04-15525. Employer Payment for Personal Protective Equipment

AGENCY:

Occupational Safety and Health Administration (OSHA), U.S. Department of Labor.

ACTION:

Notice of limited reopening of rulemaking record.

SUMMARY:

On March 31, 1999, OSHA issued a proposed rule to require employers to pay for all personal protective equipment (with a few specific exceptions) used by their employees. Public comments were received, hearings were held, and the record was closed on December 13, 1999.

OSHA has been evaluating the rulemaking record and is in the process of reaching a final determination on the proposal. While analyzing the issues raised in the original proposal and the evidence in the record relating to these issues, OSHA has determined that one issue needs further public comment. Specifically, the issue relates to whether or how a general requirement for employer payment for personal protective equipment (PPE), should address types of PPE that are typically supplied by the employee, taken from job site to job site or from employer to employer, and considered to be “tools of the trade.”

In light of the significant comments in the record, OSHA believes that further information is necessary to fully explore the issues concerning a possible limited exception for paying for PPE that is considered to be a “tool of the trade”. In particular, OSHA is seeking comments that could potentially lead to agreed-upon criteria establishing what constitutes a “tool of the trade” for purposes of employer payment. As discussed earlier, moving from job-to-job may be one consideration, as may be the personal nature of certain PPE. This notice therefore reopens the record for a limited period of time for further public comment on this issue. The notice discusses the evidence currently in the record on this issue and presents a series of questions to assist the public in providing further information that would be helpful to OSHA.

DATES:

Comments must be postmarked no later than August 23, 2004.

ADDRESSES:

You may submit comments, identified by Docket S-042, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• OSHA Web site: http://dockets.osha.gov. Follow the instructions for submitting comments. Information such as studies and journal articles cannot be attached to electronic submissions and must be submitted in duplicate to the address listed below. Such attachments must clearly identify the respondent's electronic submission by name, date, and subject, so that they can be attached to the correct submission.
• Fax: [phone]. Comments must be limited to 10 pages or fewer and the original and one copy of the comment must be sent to the Docket Office immediately thereafter at the address below.
• Mail: Send two copies of your comments to Docket Office, Room N2625, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
• Hand Delivery/Courier: Deliver two copies of your comments to Docket Office, Room N2625, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Please contact the OSHA Docket Office at [phone] for information about security procedures concerning the delivery of materials by express delivery, hand delivery, and messenger service. The hours of operation for the OSHA Docket Office and Department of Labor are 8:15 a.m. to 4:45 p.m., e.s.t.

Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://dockets.osha.gov,, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://dockets.osha.gov,, or the Docket Office, Room N2625, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone [phone].

FOR FURTHER INFORMATION CONTACT:

George Shaw, Acting Director, Office of Communications, Occupational Safety and Health Administration, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Telephone [phone], FAX [phone].

SUPPLEMENTARY INFORMATION:

Many Occupational Safety and Health Administration (OSHA) health, safety, maritime, and construction standards require employers to provide their employees with protective equipment, including personal protective equipment (PPE), when such equipment is necessary to protect employees from job-related injuries, illnesses, and fatalities. These requirements are codified in Part 1910 (General Industry standards), Part 1915 (Shipyard standards), Part 1917 (Marine Terminal standards), Part 1918 (Longshoring standards), and Part 1926 (Construction standards), of Title 29 of the Code of Federal Regulations. These requirements address PPE of many kinds, including hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, faceshields, chemical protective equipment and clothing, fall protection equipment, and so forth.

The provisions in OSHA standards that require PPE usually state that the employer is to provide or ensure the use of such PPE. Some of these provisions specify that the employer is to provide such PPE at no cost to the employee, some suggest that the PPE is owned by the employee, while other provisions are silent as to who is obligated to pay for this equipment.

On March 31, 1999, OSHA issued a proposed rule to require employers to pay for all personal protective equipment (with a few specific exceptions) used by their employees (64 FR 15401). Public comments were received, hearings were held, and the record was closed on December 13, 1999.

OSHA's proposal reviewed the background of the question of who should pay for personal protective equipment under OSHA standards. A brief summary of this background follows.

Employees often need to wear protective equipment, including personal protective equipment (PPE), to be protected from injury, illness, and death caused by exposure to workplace hazards. PPE includes many different types of protective equipment that an employee uses or wears, such as fall arrest systems, safety shoes, and protective gloves. In addition to the great variety of protective equipment, there are many situations in which PPE is necessary to protect employees from hazards. For example, protective gloves can protect hands from lacerations, burns, absorption of toxic chemicals, and abrasion. Safety shoes protect an employee's feet from being crushed by falling objects. Respirators can protect employees from being over-exposed to toxic substances.

Many OSHA standards require employers to provide PPE to their employees or to ensure the use of PPE. Some standards indicate in broad performance terms when PPE is to be used, and what is to be used (see, for example, 29 CFR 1910.132). Other provisions are very specific, such as 29 CFR 1910.266(d)(1)(iv), which requires that chain saw operators be provided with protective leggings during specific operations, and 29 CFR 1910.1027(g), which requires respiratory protection for workers exposed to cadmium above the permissible exposure limit.

Some OSHA PPE standards specifically require the employer to pay for PPE. However, most are silent with regard to whether the employer is obligated to pay. OSHA's health standards issued after 1977 have made it clear both in the regulatory text and in the preamble that the employer is responsible for providing necessary PPE at no cost to the employee. See, for example, OSHA's inorganic arsenic standard issued in 1978 at 29 CFR 1910.1018(h)(2) (i) and (j), and the respiratory protection standard, issued January 8, 1998 (29 CFR 1910.134). In addition, the regulatory text and preamble discussion for some safety standards have also been clear that the employer must both provide and pay for PPE. See, for example, the logging standard at 29 CFR 1910.266(d)(1)(iii) and (iv).

On the other hand, certain PPE provisions quite clearly do not require the employer to pay for the protective equipment. Thus, the same logging standard that requires the employer to pay for many types of PPE makes an exception for certain types of logging boots (see 29 CFR 1910.266(d)(1)(v)). In the case of foot protection, such as logging boots, paragraph (d)(1)(v) of that standard leaves the issue of who pays for some kinds of logging boots open for negotiation and agreement between the employer and employee.

For most PPE provisions in OSHA's standards, however, the regulatory text does not explicitly address the issue of payment for personal protective equipment. For example, 29 CFR 1910.132(a) is the general provision requiring employers to provide PPE when necessary to protect employees. This provision states that the PPE must be provided, used, and maintained in a sanitary and reliable condition. It does not state that the employer must pay for it or that it must be provided at no cost to employees.

The question of who pays for OSHA required PPE has been subject to varying interpretation and application by employers, OSHA, the Review Commission and the Courts.

OSHA attempted to establish a policy and clarify the issue of payment for required PPE in a memorandum to its field staff dated October 18, 1994, “Employer Obligation to Pay for Personal Protective Equipment.” OSHA stated that for all PPE standards the employer must both provide, and pay for, the required PPE, except in limited situations. The memorandum indicated that where PPE is very personal in nature and usable by the worker off the job, such as is often the case with steel-toe safety shoes (but not metatarsal foot protection), the issue of payment may be left to labor-management negotiations. This memorandum was intended to clarify the Agency's policy with regard to payment for required PPE.

However, the Occupational Safety and Health Review Commission declined to accept the interpretation embodied in the 1994 memorandum as it applied to Sec. 1910.132(a), OSHA's general PPE standard for general industry, in Secretary of Labor v. Union Tank Car Co., 18 O.S.H.Cas. (BNA) 1067 (Rev. Comm'n. 1997). In that case, an employer was issued a citation for failing to pay for metatarsal foot protection and welding gloves. The Commission vacated the citation, finding that the Secretary had failed to adequately explain the policy outlined in the 1994 memorandum in light of several earlier letters of interpretation from OSHA that were inconsistent with that policy.

To respond to the Commission's Union Tank Car decision and to clarify when employers are obligated to pay for PPE, OSHA issued the current proposal. The proposed rule would establish a uniform requirement that employers pay for all types of PPE required under OSHA standards, except for safety shoes, prescription safety eyewear and logging boots. The proposal cited two main justifications for requiring employers to pay for PPE. First, OSHA preliminarily concluded that the OSH Act implicitly requires employers to pay for PPE that is necessary for employees to perform their jobs safely. The agency believed that this interpretation was supported by the statute's intent to make employers solely responsible for compliance with standards, and by the undisputed principle that employers must pay for engineering and work practice controls necessary to achieve safe working conditions. OSHA tentatively concluded that PPE serves the same purpose as engineering controls in abating hazards, and should be paid for by employers just as engineering controls are.

OSHA also preliminarily concluded that the proposed rule would enhance compliance with existing PPE requirements in several practical ways, thereby significantly reducing the risk of non-use or misuse of PPE. On this basis, OSHA tentatively concluded that the proposed rule was justified as an ancillary requirement of existing PPE standards.

In summary, the proposal provided for employer payment for personal protective equipment, with certain specific exceptions for safety-toe protective footwear, prescription safety eyewear and logging boots required by 29 CFR 1910.266(d)(1)(v). The proposal also raised several issues on which public comments, views and data were particularly solicited. Among the issues raised were whether there are additional types of PPE which should be excepted from the proposed requirement for employer payment; and whether certain unique circumstances in some industries, such as high employee turnover, frequent employee movement from job site to job site or employer to employer, or other conditions warranted different treatment in the standard.

OSHA has reviewed the evidence in the record in the process of reaching a final determination on the proposal. OSHA believes that the record presents one particular issue that needs additional public comment to help OSHA conclude the proceeding. This issue pertains to types of personal protective equipment that have been referred to in the record as “tools of the trade,” and how any general requirement for employer payment for PPE should address such types of PPE.

In brief, the record suggests that just as some employees are expected to bring their own tools to the job for certain job tasks, and to pay for their own tools, so too are they expected to bring certain items of protective gear as part of their “toolbox.” This practice of employees bringing their own protective equipment as part of their toolbox reflects longstanding practices in some industries, the uniquely personal nature of this equipment, the economic realities of certain industries where employees move frequently from job site to job site and from employer to employer, and the implicit recognition that the employee may be in a better position to acquire and maintain the proper protective equipment.

In the preamble to the proposed rule, OSHA described using a similar rationale to exempt logging boots from employer payment requirements in the logging standard (64 FR 15413). Briefly, OSHA believed it appropriate for employees to furnish their own boots since employees typically took them in moving from one logging establishment to another, because it was established custom in the logging industry for employees to pay for their own boots, and because each pair of boots were sized for only one employee. OSHA believes that these characteristics might also apply to other types of PPE considered by many in the record to be “tools of the trade” in certain industries.

Accordingly, OSHA is inviting comment on whether and how PPE regarded as tools of the trade should be included in any requirement for employer payment for PPE. If the rule contains a specific provision about “tools of the trade”, how should such “tools of the trade” be defined? OSHA is interested in obtaining an understanding of the circumstances or settings in which PPE is considered a tool of the trade that employees customarily supply themselves and carry with them from job to job. What are the reasons for treating PPE as “tools of the trade” in these circumstances? What interests do these practices serve? Should these reasons be considered in determining employers' obligations under the Occupational Safety and Health Act?

As the following discussion shows, the record at present contains differing views and incomplete information on what kinds of PPE should be considered to be “tools of the trade”, on how payment practices vary within industry sectors, and on the reasons for these practices. For example, some testimony in the record indicates that PPE used by welders is usually considered tools of the trade paid for by employees in the shipbuilding industry. Anthony Buancore of the Shipbuilders Council of America (SCA) commented that, in the shipyard industry, welders' leathers and gloves are considered to be necessary PPE and a part of an employee's tools of the trade (Tr. 103). William McGill, representing the International Brotherhood of Electrical Workers also testified that welders' PPE was not paid for by the company and that these costs have been the subject of collective bargaining agreements (Tr. 570). Avondale Industries, Inc., noted that some items of welders' PPE are worn next to the skin and could absorb perspiration. According to Avondale, such PPE cannot be used by more than one employee (Ex. 12-112).

However, it is not clear from the record that this reflects a common practice throughout the maritime industry. Testimony relating to a meeting of the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) indicated that other shipbuilding employers provide and pay for welding equipment, and that MACOSH declined to provide OSHA with a recommendation on whether such PPE should be exempted from a payment requirement (Tr. 132-134).

William Finkler of Union Tank Car company, a manufacturer of rail cars, testified that

* * * we oppose the proposed standard because to a large degree it contradicts traditional cost allocations in skilled trades. For example, professional welders know that welding gloves, leather aprons and welding helmets are personal “tools of the trade” that they must provide. And many of them come to work with their own equipment. (Tr. 144).

In the construction industry, welders who perform temporary duty are also expected to bring necessary PPE with them, according to testimony by a representative of the Associated General Contractors (Tr. 652, Ex. 32).

Employers and employer representatives in the electric power industry maintained that pole climbing equipment including lineman's belts, gloves, gaffs, hooks, pads and spikes are considered to be tools of the trade rather than PPE and that linemen customarily purchase the equipment themselves and take it with them from job to job (Ex. 12-16, 12-38, 12-150, 12-161, 12-183, 12-206, 12-201). Comments to the record indicated that reasons for this practice include the need to size and fit the belt to the individual employee, that exchanging such belts with other employees could increase safety risks, and that linemen's hook gaffs are typically sharpened to the “taste” of the lineman and are individually adjusted to the lineman's calf length and preference. (Ex. 12-16, 12-38, 12-144).

David Ayers, Director of Safety for the MYR Group, who provides contracted electrical services, testified that these factors along with the use of labor pools and high turnover in the industry make it necessary for employees to pay for certain kinds of linesmen PPE:

* * * we have a very transient workforce and a lot of high turnover because of the jobs' completion.

Contractors like the MYR companies draw upon a common labor pool in each of the geographic areas in which they perform their projects. * * * A lineman may have as many as four or more different employers in a year. * * * Today MYR already provides the following personal protective equipment to each employee whose work assignment requires it; hard hats, hard hat liners, hard hat straps, safety glasses, ear protection, full body harness, shock-absorbing lanyard, primary rubber sleeves and gloves. * * * However, our linemen have traditionally—and we believe appropriately—purchased their own lineman's tool belts, pull straps, climber sets * * * certain tools, and they have purchased their own work shoes and work clothes.

The lineman has his or her own preference in the type of belt and who manufactures it. The lineman selects the pads and hooks to his or her liking. Linemen sharpen their hooks to their own standards. Linemen have their own preferences for a particular brand of pull strap.

This subject has been the subject of the collective bargaining process with individual locals of the International Brotherhood of Electrical Workers across the country. (Tr. 633-637).

However, John Devlin of the Utility Workers' Union of America stated that climbing gear, belts, and harnesses are usually provided by employers in the electrical utility industry (Tr. 457-459). He also testified that, as a welder with an electric utility company, the employer provided and paid for all PPE except safety shoes (Tr. 447).

The record suggests that there may be other circumstances in which employees customarily furnish certain items of PPE as tools of the trade, and that these may be relevant in determining the scope of the final rule. For example, a representative of a temporary labor company testified that they hire workers primarily to provide temporary labor for construction jobs and that employees pay for basic PPE such as hard hats, safety glasses, and safety shoes (Tr. 546). Bill Golding of Betco Scaffold Company commented that an “excessive expense” would be incurred to pay for PPE for temporary employees that work on several job sites (Ex. 12-18). Examples of PPE that the New Mexico Building Branch, Associated General Contractors believed should be “part of an employee's tool chest” included hard hats, safety shoes, eye and hearing protection, and “gloves for specific hazards” (Ex. 12-109). Similarly, the National Association of Home Builders commented that “piece workers are required to provide all of their own equipment for the job they are performing”, arguing that “employers do not typically supply employees with the hammers and other tools.” (Ex. 33). In written comments, Caterpillar stated that, “we expect temporary employees to provide their own common forms of PPE. We may also expect temporary employees to provide specialized equipment unique to an unusual job” (Ex. 12-66). This record suggests that in some industries that use workers from a labor pool or temporary agency, employers may expect employees to bring their own PPE suitable for the job to be performed.

In light of the issues outlined above, OSHA believes that further information is necessary to fully explore the issues concerning PPE as “tools of the trade.” OSHA invites comment on how a final rule generally requiring employers to pay for PPE should address PPE considered to be tools of the trade. Specifically, OSHA invites public comment on the following questions:

1. If OSHA issues a final rule that generally requires employers to pay for most PPE, should safety equipment considered to be “tools of the trade” be included or excluded from the requirement? On what basis?

2. Several criteria for treating PPE as a tool of the trade were identified by rulemaking participants. These included: (1) The PPE was expected to be used by only one employee for reasons of hygiene or personal fit, (2) the employee using the PPE typically worked on multiple job sites or for several employers and brought the PPE with them to each job site, and (3) the practice of considering PPE to be a tool of the trade was customary in the industry. Are these reasonable criteria for considering whether or not to require employer payment for PPE regarded as a tool of the trade? Are there other criteria that would justify considering PPE to be a tool of the trade? If so, why?

3. If the rule includes a specific provision for PPE considered to be tools of the trade, should the rule identify specific types of PPE that fall into this category, or should the rule generally apply a broad category of PPE defined to be tools of the trade? How should the broad category of PPE as tools of the trade be defined so that it is clear and unambiguous to employers and employees?

4. Should PPE be considered to fall into the category of “tools of the trade” only for specific industry sectors where it has been customary to consider PPE as tools of the trade? If so, which industry sectors? How many employees use PPE that is considered to be tools of the trade? What are their occupations?

5. Should PPE be considered to be tools of the trade only where the PPE is personal in nature and employees typically work for multiple employers and/or go from job site to job site?

6. Provide specific examples of safety equipment that employees typically furnish themselves and carry from job site to job site or from employer to employer in your industry. What interests does this practice serve? In such instances, how does the employer ensure that the PPE is effective and complies with applicable standards? What is typically the practice when employees fail to bring such PPE to the job site? Please describe to the best of your knowledge how many employees wear such PPE in your industry and how often it needs to be replaced.

7. What effect might employee payment for PPE treated as tools of the trade have on workplace safety and health?

Authority and Signature

John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210, directed the preparation of this notice under the authority granted by: Sections 4, 6(b), 8(c), and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act) (40 U.S.C. 333); section 41, the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secretary of Labor's Order No. 5-2002 (67 FR 65008); and 29 CFR part 1911.

Signed at Washington, DC, on July 1, 2004.

John L. Henshaw,

Assistant Secretary of Labor.