# Employer Payment for Personal Protective Equipment

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URL: https://www.frixlaw.com/law-library/documents/fr%3A07-5608

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 15, 2007
- **Citation:** 72 FR 64342

## Text

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.

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

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

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

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.

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 (§ 1910.266), noise (§ 1910.95), lead (§ 1910.1025), asbestos (§ 1910.1001) and bloodborne pathogens (§ 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

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

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

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 § 1910.95 and § 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 § 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 § 1910.132, § 1915.152, § 1917.95, § 1918.105, and § 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

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 (§ 1910.133, § 1915.153, § 1917.91, § 1918.101, and § 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.

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 § 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 § 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:

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

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

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 § 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 § 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

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 § 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 § 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 § 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 § 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 § 1910.269.

It should be noted that the issue of whether FR clothing should be required by § 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 § 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 § 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 § 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 § 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).

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).

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

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A07-5608. Public record. Not legal advice.