health programs in its Voluntary Protection
Programs, or VPP. In 1989, OSHA issued voluntary guidelines for safety
and health programs. In several sections of the Federal Register notice
(54 FR 3904-3916) announcing the guidelines, OSHA stressed the need for
effective, fair disciplinary programs. For example, OSHA stated that:
When safe work procedures are the means of protection, ensuring
that they are followed becomes critical. Ensuring safe work
practices involves discipline in both a positive sense and a
corrective sense. Every component of effective safety and health
management is designed to create a disciplined environment in which
all personnel act on the basis that worker safety and health
protection is a fundamental value of the organization. Such an
environment depends on the credibility of management's involvement
in safety and health matters, inclusion of employees in decisions
which affect their safety and health, rigorous worksite analysis to
identify hazards and potential hazards, stringent prevention and
control measures, and thorough training. In such an environment, all
personnel will understand the hazards to which they are exposed, why
the hazards pose a threat, and how to protect themselves and others
from the hazards. Training for the purpose is reinforced by
encouragement of attempts to work safely and by positive recognition
of safe behavior.
If, in such a context, an employee, supervisor, or manager fails
to follow a safe procedure, it is advisable not only to stop the
unsafe action but also to determine whether some condition of the
work has made it difficult to follow the procedure or whether some
management system has failed to communicate the danger of the action
and the means for avoiding it. If the unsafe action was not based on
an external condition or a lack of understanding, or if, after such
external condition or lack of understanding has been corrected, the
person repeats the action, it is essential that corrective
discipline be applied. To allow an unsafe action to continue not
only continues to endanger the actor and perhaps others; it also
undermines the positive discipline of the entire safety and health
program. To be effective, corrective discipline must be applied
consistently to all, regardless of role or rank; but it must be
applied.
In 2000, OSHA issued revisions to the Voluntary Protection Programs
(64 FR 45649-45663), which included the following element of an
effective safety and health program:
c. Hazard Prevention and Control. Site hazards identified during
the hazard analysis process must be eliminated or controlled by
developing and implementing the systems discussed at (2) below and
by using the hierarchy provided at (3) below.
(1) The hazard controls a site chooses to use must be:
(a) Understood and followed by all affected parties;
(b) Appropriate to the hazards of the site;
(c) Equitably enforced through a clearly communicated written
disciplinary system that includes procedures for disciplinary action
or reorientation of managers, supervisors, and non-supervisory
employees who break or disregard safety rules, safe work practices,
proper materials handling, or emergency procedures * * * [sections
(2) and (3) include information on hazard control systems and the
hierarchy of controls].
Further, the VPP policies and procedures manual (CSP 03-01-002 03/25/
2003) advises the OSHA team reviewing a VPP applicant's safety and
health program that:
A documented disciplinary system must be in place. The system
must include enforcement of appropriate action for violations of the
safety and health policies, procedures, and rules. The disciplinary
policy must be clearly communicated and equitably enforced to
employees and management. The disciplinary system for safety and
health can be a sub-part of an all-encompassing disciplinary system.
Thus, employers that do not have reasonable and appropriate safety and
[[Page 64357]]
health disciplinary systems are denied entry into the VPP program. As
these longstanding policies display, OSHA not only allows employers to
have disciplinary programs, the Agency encourages employers to have
such programs and to manage them in a manner that supports occupational
safety and health objectives.
OSHA has emphasized through its enforcement policies that employers
must exercise control over the working conditions at their workplace.
OSHA's Field Inspection Reference Manual (FIRM) CPL 2.103 (Sept. 26,
1994) is OSHA's primary reference document identifying the Agency's
field office inspection responsibilities. It provides OSHA's field
staff, including Compliance Safety and Health Officers (CSHOs) with
direction on the Agency's inspection procedures, documentation
requirements, citation policies, abatement verification procedures, and
other procedures and policies needed to implement an effective and
consistent national enforcement policy while providing needed latitude
for local conditions.
The FIRM specifically recognizes the role of disciplinary programs
that employers use to ensure that their employees follow adequate
workplace safety and health rules. These programs may be used to
establish the unpreventable employee misconduct defense to a citation
issued against the employer for conditions violative of the OSH Act
(CPL 2.103 section 7 ch. III C.8.c.1.).
The Firm explains that ``unpreventable employee misconduct'' is an
``affirmative defense,'' which is defined as ``any matter which, if
established by the employer, will excuse the employer from a violation
which has otherwise been proved by the CSHO.'' In other words, if the
employer can prove each and every element of an affirmative defense to
OSHA, the Agency may decide that a citation is not warranted. The
elements of this defense, as set forth by the Review Commission and the
courts, are that the condition that violated an OSHA standard was also
a violation of the employer's own work rule, that the violation would
not have occurred if the employee had obeyed the employer's work rule,
that the employer's work rule was effectively communicated to the
employee, and the employer's work rule was uniformly enforced by the
employer. OSHA believes that an important aspect of exercising control
over the workplace is the effective training and supervision of
employees.
3. Replacement Schedules and Allowances
Several commenters raised issues related to regular replacement
schedules and allowances used to replace PPE (See, e.g., Exs. 12: 153,
188; 46: 43). The SHRM recommended that employers be allowed to set a
pre-determined service life for PPE, and limit replacement of PPE to
situations that involve normal wear and tear through a pre-determined
length of time, stating that:
Employers that provide PPE should be able to develop rules that
take into account the service life of the PPE. Employers should not
be required to pay for PPE and all replacements, regardless of
whether service life has been met. Misuse and neglect will greatly
shorten the service life of any PPE. Employers often pay for PPE and
HR [human resources] professionals should be allowed to require
employees to pay for their own replacement if such a replacement is
needed prior to expiration of the equipment's service life. The
purpose of such an approach would be to provide an incentive for
employees to take better care of their equipment (Ex. 46: 43, p.
10).
In a similar comment, the Sheet Metal and Air Conditioning
Contractors National Association suggested inserting language requiring
employees to pay for replacement PPE if it has been lost or damaged
``[b]efore it has been used for its minimum anticipated use period, as
determined by the employer and/or manufacturer * * *'' (Tr. 92-93). The
ISEA stated that:
It is important that any item of PPE be replaced immediately
when an inspection reveals that it is damaged or no longer meets its
intended use. Manufacturers provide guidelines to assist in making
this determination. Employers should pay for these replacements
under the same terms as they provide initial issue of PPE. Some
companies provide an annual PPE benefit to employees based on
expected use of PPE under normal conditions. If this amount is
exceeded, employees would have to pay for replacement only if it is
their fault for it being lost or damaged. The employer can, of
course, pay more than this annual amount when circumstances warrant.
Such a system would eliminate abuse of the program (Ex. 12: 230).
OSHA does not object to allowances as a means of paying for PPE, as
long as the allowance policy assures that employees receive replacement
PPE at no cost as required by the final rule. As several commenters
noted, this is a common practice, and it appears that in many cases it
is an effective and convenient method for providing PPE at no cost to
employees.
Allowance systems are based on the expected service life of the
PPE. The Screenprinting and Graphics Imaging Association (SGIA) noted
several factors involved in service life estimation, stating that:
Each worksite and employer would need to include in their PPE
assessment, when and how PPE will be replaced. The employer needs to
find what factors are and/or will be present at the worksite to
cause the normal wear and tear and/or immediate damage to the PPE
specified. Anything outside the guidelines of the established
factors should require the employee to incur the replacement costs.
However, a periodic evaluation of the PPE specified, the PPE
assessment, and the factors regarding replacement, need to be
performed in order to ensure that a reasonable and appropriate
system is always in place (Ex. 11: 116).
OSHA believes that the expected service life for any PPE depends on
several factors, and the manufacturer's recommendation is only one
factor. OSHA believes other factors, such as the working conditions
under which the PPE is used, the probability of workplace incidents
damaging the PPE or making it otherwise unable to protect the employee,
misuse, and any other conditions relevant to the worksite and the use
of the PPE are highly relevant. OSHA does not object to employers
considering expected service life in an allowance system. However, such
systems must ensure that replacement PPE is provided at no cost to
employees. In addition, these employers must have systems in place to
deal with situations where PPE is damaged at work (e.g., accidents) or
lasts for a period shorter than the expected service life due to
conditions other than loss or intentional damage.
Additionally, the Agency wants to be clear that the rule would not
require that the employer provide and pay for replacement PPE whenever
requested by an employee, as was the concern of one commenter (Ex. 46:
43, p. 8). If an employee requests replacement PPE, the employer should
evaluate the PPE in question to determine if, in its present condition,
the PPE provides the protection it was designed to provide. Employees
can be charged for replacement PPE, but only when the PPE is lost or
intentionally damaged by the employee.
OSHA notes that some employers currently convey ownership of PPE to
employees, thus allowing employees to control the use of the PPE both
on and off the job. OSHA's PPE rules require employers to ``provide''
PPE to their employees. OSHA does not require employers to transfer
ownership and control over PPE to employees. Employers are free to
choose that option and others if they so desire. For example, as
pointed out by various commenters, the employer is free to
[[Page 64358]]
prohibit employees from taking employer-owned PPE away from the
workplace and can elect to keep the PPE in question at the
establishment with the use of lockers or other storage mechanisms (Tr.
203, 274, 312-313, 337). The employer may also retain ownership of the
PPE and still allow employees to remove it from the workplace.
In summary, OSHA is requiring employers to pay for the initial
issuance of PPE, as well as its replacement, except when the employee
has lost or intentionally damaged the PPE. Adding regulatory text
addressing the issue of payment for replacement PPE makes an employer's
obligations clear. The rule does not prohibit the employer from using
policies, such as allowances, to fulfill their obligations under the
rule, so long as the policies assure that employees receive replacement
PPE at no cost as required by the final rule. Neither does the rule
prevent employers from fairly and uniformly enforcing work rules to
ensure compliance with this rule. OSHA emphasizes the need for
effective, fair disciplinary programs, as seen in its Voluntary
Protection Programs. OSHA also believes that the rule is consistent
with the duty that employers have with regard to working conditions
because it reserves to them the right to control the use and
maintenance of the PPE that is used at their workplace.
VI. Employee-Owned PPE
The final PPE rule addresses employee-owned PPE in the workplace
and states that, where an employee provides adequate protective
equipment he or she owns, the employer may allow the employee to use it
and is not required to reimburse the employee for it. This is included
in the regulatory text at Sec. 1910.132(h)(6) for general industry,
Sec. 1915.152(f)(6) for shipyard employment, Sec. 1917.96(f) for
longshoring, Sec. 1918.106(f) for marine terminals, and Sec.
1926.95(d)(6) for construction. The final rule also makes clear that
employers shall not require employees to provide or pay for their own
PPE, unless specifically excepted by the other provisions of the rule.
This will prevent employers from avoiding their obligations under the
standard by requiring their employees to purchase PPE as a condition of
employment or placement.
This provision was not specifically included in the proposed rule.
However, OSHA never intended in the proposed rule to prevent employees
from voluntarily using PPE they own, so long as the PPE is adequate to
protect them from hazards. Furthermore, OSHA did not intend for
employers to have to reimburse employees for equipment that they
voluntarily bring to the worksite and wish to use. A number of
commenters to the proposal questioned OSHA's position regarding
equipment owned by employees. This addition to the final rule is a
reaction to these comments and clearly sets forth an employer's
obligations with respect to employee-owned PPE. OSHA explains this
provision and addresses relevant comments below.
A. Employer Responsibility To Ensure ``Adequate Protective Equipment''
It is important at the outset to set forth an employer's existing
obligations under OSHA standards with respect to employee-owned PPE.
OSHA's current general industry standard states, ``[w]here employees
provide their own protective equipment, the employer shall be
responsible to assure its adequacy, including proper maintenance, and
sanitation of such equipment'' (29 CFR Sec. 1910.132(b)). The
construction standards contain similar language in Sec. 1926.95(b).
These provisions ensure that all PPE used by employees has been
evaluated and is adequate to protect the employee from hazards in the
workplace. OSHA will not allow employers to escape their ongoing
responsibility to assure that PPE used at their workplace is ade