[Federal Register: July 8, 2004 (Volume 69, Number 130)]
[Proposed Rules]
[Page 41221-41225]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy04-25]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918 and 1926
[Docket S-042]
RIN 1218-AB77
Employer Payment for Personal Protective Equipment
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Notice of limited reopening of rulemaking record.
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SUMMARY: On March 31, 1999, OSHA issued a proposed rule to require
employers to pay for all personal protective equipment (with a few
specific exceptions) used by their employees. Public comments were
received, hearings were held, and the record was closed on December 13,
1999.
OSHA has been evaluating the rulemaking record and is in the
process of reaching a final determination on the proposal. While
analyzing the issues raised in the original proposal and the evidence
in the record relating to these issues, OSHA has determined that one
issue needs further public comment. Specifically, the issue relates to
whether or how a general requirement for employer payment for personal
protective equipment (PPE), should address types of PPE that are
typically supplied by the employee, taken from job site to job site or
from employer to employer, and considered to be ``tools of the trade.''
In light of the significant comments in the record, OSHA believes
that further information is necessary to fully explore the issues
concerning a possible limited exception for paying for PPE that is
considered to be a ``tool of the trade''. In particular, OSHA is
seeking comments that could potentially lead to agreed-upon criteria
establishing what constitutes a ``tool of the trade'' for purposes of
employer payment. As discussed earlier, moving from job-to-job may be
one consideration, as may be the personal nature of certain PPE. This
notice therefore reopens the record for a limited period of time for
further public comment on this issue. The notice discusses the evidence
currently in the record on this issue and presents a series of
questions to assist the public in providing further information that
would be helpful to OSHA.
DATES: Comments must be postmarked no later than August 23, 2004.
ADDRESSES: You may submit comments, identified by Docket S-042, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
OSHA Web site: http://dockets.osha.gov. Follow the
instructions for submitting comments. Information such as studies and
journal articles cannot be attached to electronic submissions and must
be submitted in duplicate to the address listed below. Such attachments
must clearly identify the respondent's electronic submission by name,
date, and subject, so that they can be attached to the correct
submission.
[[Page 41222]]
Fax: 202-693-1648. Comments must be limited to 10 pages or
fewer and the original and one copy of the comment must be sent to the
Docket Office immediately thereafter at the address below.
Mail: Send two copies of your comments to Docket Office,
Room N2625, Occupational Safety and Health Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
Hand Delivery/Courier: Deliver two copies of your comments
to Docket Office, Room N2625, Occupational Safety and Health
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210. Please contact the OSHA Docket Office at (202)
693-2350 for information about security procedures concerning the
delivery of materials by express delivery, hand delivery, and messenger
service. The hours of operation for the OSHA Docket Office and
Department of Labor are 8:15 a.m. to 4:45 p.m., e.s.t.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
http://dockets.osha.gov, including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://dockets.osha.gov, or the Docket Office,
Room N2625, Occupational Safety and Health Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, telephone 202-693-2350.
FOR FURTHER INFORMATION CONTACT: George Shaw, Acting Director, Office
of Communications, Occupational Safety and Health Administration, Room
N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone (202) 693-1999, FAX (202) 693-1635.
SUPPLEMENTARY INFORMATION: 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 are codified in Part 1910
(General Industry standards), Part 1915 (Shipyard standards), Part 1917
(Marine Terminal standards), Part 1918 (Longshoring standards), and
Part 1926 (Construction standards), of Title 29 of the Code of Federal
Regulations. These requirements address PPE of many kinds, including
hard hats, gloves, goggles, safety shoes, safety glasses, welding
helmets and goggles, faceshields, chemical protective equipment and
clothing, fall protection equipment, and so forth.
The provisions in OSHA standards that require PPE usually state
that the employer is to provide or ensure the use of such PPE. Some of
these provisions specify that the employer is to provide such PPE at no
cost to the employee, some suggest that the PPE is owned by the
employee, while other provisions are silent as to who is obligated to
pay for this equipment.
On March 31, 1999, OSHA issued a proposed rule to require employers
to pay for all personal protective equipment (with a few specific
exceptions) used by their employees (64 FR 15401). Public comments were
received, hearings were held, and the record was closed on December 13,
1999.
OSHA's proposal reviewed the background of the question of who
should pay for personal protective equipment under OSHA standards. A
brief summary of this background follows.
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 shoes, and
protective gloves. In addition to the great variety of protective
equipment, there are many situations in which PPE is necessary to
protect employees from hazards. For example, protective gloves can
protect hands from lacerations, burns, absorption of toxic chemicals,
and abrasion. Safety shoes protect an employee's feet from being
crushed by falling objects. Respirators can protect employees from
being over-exposed to toxic substances.
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,
for example, 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), which requires respiratory protection for workers
exposed to cadmium above the permissible exposure limit.
Some OSHA PPE 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 1977 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, for example, OSHA's inorganic arsenic standard issued in
1978 at 29 CFR 1910.1018(h)(2) (i) and (j), and the respiratory
protection standard, issued January 8, 1998 (29 CFR 1910.134). 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, for example, the logging standard at 29 CFR
1910.266(d)(1)(iii) and (iv).
On the other hand, certain PPE provisions quite clearly do not
require the employer to pay for the protective equipment. Thus, the
same logging standard that requires the employer to pay for many types
of PPE makes an exception for certain types of logging boots (see 29
CFR 1910.266(d)(1)(v)). In the case of foot protection, such as logging
boots, paragraph (d)(1)(v) of that standard leaves the issue of who
pays for some kinds of logging boots open for negotiation and agreement
between the employer and employee.
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 question of who pays for OSHA required PPE has been subject to
varying interpretation and application by employers, OSHA, the Review
Commission and the Courts.
OSHA attempted to establish a policy and clarify 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 indicated that where PPE is very personal in
nature and usable by the worker off the job, such as is often the case
with steel-toe safety shoes (but not metatarsal foot
[[Page 41223]]
protection), the issue of payment may be left to labor-management
negotiations. This memorandum was intended to clarify the Agency's
policy with regard to payment for required PPE.
However, the Occupational Safety and Health Review Commission
declined to accept the interpretation embodied in the 1994 memorandum
as it applied to Sec. 1910.132(a), OSHA's general PPE standard for
general industry, in Secretary of Labor v. Union Tank Car Co., 18
O.S.H.Cas. (BNA) 1067 (Rev. Comm'n. 1997). In that case, an employer
was issued a citation for failing to pay for metatarsal foot protection
and welding gloves. The 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 were inconsistent with that policy.
To respond to the Commission's Union Tank Car decision and to
clarify when employers are obligated to pay for PPE, OSHA issued the
current proposal. The proposed rule would establish a uniform
requirement that employers pay for all types of PPE required under OSHA
standards, except for safety shoes, 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 implicitly requires employers to pay for PPE that is necessary
for employees to perform their jobs safely. The agency believed that
this interpretation was supported by the statute's intent to make
employers solely responsible for compliance with standards, and by the
undisputed principle that employers must pay for engineering and work
practice controls necessary to achieve safe working conditions. OSHA
tentatively concluded that PPE serves the same purpose as engineering
controls in abating hazards, and should be paid for by employers just
as engineering controls are.
OSHA also 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. On this basis, OSHA tentatively concluded that the proposed rule
was justified as an ancillary requirement of existing PPE standards.
In summary, the proposal provided for employer payment for personal
protective equipment, with certain specific exceptions for safety-toe
protective footwear, prescription safety eyewear and logging boots
required by 29 CFR 1910.266(d)(1)(v). The proposal also raised several
issues on which public comments, views and data were particularly
solicited. Among the issues raised were whether there are additional
types of PPE which should be excepted from the proposed requirement for
employer payment; and whether certain unique circumstances in some
industries, such as high employee turnover, frequent employee movement
from job site to job site or employer to employer, or other conditions
warranted different treatment in the standard.
OSHA has reviewed the evidence in the record in the process of
reaching a final determination on the proposal. OSHA believes that the
record presents one particular issue that needs additional public
comment to help OSHA conclude the proceeding. This issue pertains to
types of personal protective equipment that have been referred to in
the record as ``tools of the trade,'' and how any general requirement
for employer payment for PPE should address such types of PPE.
In brief, the record suggests that just as some employees are
expected to bring their own tools to the job for certain job tasks, and
to pay for their own tools, so too are they expected to bring certain
items of protective gear as part of their ``toolbox.'' This practice of
employees bringing their own protective equipment as part of their
toolbox reflects longstanding practices in some industries, the
uniquely personal nature of this equipment, the economic realities of
certain industries where employees move frequently from job site to job
site and from employer to employer, and the implicit recognition that
the employee may be in a better position to acquire and maintain the
proper protective equipment.
In the preamble to the proposed rule, OSHA described using a
similar rationale to exempt logging boots from employer payment
requirements in the logging standard (64 FR 15413). Briefly, OSHA
believed it appropriate for employees to furnish their own boots since
employees typically took them in moving from one logging establishment
to another, because it was established custom in the logging industry
for employees to pay for their own boots, and because each pair of
boots were sized for only one employee. OSHA believes that these
characteristics might also apply to other types of PPE considered by
many in the record to be ``tools of the trade'' in certain industries.
Accordingly, OSHA is inviting comment on whether and how PPE
regarded as tools of the trade should be included in any requirement
for employer payment for PPE. If the rule contains a specific provision
about ``tools of the trade'', how should such ``tools of the trade'' be
defined? OSHA is interested in obtaining an understanding of the
circumstances or settings in which PPE is considered a tool of the
trade that employees customarily supply themselves and carry with them
from job to job. What are the reasons for treating PPE as ``tools of
the trade'' in these circumstances? What interests do these practices
serve? Should these reasons be considered in determining employers'
obligations under the Occupational Safety and Health Act?
As the following discussion shows, the record at present contains
differing views and incomplete information on what kinds of PPE should
be considered to be ``tools of the trade'', on how payment practices
vary within industry sectors, and on the reasons for these practices.
For example, some testimony in the record indicates that PPE used by
welders is usually considered tools of the trade paid for by employees
in the shipbuilding industry. Anthony Buancore of the Shipbuilders
Council of America (SCA) commented that, in the shipyard industry,
welders' leathers and gloves are considered to be necessary PPE and a
part of an employee's tools of the trade (Tr. 103). William McGill,
representing the International Brotherhood of Electrical Workers also
testified that welders' PPE was not paid for by the company and that
these costs have been the subject of collective bargaining agreements
(Tr. 570). Avondale Industries, Inc., noted that some items of welders'
PPE are worn next to the skin and could absorb perspiration. According
to Avondale, such PPE cannot be used by more than one employee (Ex. 12-
112).
However, it is not clear from the record that this reflects a
common practice throughout the maritime industry. Testimony relating to
a meeting of the Maritime Advisory Committee for Occupational Safety
and Health (MACOSH) indicated that other shipbuilding employers provide
and pay for welding equipment, and that MACOSH declined to provide OSHA
with a recommendation on whether such PPE should be exempted from a
payment requirement (Tr. 132-134).
William Finkler of Union Tank Car company, a manufacturer of rail
cars, testified that
* * * we oppose the proposed standard because to a large degree
it contradicts traditional cost allocations in skilled trades. For
example, professional welders know that welding gloves, leather
aprons and welding helmets are personal ``tools of the trade'' that
[[Page 41224]]
they must provide. And many of them come to work with their own
equipment. (Tr. 144).
In the construction industry, welders who perform temporary duty are
also expected to bring necessary PPE with them, according to testimony
by a representative of the Associated General Contractors (Tr. 652, Ex.
32).
Employers and employer representatives in the electric power
industry maintained that pole climbing equipment including lineman's
belts, gloves, gaffs, hooks, pads and spikes are considered to be tools
of the trade rather than PPE and that linemen customarily purchase the
equipment themselves and take it with them from job to job (Ex. 12-16,
12-38, 12-150, 12-161, 12-183, 12-206, 12-201). Comments to the record
indicated that reasons for this practice include the need to size and
fit the belt to the individual employee, that exchanging such belts
with other employees could increase safety risks, and that linemen's
hook gaffs are typically sharpened to the ``taste'' of the lineman and
are individually adjusted to the lineman's calf length and preference.
(Ex. 12-16, 12-38, 12-144).
David Ayers, Director of Safety for the MYR Group, who provides
contracted electrical services, testified that these factors along with
the use of labor pools and high turnover in the industry make it
necessary for employees to pay for certain kinds of linesmen PPE:
* * * we have a very transient workforce and a lot of high
turnover because of the jobs' completion.
Contractors like the MYR companies draw upon a common labor pool
in each of the geographic areas in which they perform their
projects. * * * A lineman may have as many as four or more different
employers in a year. * * * Today MYR already provides the following
personal protective equipment to each employee whose work assignment
requires it; hard hats, hard hat liners, hard hat straps, safety
glasses, ear protection, full body harness, shock-absorbing lanyard,
primary rubber sleeves and gloves. * * * However, our linemen have
traditionally--and we believe appropriately--purchased their own
lineman's tool belts, pull straps, climber sets * * * certain tools,
and they have purchased their own work shoes and work clothes.
The lineman has his or her own preference in the type of belt
and who manufactures it. The lineman selects the pads and hooks to
his or her liking. Linemen sharpen their hooks to their own
standards. Linemen have their own preferences for a particular brand
of pull strap.
This subject has been the subject of the collective bargaining
process with individual locals of the International Brotherhood of
Electrical Workers across the country. (Tr. 633-637).
However, John Devlin of the Utility Workers' Union of America stated
that climbing gear, belts, and harnesses are usually provided by
employers in the electrical utility industry (Tr. 457-459). He also
testified that, as a welder with an electric utility company, the
employer provided and paid for all PPE except safety shoes (Tr. 447).
The record suggests that there may be other circumstances in which
employees customarily furnish certain items of PPE as tools of the
trade, and that these may be relevant in determining the scope of the
final rule. For example, a representative of a temporary labor company
testified that they hire workers primarily to provide temporary labor
for construction jobs and that employees pay for basic PPE such as hard
hats, safety glasses, and safety shoes (Tr. 546). Bill Golding of Betco
Scaffold Company commented that an ``excessive expense'' would be
incurred to pay for PPE for temporary employees that work on several
job sites (Ex. 12-18). Examples of PPE that the New Mexico Building
Branch, Associated General Contractors believed should be ``part of an
employee's tool chest'' included hard hats, safety shoes, eye and
hearing protection, and ``gloves for specific hazards'' (Ex. 12-109).
Similarly, the National Association of Home Builders commented that
``piece workers are required to provide all of their own equipment for
the job they are performing'', arguing that ``employers do not
typically supply employees with the hammers and other tools.'' (Ex.
33). In written comments, Caterpillar stated that, ``we expect
temporary employees to provide their own common forms of PPE. We may
also expect temporary employees to provide specialized equipment unique
to an unusual job'' (Ex. 12-66). This record suggests that in some
industries that use workers from a labor pool or temporary agency,
employers may expect employees to bring their own PPE suitable for the
job to be performed.
In light of the issues outlined above, OSHA believes that further
information is necessary to fully explore the issues concerning PPE as
``tools of the trade.'' OSHA invites comment on how a final rule
generally requiring employers to pay for PPE should address PPE
considered to be tools of the trade. Specifically, OSHA invites public
comment on the following questions:
1. If OSHA issues a final rule that generally requires employers to
pay for most PPE, should safety equipment considered to be ``tools of
the trade'' be included or excluded from the requirement? On what
basis?
2. Several criteria for treating PPE as a tool of the trade were
identified by rulemaking participants. These included: (1) The PPE was
expected to be used by only one employee for reasons of hygiene or
personal fit, (2) the employee using the PPE typically worked on
multiple job sites or for several employers and brought the PPE with
them to each job site, and (3) the practice of considering PPE to be a
tool of the trade was customary in the industry. Are these reasonable
criteria for considering whether or not to require employer payment for
PPE regarded as a tool of the trade? Are there other criteria that
would justify considering PPE to be a tool of the trade? If so, why?
3. If the rule includes a specific provision for PPE considered to
be tools of the trade, should the rule identify specific types of PPE
that fall into this category, or should the rule generally apply a
broad category of PPE defined to be tools of the trade? How should the
broad category of PPE as tools of the trade be defined so that it is
clear and unambiguous to employers and employees?
4. Should PPE be considered to fall into the category of ``tools of
the trade'' only for specific industry sectors where it has been
customary to consider PPE as tools of the trade? If so, which industry
sectors? How many employees use PPE that is considered to be tools of
the trade? What are their occupations?
5. Should PPE be considered to be tools of the trade only where the
PPE is personal in nature and employees typically work for multiple
employers and/or go from job site to job site?
6. Provide specific examples of safety equipment that employees
typically furnish themselves and carry from job site to job site or
from employer to employer in your industry. What interests does this
practice serve? In such instances, how does the employer ensure that
the PPE is effective and complies with applicable standards? What is
typically the practice when employees fail to bring such PPE to the job
site? Please describe to the best of your knowledge how many employees
wear such PPE in your industry and how often it needs to be replaced.
7. What effect might employee payment for PPE treated as tools of
the trade have on workplace safety and health?
Authority and Signature
John L. Henshaw, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, 200 Constitution Ave.,
NW., Washington, DC 20210, directed the preparation of this notice
under the authority granted by: Sections 4, 6(b), 8(c), and 8(g) of the
Occupational Safety and Health Act of
[[Page 41225]]
1970 (29 U.S.C. 653, 655, 657); section 107 of the Contract Work Hours
and Safety Standards Act (the Construction Safety Act) (40 U.S.C. 333);
section 41, the Longshore and Harbor Worker's Compensation Act (33
U.S.C. 941); Secretary of Labor's Order No. 5-2002 (67 FR 65008); and
29 CFR part 1911.
Signed at Washington, DC, on July 1, 2004.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 04-15525 Filed 7-7-04; 8:45 am]
BILLING CODE 4510-26-P