[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Rules and Regulations]
[Pages 64342-64430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5608]
[[Page 64341]]
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Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1910, 1915, 1917 et al.
Employer Payment for Personal Protective Equipment; Final Rule
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 /
Rules and Regulations
[[Page 64342]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918 and 1926
[Dockets S-042 (OSHA docket office) and OSHA-S042-2006-0667
(regulations.gov)]
[RIN No. 1218-AB77]
Employer Payment for Personal Protective Equipment
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final Rule.
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SUMMARY: Many Occupational Safety and Health Administration (OSHA)
health, safety, maritime, and construction standards require employers
to provide their employees with protective equipment, including
personal protective equipment (PPE), when such equipment is necessary
to protect employees from job-related injuries, illnesses, and
fatalities. These requirements address PPE of many kinds: hard hats,
gloves, goggles, safety shoes, safety glasses, welding helmets and
goggles, faceshields, chemical protective equipment, fall protection
equipment, and so forth. The provisions in OSHA standards that require
PPE generally state that the employer is to provide such PPE. However,
some of these provisions do not specify that the employer is to provide
such PPE at no cost to the employee. In this rulemaking, OSHA is
requiring employers to pay for the PPE provided, with exceptions for
specific items. The rule does not require employers to provide PPE
where none has been required before. Instead, the rule merely
stipulates that the employer must pay for required PPE, except in the
limited cases specified in the standard.
DATES: This final rule becomes effective on February 13, 2008. The
final rule must be implemented by May 15, 2008.
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor of Labor for Occupational Safety and Health,
Office of the Solicitor of Labor, Room S-4004, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive
petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: Mr. Kevin Ropp, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. The Proposed Rule
IV. Rationale for Requiring PPE Payment and Description of the Final
Rule
V. PPE for Which Employer Payment Is Required
VI. Employee Owned PPE
VII. Industries Affected
VIII. Acceptable Methods of Payment
IX. Effective Dates
X. Effect on Existing Union Contracts
XI. Effect on Other OSHA Standards
XII. Miscellaneous Issues
XIII. Other Alternatives Considered During the Rulemaking Process
XIV. Legal Authority
XV. Final Economic and Regulatory Flexibility Analyses
XVI. Environmental Assessment
XVII. Federalism
XVIII. Unfunded Mandates Reform Act
XIX. OMB Review Under the Paperwork Reduction Act
XX. State Plan Standards
XXI. Authority and Signature
XXII. Regulatory Text
I. Introduction
In 1999, OSHA issued a proposal to require employers to pay for all
protective equipment, including personal protective equipment (PPE),
with explicit exceptions for certain safety shoes, prescription safety
eyewear, and logging boots (64 FR 15402). The proposal cited two
primary reasons for requiring employers to pay for PPE. First, OSHA
preliminarily concluded that the Occupational Safety and Health Act of
1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE
that is necessary to protect the safety and health of employees.
Second, OSHA preliminarily concluded that an across-the-board employer-
payment requirement would result in safety benefits by reducing the
misuse or non-use of PPE (64 FR 15406-07). Following an initial notice
and comment period, an informal rulemaking hearing, a second notice and
comment period on specific issues, and careful Agency deliberation,
OSHA finds that its preliminary conclusions are appropriate and is
therefore issuing this final standard requiring employers to pay for
PPE, with limited exceptions.
II. Background
Employees often need to wear protective equipment, including
personal protective equipment (PPE), to be protected from injury,
illness, and death caused by exposure to workplace hazards. PPE
includes many different types of protective equipment that an employee
uses or wears, such as fall arrest systems, safety-toe shoes, and
protective gloves. Many OSHA standards require employers to provide PPE
to their employees or to ensure the use of PPE. Some standards indicate
in broad performance terms when PPE is to be used, and what is to be
used (See, e.g., 29 CFR 1910.132). Other provisions are very specific,
such as 29 CFR 1910.266(d)(1)(iv), which requires that chain saw
operators be provided with protective leggings during specific
operations, and 29 CFR 1910.1027(g)(1), which requires respiratory
protection for employees exposed to cadmium above a certain permissible
exposure limit (PEL).
Some OSHA standards specifically require the employer to pay for
PPE. However, most are silent with regard to whether the employer is
obligated to pay. OSHA's health standards issued after 1978 have made
it clear both in the regulatory text and in the preamble that the
employer is responsible for providing necessary PPE at no cost to the
employee (See, e.g., OSHA's inorganic arsenic standard, 29 CFR
1910.1018(j)(1) and 43 FR 19584). In addition, the regulatory text and
preamble discussion for some safety standards have also been clear that
the employer must both provide and pay for PPE (See, e.g., the logging
standard, 29 CFR 1910.266(d)(1)(iii) and (iv) and 59 FR 51701).
For most PPE provisions in OSHA's standards, however, the
regulatory text does not explicitly address the issue of payment for
personal protective equipment. For example, 29 CFR 1910.132(a) is the
general provision requiring employers to provide PPE when necessary to
protect employees. This provision states that the PPE must be provided,
used, and maintained in a sanitary and reliable condition. It does not
state that the employer must pay for it or that it must be provided at
no cost to employees. The provisions that are silent on whether the
employer must pay have been subject to varying interpretation and
application by employers, OSHA, the Occupational Safety and Health
Review Commission (Review Commission), and the courts.
In 1994, OSHA established a nationwide policy on the issue of
payment for required PPE in a memorandum to its field staff dated
October 18, 1994, ``Employer Obligation to Pay for Personal Protective
Equipment.'' OSHA stated that for all PPE standards the employer must
both provide, and pay for, the required PPE, except in limited
situations. The memorandum stated that where PPE is very personal in
nature and used by the employee off the job, such as is often the case
with steel-toe safety shoes (but not metatarsal foot protection), the
issue of
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payment may be left to labor-management negotiations.
However, the Review Commission declined to accept the
interpretation embodied in the 1994 memorandum as it applied to 29 CFR
1910.132(a). In Secretary of Labor v. Union Tank Car Co., 18 O.S.H.
Cas. (BNA) 1067 (Rev. Comm. 1997), an employer was issued a citation
for failing to pay for metatarsal foot protection and welding gloves.
The Review Commission vacated the citation, finding that the Secretary
had failed to adequately explain the policy outlined in the 1994
memorandum in light of several earlier letters of interpretation from
OSHA that it read as inconsistent with that policy. In response to the
Union Tank decision, OSHA issued the proposed standard on March 31,
1999 (64 FR 15402-15441).
III. The Proposed Rule
The proposed rule would have established a uniform requirement that
employers pay for all types of PPE required under OSHA standards,
except for certain safety-toe shoes and boots, prescription safety
eyewear, and logging boots. The proposal cited two main justifications
for requiring employers to pay for PPE. First, OSHA preliminarily
concluded that the OSH Act requires employers to pay for PPE that is
necessary for employees to perform their jobs safely. Second, OSHA
preliminarily concluded that the proposed rule would enhance compliance
with existing PPE requirements in several practical ways, thereby
significantly reducing the risk of non-use or misuse of PPE (64 FR
15406-07).
A. Preliminary Statutory Analysis
OSHA advanced three main justifications for preliminarily
interpreting the OSH Act to require employers to pay for virtually all
PPE. As a threshold matter, OSHA cited the statute and legislative
history that Congress intended that employers bear general financial
responsibility for the means necessary to make workplaces safe (64 FR
15404). The Agency believed that this intent was evidenced by the fact
that the statute makes employers solely responsible for compliance with
safety and health standards. The employer's legal responsibility to
ensure compliance implies an obligation to pay for the means necessary
to that end (Id.). OSHA also relied upon statements in the legislative
history demonstrating that lawmakers expected employers to bear the
costs of complying with OSHA standards (Id.).
OSHA further preliminarily concluded that requiring employers to
pay for PPE was a logical extension of the undisputed principle that
employers must pay for engineering controls. The proposal noted that
most standards require employers to install engineering controls, such
as ventilation devices, and to implement administrative measures, such
as establishing specific regulated areas or danger zones, as the
primary means for reducing employee exposure to hazardous conditions.
Since the Agency viewed PPE as another type of hazard control measure
used to protect employees, there was no basis to distinguish PPE from
other hazard controls such as engineering controls and administrative
controls for purposes of cost allocation (64 FR 15408). OSHA also
indicated that requiring employers generally to pay for PPE would be
consistent with the Agency's approach of including explicit
requirements in many health standards that PPE must be provided at no
charge to employees.
B. Safety and Health Benefits
Although OSHA proposed the PPE payment rule primarily to clarify
employers' obligations under its standards that require employers to
provide PPE, the Agency also believed that the revised rules would
improve protections for employees who must wear PPE. OSHA cited a
number of reasons underlying this belief in the preamble to the
proposed rule. First, the Agency believed that employers were more
knowledgeable about hazards existing in the workplace, and were
therefore in the best position to identify and select the correct
equipment and maintain it properly (Id. at 15409). Second, the Agency
believed that employer payment for PPE would reduce the risk of
employees not using or misusing PPE by ensuring that employers maintain
central control over the selection, issuance, and use of PPE (Id.).
Third, OSHA believed that employees would be more likely to cooperate
in achieving full compliance with existing standards if protective
equipment was provided at no charge (Id.). In the Agency's opinion, all
of these considerations together would serve to increase the use and
effectiveness of PPE, and thus reduce the incidence of injuries and
illnesses that are caused by non-use or misuse of PPE.
C. Proposed Exceptions
OSHA proposed to require the employer to pay for all PPE required
by OSHA standards, with explicit exceptions for certain safety-toe
protective footwear and prescription safety eyewear. Safety-toe
protective footwear and prescription safety glasses were excepted from
the employer payment requirement, in large part because these items
were considered to be very personal in nature and were often worn off
the jobsite. The proposal would have allowed the exceptions if they met
the following conditions: (1) The employer permits such footwear or
eyewear to be worn off the jobsite; (2) the footwear or eyewear is not
used at work in a manner that renders it unsafe for use off the job-
site; and (3) such footwear or eyewear is not designed for special use
on the job. In addition, under the proposed revision, the employer
would not have to pay for logging boots required by 29 CFR
1910.266(d)(1)(v) (Id. at 15403).
The limited exceptions to the general payment rule recognized that
there are certain types of PPE that fall outside the scope of the
general statutory requirement for employers to pay for the means of
compliance with OSHA standards. While safety-toe protective shoes and
boots, prescription safety eyewear, and logging boots are necessary to
protect employees, the Agency considered other factors in deciding to
exempt this equipment from the employer payment requirement, including
that the equipment is very personal, is often used outside the
workplace, and that it is taken by employees from jobsite to jobsite
and employer to employer. The Agency stated that there is ``little
statutory justification'' for requiring employers to pay for this type
of PPE (Id. at 15407).
The proposal asked for comment on the exceptions to the general
employer payment requirement. One alternative on which public input was
specifically requested would have excepted any type of PPE that the
employer could demonstrate was personal in nature and customarily used
off the job (Id. at 15416). OSHA also sought comment on whether there
were other specific types of PPE besides safety-toe shoes and boots and
prescription safety eyewear that should be excepted, or whether
employers should pay for all PPE including safety-toe shoes and boots
and prescription safety eyewear (Id.). Finally, the proposal sought
comment on whether the exceptions were appropriate in high-turnover
industries like construction and whether unique issues in the maritime
industry should affect the issue of who pays for PPE (Id.).
On July 8, 2004, OSHA published a notice to re-open the record on
another category of PPE--tools of the trade--that some commenters
suggested should be exempted from an employer payment requirement (69
FR 41221-41225). Specifically, OSHA asked a number of
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questions and solicited comment on whether and how a final rule should
address situations where PPE has been customarily provided by
employees.
The comments received by the Agency during this limited re-opening
are included in the discussion of the rulemaking record below.\1\
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\1\ Comments received in response to the re-opening are
indicated as Exhibits ``45: X'' or ``46: X.'' All other citations
refer to comments and testimony in response to the proposal.
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IV. Rationale for Requiring PPE Payment and Description of the Final
Rule
A. Rationale for Requiring PPE Payment
In this final rule, OSHA is requiring employers to pay for the PPE
used to comply with OSHA standards, with a few exceptions. OSHA is
promulgating the final rule for three primary reasons. First, the rule
effectuates the underlying requirement in the OSH Act that employers
pay for the means necessary to create a safe and healthful work
environment. This includes paying for the requirements in OSHA's safety
and health standards. Second, the rule will reduce work-related
injuries and illnesses. It is thus a legitimate exercise of OSHA's
rulemaking authority to promulgate ancillary provisions in its
standards that are reasonably related to the purposes of the underlying
standards. Third, the rule will create a clear policy across OSHA's
standards, thus reducing confusion among employers and employees
concerning the PPE that employers must provide at no cost to employees.
1. The OSH Act Requires Employer Payment for PPE
OSHA is requiring employers to pay for PPE used to comply with OSHA
standards in order to effectuate the underlying cost allocation scheme
in the OSH Act. The OSH Act requires employers to pay for the means
necessary to create a safe and healthful work environment. Congress
placed this obligation squarely on employers, believing such costs to
be appropriate in order to protect the health and safety of employees.
This final rule does no more than clarify that under the OSH Act
employers are responsible for providing at no cost to their employees
the PPE required by OSHA standards to protect employees from workplace
injury and death.
This policy is consistent with OSHA's past practice in numerous
rulemakings. Since 1978, OSHA has promulgated nearly twenty safety and
health standards that explicitly require employers to furnish PPE at no
cost. For example, the standards for logging (Sec. 1910.266), noise
(Sec. 1910.95), lead (Sec. 1910.1025), asbestos (Sec. 1910.1001) and
bloodborne pathogens (Sec. 1910.1030) require employers to provide
employees with PPE at no cost to employees. In litigation following the
issuance of some of these standards, the courts and the Review
Commission have upheld OSHA's legal authority to require employers to
pay for PPE.
2. The Rule Will Result in Safety Benefits
Separate from effectuating the statutory cost allocation scheme,
this rule will also help prevent injuries and illnesses. OSHA has
carefully reviewed the rulemaking record and finds that requiring
employers to pay for PPE will result in significant safety benefits. As
such, it is a legitimate exercise of OSHA's statutory authority to
promulgate these ancillary provisions in its standards to reduce the
risk of injury and death.
There are three main reasons why the final rule will result in
safety benefits:
When employees are required to pay for their own PPE,
many are likely to avoid PPE costs and thus fail to provide
themselves with adequate protection. OSHA also believes that
employees will be more inclined to use PPE if it is provided to them
at no cost.
Employer payment for PPE will clearly shift overall
responsibility for PPE to employers. When employers take full
responsibility for providing PPE to their employees and paying for
it, they are more likely to make sure that the PPE is correct for
the job, that it is in good condition, and that the employee is
protected.
An employer payment rule will encourage employees to
participate whole-heartedly in an employer's safety and health
program and employer payment for PPE will improve the safety culture
at the worksite.
OSHA's conclusions regarding the safety benefits of the employer
payment rule are supported by the numbers of independent occupational
safety and health experts in the record who stated that employer
payment for PPE will result in safer working conditions. Independent
safety groups that supported the rule and agreed with OSHA's analysis
that it will result in safety benefits include: The American College of
Occupational and Environmental Medicine (ACOEM); the American
Association of Occupational Health Nurses (AAOHN); and the American
Society of Safety Engineers (ASSE). The National Institute for
Occupational Safety and Health (NIOSH), the federal agency with expert
responsibility for occupational safety and health research created by
Congress in the OSH Act, also strongly supported OSHA's conclusions
that an employer payment rule would result in significant safety
benefits.
3. Clarity in PPE Payment Policy
Another benefit of the final PPE payment rule is clarity in OSHA's
policy. While it is true that most employers pay for most PPE most of
the time, the practices for providing PPE are quite diverse. Many
employers pay for some items and not for others, either as a matter of
collective bargaining or long standing tradition. In some cases, costs
are shared between employees and employers. In other workplaces, the
employer pays for more expensive or technologically advanced PPE while
requiring employees to pay for more common items. However, in some
workplaces exactly the opposite is true.
Collective bargaining agreements often contain pages of text
describing PPE provisions, including lists of the items employers will
pay for and those that will be the responsibility of employees. Even
these have little or no consistency. For example, Ms. Nowell of the
United Food and Commercial Workers Union (UFCW) pointed to differences
in PPE payment practices across food processing establishments:
Our contracts show differences across industries, as well as
across companies. We have also found differences between union
plants and those that are non-union. Non-union workers [are] paying
for more of their PPE.
This variation has led to disparate treatment of workers who do
the same jobs, sometimes for the same company, but at different
locations. * * * One of the most inconsistent items, both as to
their requirement and the issue of who pays, is rubber boots, often
steel toed, for production workers. The floors in poultry and meat
plants and other food processing as well * * * are wet, often from
standing water, and slippery from fat and product that invariably
covers the floors (Tr. 184-186).
Improved clarity in OSHA's standards, as well as a more consistent
approach from company to company, will have benefits for both employers
and employees. The record shows that PPE provision has been a
contentious issue, and that employers and employees are spending an
inordinate amount of time and effort discussing, negotiating, and
generally working out who is to pay for PPE. The rulemaking will put
some of that discussion to rest by providing clear requirements. As
noted by ASSE ``[a] key issue for ASSE members in improving the
efficiency/effectiveness of safety and health programs is consistency''
(Ex. 12: 110).
For these reasons, OSHA is promulgating this final rule requiring,
with limited exceptions, employer
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payment for PPE used to comply with OSHA standards. (See Section XIV,
``Legal Authority,'' for a more detailed discussion of the
justification for the final rule.)
B. Description of the Final Rule
This rule does not set forth new requirements regarding the PPE
that must be provided and the circumstances in which it must be
provided. The rule merely requires employers to pay for the PPE that is
used to comply with the Parts amended. The rule generally requires
employers to pay for PPE, and sets forth specific exceptions where
employers are not required to pay for such equipment. The final rule
includes the exceptions in the proposed rule, which have been clarified
and simplified; clarifications of OSHA's intent in the proposed rule
regarding everyday clothing and weather-related clothing; and
clarifications regarding employee-owned PPE and replacement PPE that
were raised by various commenters. While these clarifications have
added several paragraphs to the regulatory text, the final rule
provides employees no less protection than that provided by the
proposal.
The first paragraph in the final rule contains the general
requirement that employers must pay for the protective equipment,
including personal protective equipment that is used to comply with the
amended OSHA standards. (See 29 CFR 1910.132(h)(1); 1915.152(f)(1);
1917.96; 1918.106; 1926.95(d)(1)) The provisions that follow the first
paragraph modify this general requirement for employer payment and
include the limited exceptions to the employer-payment rule. Employers
are responsible for paying for the minimum level of PPE required by the
standards. If an employer decides to use upgraded PPE to meet the
requirements, the employer must pay for that PPE. If an employer
provides PPE at no cost, an employee asks to use different PPE, and the
employer decides to allow him or her to do so, then the employer is not
required to pay for the item.
The first exception addresses non-specialty safety-toe protective
footwear and non-specialty prescription safety eyewear. (See 29 CFR
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2))
The regulatory text makes clear that employers are not required to pay
for ordinary safety-toe footwear and ordinary prescription safety
eyewear, so long as the employer allows the employee to wear these
items off the job-site.
The second exception relates to metatarsal protection. (See 29 CFR
1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2))
The final rule clarifies that an employer is not required to pay for
shoes with integrated metatarsal protection as long as the employer
provides and pays for metatarsal guards that attach to the shoes.
A third exception to the final rule is located only in the general
industry standard (at 29 CFR 1910.132(h)(4)(i)) and exempts logging
boots from the employer payment requirement. The logging standard does
not require employers to pay for the logging boots required by
1910.266(d)(1)(v), but leaves the responsibility for payment open to
employer and employee negotiation. The final rule makes clear that
logging boots will continue to be excepted from the employer payment
rule.
The fourth exception to employer payment in the final rule relates
to everyday clothing. (See 29 CFR 1910.132(h)(4)(ii);
1915.152(f)(4)(i); 1917.96(d)(1); 1918.106(d)(1); 1926.95(d)(4)(i)) The
final rule recognizes that there are certain circumstances where long-
sleeve shirts, long pants, street shoes, normal work boots, and other
similar types of clothing could serve as PPE. However, where this is
the case, the final rule excepts this everyday clothing from the
employer payment rule. Similarly, employers are not required to pay for
ordinary clothing used solely for protection from weather, such as
winter coats, jackets, gloves, and parkas (See 29 CFR
1910.132(h)(4)(iii); 1915.152(f)(4)(ii); 1917.96(d)(2); 1918.106(d)(2);
1926.95(d)(4)(ii)). In the rare case that ordinary weather gear is not
sufficient to protect the employee, and special equipment or
extraordinary clothing is needed to protect the employee from unusually
severe weather conditions, the employer is required to pay for such
protection. OSHA also notes that clothing used in artificially-
controlled environments with extreme hot or cold temperatures, such as
freezers, are not considered part of the weather gear exception.
The final rule clarifies the issue of who pays for replacement PPE.
The final rule requires that the employer pay for the replacement of
PPE used to comply with OSHA standards. (See 29 CFR 1910.132(h)(5);
1915.152(f)(5); 1917.96(e); 1918.106(e); 1926.95(d)(5)) However, in the
limited circumstances in which an employee has lost or intentionally
damaged the PPE issued to him or her, an employer is not required to
pay for its replacement and may require the employee to pay for such
replacement.
The final rule also clearly addresses the use of employee-owned
PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f);
1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may
wish to use PPE they own, and if their employer allows them to do so,
the employer will not need to reimburse the employees for the PPE.
However, the regulatory text also makes clear that employers cannot
require employees to provide their own PPE or to pay for their own PPE.
The employee's use of PPE they own must be completely voluntary.
The final provision in the rule provides an enforcement deadline of
six months from the date of publication to allow employers time to
change their existing PPE payment policies to accommodate the final
rule. (See 29 CFR 1910.132(h)(7); 1915.152(f)(7); 1917.96(f);
1918.106(f); 1926.95(d)(7)) A note to the final standard also clarifies
that when the provisions of another OSHA standard specify whether or
not the employer must pay for specific equipment, the payment
provisions of that standard will prevail.
Sections V through XI below further describe the final rule and
discuss the comments received during the rulemaking process:
Section V describes the PPE required to be paid for by
employers, and the exceptions to the payment requirement. It also
explains the final rule's treatment of replacement PPE.
Section VI discusses the exception from employer payment
when an employee owns appropriate PPE and asks to use it in place of
the equipment the employer provides.
Section VII discusses the industries affected by the final
rule and how employer payment applies to different employment
situations.
Section VIII describes acceptable means for employers and
employees to comply with the final rule and discusses various payment
mechanisms employers and employees have created to effectuate payment
for PPE.
Sections IX through XI explain the effective date of the
final rule, the effect of the rule on collective bargaining agreements,
and how employer payment provisions in other standards affect the
provisions in the final rule.
V. PPE for Which Employer Payment Is Required
In this section, OSHA will address several key issues, including
the personal protective equipment that employers are required to
provide at no cost to their employees and the protective equipment that
is exempted. OSHA wishes to emphasize that this
[[Page 64346]]
rulemaking does not change existing OSHA requirements as to the types
of PPE that must be provided. Instead, the rule merely stipulates that
the employer must pay for PPE that is required by OSHA standards, with
the exceptions listed.
The items excepted from payment by this rule are:
Non-specialty safety-toe protective footwear (including
steel-toe shoes or steel-toe boots) and non-specialty prescription
safety eyewear, that is allowed by the employer to be worn off the job-
site;
Shoes or boots with built-in metatarsal protection that
the employee has requested to use instead of the employer-provided
detachable metatarsal guards;
Logging boots required by 1910.266(d)(1)(v);
Everyday work clothing; or
Ordinary clothing, skin creams, or other items used solely
for protection from the weather.
This section is particularly important because commenters to the
rulemaking record identified a number of items that they thought would
be subject to the rule and asked the Agency to clarify whether the
final rule would cover the items. Some of these items are: gloves (see,
e.g., Exs. 12: 7, 17, 19, 55, 68, 111, 129, 149, 163, 171, 217, 235),
metatarsal shoes (see, e.g., Exs. 12: 149, 235) , sunglasses (see,
e.g., Exs. 12: 129, 222), goggles (see, e.g., Exs. 12: 111, 163), flame
retardant clothing (see, e.g., Exs. 12: 16, 132, 133, 183, 206, 221,
46: 46), personal apparel (see, e.g., Exs. 12: 10, 16, 28), standard
work apparel (see, e.g., Exs. 12: 55, 129), long-sleeve shirts (see,
e.g., Exs. 12: 210, 222), long pants (see, e.g., Exs. 12: 117, 222),
jeans (see, e.g., Ex. 12: 10), cotton coveralls (see, e.g., Ex. 12:
210), cold weather gear (see, e.g., Exs. 12: 129, 210), non safety-toe
work boots (see, e.g., Ex. 12: 10), hard hats (see, e.g., Exs. 12: 29,
55, 68, 91, 112), aprons (see, e.g., Exs. 12: 111, 163), rain suits
(see, e.g., Exs. 12: 55, 91, 210), back belts (see, e.g., Ex. 12: 111,
163), coveralls (see, e.g., Ex. 12: 111, 129, 163), tool belts (see,
e.g., Ex. 12: 129), and face masks in areas where respirators are not
required (see, e.g., Ex. 12: 109).
While OSHA believes it is setting forth a clear requirement in this
final rule--that employers pay for PPE required by OSHA standards
except for the exceptions listed in the standard--OSHA understands the
request by commenters to provide guidance on the applicability of the
standard to certain pieces of equipment. OSHA does that in this
section. The section is divided into three discussions. First, the
Agency discusses those items that are not PPE or are not required by
OSHA standards and thus not covered by the final rule. Second, the
Agency addresses the exceptions to the general employer payment
requirement in the final rule. And third, OSHA describes other items
the Agency determined needed more extensive discussion, based on the
comments to the record.
A. Items That Are Not Considered To Be PPE or Are Not Required by OSHA
Standards
The final rule clarifies that an employer's obligation to pay for
PPE is limited to PPE that is used to comply with the OSHA standards
amended by this rule, except for the specific listed exceptions. Thus,
if a particular item is not PPE or is not required by OSHA standards,
it is not covered by the final rule.
Many commenters sought clarification as to whether certain items
were PPE and would therefore need to be paid for by employers. These
items included coveralls (See, e.g., Exs. 12: 111, 163, 206; 45: 28);
aprons (See, e.g., Exs. 12: 111, 163, 206); uniforms (See, e.g., Exs.
12: 19, 55. 91); overalls (See, e.g., Ex. 45: 28); standard work
clothing (See, e.g., Exs. 45: 28, 48; 12: 55, 91; 46: 44); and everyday
work gloves (See, e.g., Exs. 12: 6, 7, 22, 55, 68, 91, 109, 111, 129,
163, 171, 172, 173, 189, 206, 212, 221, 222; 45: 13, 28). In a
representative comment, Rowan Companies, Inc. remarked that the
standard should not be ``[a]n ``open checkbook'' to force employers to
provide for common and routine items not necessary for personal
protection.'' This commenter added:
[o]ther items could be considered personal protective equipment by
those wishing to unfairly benefit from this rulemaking * * * by
using overly broad interpretations of the proposed wording, items
such as cotton work gloves, rubber boots, rain suits, and uniforms
could be labeled personal protective equipment (Ex. 12: 55).
A number of electrical contractors raised the issue of tools
required for performing electrical work under the National Fire
Protection Association's NFPA 70E (Standard for Electrical Safety in
the Workplace) voluntary consensus standard, which requires certain
tools to be voltage rated (See, e.g., Exs. 41: 1; 45: 6, 7, 8, 9, 10,
11, 12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 38, 41, 44, 45, 46, 47;
46: 21, 22, 23, 24, 26, 29, 38, 40). Several electric utility firms
noted that ``[s]ome equipment can be considered to be personal tools,
or it may be used for convenience or cleanliness versus protection from
hazards * * *'' (See, e.g., Exs. 12: 107, 114, 150, 201, 206). Dow was
concerned that the rule could be interpreted to mean that employers
would be required to pay for ``[e]ven the most basic work clothes,
hats, ear muffs, sunglasses, long sleeve shirts, pants, socks, etc.''
(Ex. 12: 129).
Under the final rule, employers are not required to pay for items
that are not PPE. This includes some of the items identified by
commenters above. Uniforms, caps, or other clothing worn solely to
identify a person as an employee would not be considered to be PPE
because such items are not being worn for protection from a workplace
hazard. Similarly, items worn to keep employees clean for purposes
unrelated to safety or health are not considered to be PPE. Thus, items
such as denim coveralls, aprons or other apparel, when worn solely to
prevent clothing and/or skin from becoming soiled (unrelated to safety
or health), are not considered to be PPE and employer payment is not
required by this rule.
The same is true for items worn for product or consumer safety or
patient safety and health rather than employee safety and health.
Several hearing participants in the food industry mentioned use of hair
nets and beard nets in their discussion of PPE worn in food processing
plants (Tr. 186-187, 190). To the extent that these items are not used
to comply with machine guarding requirements, but are worn solely to
protect the food product from contamination, this rule does not require
employer payment. Similarly, plastic or rubber gloves worn by food
service employees solely to prevent food contamination during meal
preparation, and surgical masks worn by healthcare personnel solely to
prevent transmitting organisms to patients are not covered by this
rule. Of course, cut-proof gloves used to prevent lacerations will be
covered by the rule, and employer payment is required.
Ordinary hand tools are also not PPE. While some specific and
specialized tools have protective characteristics, such as electrically
insulated ``hot sticks'' used by electric utility employees to handle
live power lines, these tools are not considered to be PPE. They are
more properly viewed as engineering controls that isolate the employee
from the hazard--similar to safe medical devices (e.g., self-sheathing
needles) required under OSHA's Bloodborne Pathogens (BBP) standard--and
thus would not be covered by this final rule. (As an engineering
control method, however, employers must pay for this equipment.)
Numerous commenters noted that many types of equipment or clothing
could be considered PPE and that the
[[Page 64347]]
proposed rule might then require employers to pay for those items. More
specifically, Organization Resource Counselors, Inc. (ORC) stated:
Many companies have long-standing general safety rules or
policies requiring workers to wear types of work clothing or use
items which are not specifically regulated by other OSHA standards,
but which may help workers to avoid workplace injury. Examples are
long sleeved shirts, long-legged pants, and simple work gloves
(fabric or leather). All of these will help prevent abrasions to
skin, but are not specified in any OSHA standard, are not currently
viewed as PPE * * * Similarly, coats, hats, and gloves worn by
employees working outdoors have an employee health enhancement
aspect in that they protect against exposure to the elements * * *
(Ex. 12: 222).
In a similar discussion, Bell Atlantic commented: ``Bell Atlantic
requires its technicians to wear long sleeve shirts and long pants when
climbing utility poles; this PPE protects the employee's skin from
abrasion, irritation, splinters, etc. This clothing is personal in
nature and it is worn off the job; we do not specify what types of long
sleeve shirts and long pants must be worn'' (Ex. 12: 117). The National
Arborist Association (NAA) also was concerned that the proposed rule
would potentially:
[y]ield absurd results such as shifting to employers the cost of
purely personal clothing items which are required to be worn on the
job for a protective function, but which are uniquely personal to
the employee and are ubiquitously worn as much off the job as on the
job--such items as required blue jeans rather than shorts to protect
legs from being scratched from branches; tighter-fitting tee shirts
or pants to prevent clothes from inadvertently becoming caught in a
chain saw being used to cut a branch, or sturdy work boots required
to be worn to provide ankle support and sole protection on rough
terrain (Ex. 12: 10 pp. 2-3).
In response to each of these concerns, OSHA has included language
in the standard to explicitly exclude normal work clothing from the
employer payment requirement. OSHA believes that this reflects the
original intent of the proposal (See Section B below). Thus, if the
protective equipment is used to comply with an OSHA standard, and is
not exempted from payment by this standard, the employer must provide
it at no cost to his or her employees. Otherwise, the employer is not
required to pay for it. For example, hearing protectors are required to
be provided in general industry and construction under the provisions
Sec. 1910.95 and Sec. 1926.101, respectively. Therefore, employers
are required to pay for hearing protection.
On the other hand, dust masks and respirators that an employer
allows employees to use under the voluntary use provisions of the Sec.
1910.134 respiratory protection standard are not required to comply
with an OSHA standard. Because of this, employer payment is not
required.
The NAA also raised the question of whether Section 5(a)(1) of the
OSH Act would require the provision of PPE that would be subject to an
employer payment requirement (Ex. 12: 10, p. 11).\2\ OSHA's PPE
standards at Sec. 1910.132, Sec. 1915.152, Sec. 1917.95, Sec.
1918.105, and Sec. 1926.95, already require employers to determine the
PPE necessary for their work settings. OSHA is not aware of PPE that
would protect against hazards subject to enforcement under the general
duty clause that would not also be identified by such a determination.
If there are any such hazards, then the PPE payment provisions of this
standard would not apply since the provisions apply only to equipment
used to comply with the Parts of OSHA's standards that this rule
amends, not with section 5(a)(1) of the OSH Act.
---------------------------------------------------------------------------
\2\ Section 5(a)(1) is the general duty clause of the Act, which
requires employers to ``furnish to each of his employees employment
and a place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious physical
harm to his employees'' (29 U.S.C. 654).
---------------------------------------------------------------------------
Although employer payment is not required when an item of PPE is
not used to comply with an OSHA standard, OSHA encourages employers to
pay for this PPE, given the safety benefits OSHA finds will accrue when
employers are responsible for providing and paying for PPE.
B. Exceptions
1. Safety-Toe Protective Footwear and Non-Specialty Prescription Safety
Eyewear
The proposed rule included exemptions for safety-toe protective
footwear, often called steel-toe shoes, and prescription safety
eyewear. The proposal would have placed conditions on these exemptions:
(1) The employer permits such footwear or eyewear to be worn off the
jobsite; (2) the footwear or eyewear is not used at work in a manner
that renders it unsafe for use off the jobsite; and (3) such footwear
or eyewear is not designed for special use on the job (64 FR 15415).
The final rule contains a similar condition; employers are not required
to pay for these items when they are permitted to be worn off the
jobsite.
In the proposed rule, the Agency reasoned that safety-toe
protective footwear should be exempted because it was sized to fit a
particular employee and is not generally worn by other employees due to
size and hygienic concerns; was often worn away from the jobsite; was
readily available in appropriate styles; and was customarily paid for
by employees in some industries (Id. at 15415). OSHA also noted that
the 1994 policy memorandum exempted safety shoes from the employer
payment requirement (Id.). The Agency proposed to exempt prescription
safety eyewear because it also was very personal in nature, could
generally be used by only one employee, and was commonly used away from
work (Id.).
Many commenters supported the proposed exceptions for safety-toe
protective footwear and non-specialty prescription safety eyewear (See,
e.g., Exs. 12: 4, 7, 9, 28, 111, 113, 117, 163, 184, 201). In a
representative comment, BP-Amoco stated:
BP-Amoco concurs with OSHA's approach to this topic in the
proposed rule. These two items are different than other types of
personal protective equipment in that they are individually fitted
and the styling of these items is important to many employees.
Therefore, eyewear and safety shoes should be excluded from a
general requirement for employers to pay for personal protective
equipment. We further agree that the three conditions associated
with this exception are appropriate and should be retained without
modification in the final rule (Ex. 12: 28).
The Voluntary Protection Program Participants Association (VPPPA)
added:
As OSHA has proposed, it is reasonable for employees to pay for
PPE that is used off the job as well as on (i.e. PPE that satisfies
the proposed standard's 3 conditions) and it should be left to the
employees and employer to reach an agreement for the purchase of
this kind of PPE. Some facilities may decide it is in their best
interest--for employee morale or other reasons--to pay for this
equipment, but the decision should be voluntary (Ex. 12: 113).
Other commenters strongly objected to any exceptions, and urged
OSHA to require employers to pay for all types of PPE. Several stated
that PPE is part of the hierarchy of controls, and while OSHA would not
ask an employee to pay for a ventilation system, neither should it
expect the employee to pay for any PPE (See, e.g., Exs. 12: 19, 12:
100, 22A, 23, 25, 26A, 37, 100; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366,
Tr. 463-464).
Some commenters expressed the opinion that the ``personal'' nature
of certain types of PPE was not an appropriate basis for exempting the
PPE from an employer payment requirement (Exs. 19, 23, 24A, 24B; Tr.
278, Tr. 337, Tr. 342).
In addition, there were a number of comments challenging the basis
for
[[Page 64348]]
exempting safety-toe protective footwear and prescription safety
eyewear because employees can and do use them off the job site (see,
e.g., Exs. 22, 24B, 24C; Tr. 198-199, Tr. 264, Tr. 274, Tr. 280, Tr.
356-358, Tr. 372-373). NIOSH, ISEA, and the United Auto Workers (UAW)
argued that off-the-job use of PPE should not relieve employers of
their obligation to pay for PPE and that employers should, in fact,
encourage the use of PPE off the jobsite to promote safe behaviors of
their employees (Exs. 12: 130, 230, 23; Tr. 72-73, Tr. 450, Tr. 598).
After careful consideration of the comments, OSHA has decided to
retain the exceptions for non-specialty safety-toe protective footwear
and non-specialty prescription safety eyewear in the final PPE payment
standard. The Agency believes that these two items have unique
characteristics that continue to warrant exemption from employer
payment.
OSHA believes employers should not have to pay for non-specialty
prescription safety eyewear for several reasons. Prescription safety
eyewear is designed for the use of a single individual. Some of the
employees who require such correction wear contact lenses, thus
allowing them to wear non-prescription safety eyewear. Additionally,
employers would rarely, if ever, be required under an OSHA standard to
provide non-specialty prescription safety eyewear to their employees.
The eye protection standards for each affected industry (Sec.
1910.133, Sec. 1915.153, Sec. 1917.91, Sec. 1918.101, and Sec.
1926.102) allow the employer the option of providing either appropriate
prescription safety eyewear or alternate protection that can fit over
an employee's regular prescription glasses, such as goggles or a face
shield. Each standard specifies that the alternate protection must not
disturb the adjustment or positioning of the spectacles. This
requirement ensures that an employee's vision is not altered by the
safety device, which could create an additional safety concern. While
it is true that non-specialty prescription safety eyewear may be less
cumbersome than items worn over eyeglasses, because non-specialty
prescription safety eyewear is not the only PPE option for achieving
adequate eye protection, and is designed for the use of a single
individual, employers should not be required to pay for this
protection. Therefore, OSHA is retaining the exemption for non-
specialty prescription safety eyewear in the final standard.
(Prescription inserts for full-facepiece respirators and diving helmets
are discussed later.)
Unlike non-specialty prescription safety eyewear, the use of
safety-toe protective footwear is clearly required by OSHA standards
when employees are exposed to hazards that could result in foot
injuries. However, OSHA has historically taken the position that
safety-toe protective footwear has certain attributes that make it
unreasonable to require employers to pay for it in all circumstances,
as further discussed in Section XIV, ``Legal Authority''. Safety
footwear selection is governed by a proper and comfortable fit. It
cannot be easily transferred from one employee to the next. Unlike
other types of safety equipment, the range of sizes of footwear needed
to fit most employees would not normally be kept in stock by an
employer and it would not be reasonable to expect employers to stock
the array and variety of safety-toe footwear necessary to properly and
comfortably fit most individuals.
Furthermore, most employees wearing safety-toe protective footwear
spend the majority of their time working on their feet, and thus such
footwear is particularly difficult to sanitize and reissue to another
employee. Other factors indicate as well that employers should not be
required to pay for safety-toe protective footwear in all
circumstances. Employees who work in non-specialty safety-toe
protective footwear often wear it to and from work, just as employees
who wear dress shoes or other non-safety-toe shoes do. In contrast,
employees who wear specialized footwear such as boots incorporating
metatarsal protection are likely to store this type of safety footwear
at work, or carry it back and forth between work and home instead of
wearing it. As explained in detail in the Legal Authority section, OSHA
does not believe that Congress intended for employers to have to pay
for shoes of this type.
For all of these reasons, OSHA has decided to continue to exempt
non-specialty safety shoes from the employer payment requirement. OSHA,
however, also wants to make clear that this exemption applies only to
non-specialty safety-toe shoes and boots, and not other types of
specialty protective footwear. Any safety footwear that has additional
protection or is more specialized, such as shoes with non-slip soles
used when stripping floors, or steel-toe rubber boots, is subject to
the employer payment requirements of this standard. Put simply, the
exempted footwear provides the protection of an ordinary safety-toe
shoe or boot, while footwear with additional safety attributes beyond
this (e.g., shoes and boots with special soles) fall under the employer
payment requirement. (OSHA also notes that normal work boots are
exempted from employer payment under a different provision of the final
rule, discussed later in this section.)
Finally, the rule essentially retains the conditions for the
exceptions contained in the proposal, although OSHA has tried to
simplify them in the regulatory text. The rule states that the employer
is not required to pay for non-specialty safety-toe protective footwear
(including steel-toe shoes or steel-toe boots) \3\ and non-specialty
prescription eyewear, provided that the employer permits such items to
be worn off the jobsite. The term ``non-specialty'' is used to indicate
that the footwear and eyewear being exempted is not of a type designed
for special use on the job (e.g., rubber steel-toe shoes). This is
consistent with the condition in the proposed rule that the equipment
not be ``designed for special use on the job.'' The final rule also
incorporates the condition from the proposed rule that requires the
employer to pay for PPE that is not permitted to be used off the job.
---------------------------------------------------------------------------
\3\ The parenthetical phrase ``including steel toe shoes or
steel-toe boots'' is included since this terminology is commonly
used in reference to non-specialty safety-toe protective footwear.
---------------------------------------------------------------------------
The proposed regulatory text also contained an employer payment
condition for footwear or eyewear based on whether its use at work
renders it unsafe for use off the jobsite. The Agency is concerned that
this condition could be construed as creating a general requirement
that contaminated equipment remain on-site. While this is a prudent
practice in many instances, and a requirement in some substance-
specific standards, making this a general requirement under the Parts
amended by this rule is outside the scope of this rulemaking. OSHA also
believes that an explicit condition for contaminated equipment is
unnecessary. The final rule, like the proposal, requires employer
payment if the employer does not permit the employee to take that
equipment off the jobsite for any reason. Reasons for not permitting
removal from the jobsite can include a requirement in an OSHA standard
that such equipment not be taken off site because it is contaminated or
an employer policy that contaminated equipment remain in a special area
at the worksite. Because of this, OSHA does not believe it is necessary
to include a separate condition related to contaminated PPE in the
final rule.
[[Page 64349]]
2. Everyday Work Clothing and Weather-Related Items
In the regulatory text of the final rule, OSHA is also specifically
exempting everyday work clothing and ordinary clothing/items used
solely for protection from the weather. OSHA did not intend to cover
these items in the proposed rule. A number of commenters to the
rulemaking record, however, questioned whether these items would be
covered and requested that OSHA clarify its position (See, e.g., Exs.
45: 28, 48; 46: 44; 12: 16, 55, 129). OSHA has determined that
additional clarity was needed in the regulatory text regarding payment
for everyday clothing and ordinary clothing used solely for protection
from weather and has therefore made these exceptions explicit in the
final regulatory text.
As explained in the Legal Authority section, OSHA does not believe
that Congress intended for employers to have to pay for everyday
clothing and ordinary clothing used solely for protection from the
weather. While serving a protective function in certain circumstances,
employees must wear such clothing to work regardless of the hazards
found. OSHA is exercising its discretion through this rulemaking to
exempt jeans, long sleeve shirts, winter coats, etc., from the employer
payment requirement. As stated, this is consistent with OSHA's intent
in the proposal and is also supported by the rulemaking record. A
number of commenters stated that OSHA should exempt these items from
the employer payment requirement (See, e.g., Exs. 12: 10, 16, 28, 55,
117, 129, 210, 222).
Thus, OSHA is not requiring employers to pay for everyday clothing
even though they may require their employees to use such everyday
clothing items such as long pants or long-sleeve shirts, and even
though they may have some protective value. Similarly, employees who
work outdoors (e.g., construction work) will normally have weather-
related gear to protect themselves from the elements. This gear is also
exempt from the employer payment requirement.
3. Logging Boots and Items in Other OSHA Standards
Under the final rule, the employer would not have to pay for
logging boots required in 29 CFR 1910.266(d)(1)(v) (61 FR 15403). In
the final logging standard, OSHA concluded that logging boots should be
exempt from an employer payment. The final standard recognizes this
exemption, as did the proposed rule. While some commenters suggested
the exception should be eliminated, citing the same reasons given above
for eliminating the exception for non-specialty safety-toe protective
footwear, the submitted information has not convinced the Agency that
employer payment for logging boots is necessary. This is particularly
true given the extensive rulemaking record developed in support of the
exemption during the rulemaking for the logging standard.
In addition to the provisions of the final rule clarifying the PPE
that is not subject to the employer payment requirement, OSHA has added
a regulatory note to each of the affected standards to make it clear
that when the provisions of another OSHA standard specify whether or
not the employer must pay for specific equipment, the payment
provisions of that standard shall prevail. This approach provides for
Agency determinations in future rulemakings that certain PPE should be
specifically included or excluded from the PPE payment rule.
Table V-1 provides examples of PPE and other items that an employer
is not required to pay for under the specific exceptions included in
the standard. This table is intended to assist in identifying items
exempt from the employer payment requirement. However, it should not be
construed to be an all-inclusive list.
Table V-1.--Examples of PPE and Other Items Exempted From the Employer
Payment Requirements
------------------------------------------------------------------------
-------------------------------------------------------------------------
Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/
boots).
Non-specialty prescription safety eyewear.
Sunglasses/sunscreen.
Sturdy work shoes.
Lineman's boots.
Ordinary cold weather gear (coats, parkas, cold weather gloves, winter
boots).
Logging boots required under Sec. 1910.266(d)(1)(v).
Ordinary rain gear.
Back belts.
Long sleeve shirts.
Long pants.
Dust mask/respirators used under the voluntary use provisions in Sec.
1910.134.
------------------------------------------------------------------------
C. Other Items Raised in the Rulemaking Record
If a particular item of PPE is used to comply with OSHA standards,
and does not fall under the PPE standard's exceptions, then this PPE
standard requires the employer to provide the item to his or her
employees at no cost to the employees. OSHA solicited comment on
several items in the preamble to the proposed standard, and commenters
raised issues with several other items. The following discussion deals
with each of these items, including prescription eyewear inserts in
respirators, uniquely personalized components of personal protective
equipment, welding PPE, metatarsal foot protection, equipment used by
electric utility employees, and fabric or leather work gloves.
1. Prescription Eyewear Inserts in Respirators
Issue eight of the preamble to the proposed PPE payment standard
asked for comment on specialized respirator inserts, as follows:
Full-facepiece respirators present a unique problem for
employees who need prescription glasses. The temples of the
prescription glasses break the face-to-face piece seal and greatly
reduce the protection afforded by the respirator. Special glasses
and mounts inside the facepiece of the respirator are sometimes used
to provide an adequate seal. Because of this special situation, OSHA
believes that it is appropriate for the employer to provide and pay
for the special-use prescription glasses used inside the respirator
facepiece. Is it common industry practice for employers to pay for
these special glasses? What is the typical cost for providing
``insert-type'' prescription glasses inside full-facepiece
respirators? (64 FR 15416).
OSHA received no substantive adverse comment on employer payment
for this equipment. Commenters offered a number of observations and
recommendations, however, including that the employer should pay for
all components needed to ensure the effectiveness of the PPE (Ex. 12:
134, 190, 218), the eyewear is part of the respirator (12: 134, 218),
and the employer should pay for lenses and hardware, but the employee
should pay for the doctor's exam (Ex. 12: 51). The ISEA noted that
full-facepiece respirator inserts:
[s]hould be supplied and paid for by the employer * * * A full-
facepiece respirator insert costs roughly $50-$100, depending on the
prescription (single, bifocal, etc.), the material (polycarbonate,
etc.), and the fitting-delivery system used (Ex. 12: 230).
Additional comment on respirator inserts was provided by the ASSE,
which stated that: ``[m]ost prescription safety eyewear will fit into a
full-face respirator with the appropriate mounts. We are aware of some
circumstances when an additional specific frame had to be ordered to
work with such a facemask. Most of our members commented that from
their experience, most employers would pay for the additional product
in such a situation'' (Ex. 12: 110). Blais Consulting offered a
somewhat different view, stating that:
[[Page 64350]]
Full face respirators do present a problem with spectacles as
the temples frequently will break the face-to-face piece seal and
greatly reduce the protection afforded by the respirator. * * * I
concur with OSHA that it is appropriate for the employer to provide
and pay for the special-use prescription glasses to use inside the
respirator face piece as the spectacle must be worn to fulfill the
requirements for the 29 CFR 1910.134 Respiratory Protection Standard
and is not of a street-wear type spectacle (Ex. 12: 233).
Dow noted that:
[w]here full face respirators are required to be worn on the job, it
is reasonable for the employer to pay for prescription glasses to be
worn. OSHA allows the use of contact lenses when a full face
respirator is worn. Dow does not believe that this regulation should
be construed to require the employer provide contact lenses for
employees who also happen to wear respirators on the job (Ex. 12:
129).
Corrective eyewear is necessary for the employee to see clearly in
order to safely perform his or her job, yet not all employees who
require vision correction and use full facepiece respirators wear
contact lenses. A major concern with a full facepiece respirator is
that the seal between the employee's face and the respirator must not
leak. If it does, then the respirator will not provide the intended
protection. Therefore, items that pass under the seal, such as the
temple pieces of prescription glasses, break the face to facepiece
seal. If the employee's prescription glasses cannot be fitted into the
respirator without compromising the seal, then there is no alternative.
Special lenses will be needed to protect the employee, and they must be
provided at no cost to that employee. OSHA has determined that when
special-use prescription lenses must be used or mounted inside the
respirator facepiece, employers must pay for the lenses / inserts.
2. Components of Personal Protective Equipment
Issue ten of the preamble to the proposed PPE payment standard
asked for comment on PPE components, such as shoe inserts, head
coverings used under welding helmets and custom prescription lens
inserts worn under a welding helmet or a diving helmet (64 FR 15416).
A number of commenters supported employer payment for components in
some circumstances. Various commenters suggested that employers should
pay because the only function of the component is to protect the
employee from workplace hazards (See, e.g., Exs. 12: 190, 218). The
ISEA remarked that:
[e]mployers have an obligation to properly protect employees from
all occupational hazards. If uniquely personalized components of PPE
are protective in nature-such as winter liners for hardhats-then
employers should pay for them. Employers should pay for custom
prescription lens inserts used under a welding helmet because safety
glasses should be worn when welding. It is not functional to wear
street prescription glasses, a protective goggle and a welding
helmet. All equipment necessary for employees to adequately perform
their jobs should be paid for by the employer (Ex. 12: 230).
The UFCW raised the issue of shoe inserts, remarking that:
Shoe inserts, as personal protective equipment, are a control
method for alleviating the hazard of standing for prolonged periods
of time on hard surfaces. The United Auto Workers, through workplace
surveys, has recently documented the need for shoe inserts for their
members who work in the ``big three'' auto plants and stand all day.
In fact, collective bargaining agreement language requires that the
employer provide inserts, free of charge, to workers who need them.
Anti-fatigue mats are common in retail food stores, and in some
manufacturing plants. These are provided by the employer to address
this hazard, an acknowledgment on the part of the employer that this
hazard does exist. As anti-fatigue mats are provided at no cost to
provide some support and relief of the lower extremities and lower
back, so should shoe inserts. In fact, shoe inserts can be used
where anti-fatigue mats cannot, such as in locations in meat and
poultry plants where they are impractical or a sanitation problem.
Shoe inserts are also more practical for jobs which may require some
walking or moving from one location to another, as the mats are
stationary and do not move with the worker (Ex. 41).
Others stated that the employer should pay up to the basic cost of
the minimum PPE (See, e.g., Ex. 12: 228); the employer should pay if it
is PPE (See, e.g., Ex. 12: 32); and the employer should pay ``[i]f it
cannot stand on its own use'' (Ex. 12: 52).
Still other commenters raised items or situations where they
believed the employee, not the employer, should pay for the equipment.
The reasons behind these comments include: The employee should pay if
the item is personal in nature, such as shoe inserts (Ex. 12: 3); the
employee should pay because this equipment is too personal (Ex. 12:
19); and employers should not be required to pay for equipment that is
personal in nature and goes beyond what is required for employee safety
(Ex. 12: 65). Douglas Battery remarked that:
In a related issue, employers should have the option of electing
not to provide or reimburse employees for PPE which is personal in
nature. An example of ancillary ``equipment'' which is personal in
nature, but not required for safety, would include custom insoles
for safety shoes which are not required in writing by a physician as
a ``reasonable accommodation'' to performing the assigned job (Ex.
12: 3).
The question of when to require employer payment for PPE components
and inserts is not easy to resolve due to their wide variety. However,
the comments of ORC suggest a reasonable solution to the problem. ORC
commented:
The employer should be required to provide and pay for PPE that
is adequate to protect an employee from the workplace hazards
identified. If a personalized component is necessary in order for
the PPE to provide adequate protection, it is not something that is
typically worn or used off the worksite and meets the criteria
proposed [by ORC] for exception of personal items, it should be the
employer's responsibility to provide it and pay for it. However, if
the protection afforded by the PPE is not compromised by not
providing the personalized component, the employer should be under
no obligation to pay for the personalized component (Ex. 12: 222).
OSHA has decided to adopt the basic approach put forward by ORC. If
the component is needed for the PPE to adequately protect the employee
from the workplace hazard the PPE is designed to address, the employer
must pay for it, provided the PPE does not fall within one of the
exceptions listed in the final rule. For example, if prescription
lenses are needed so an employee can wear a diving helmet to do his or
her job, then the prescription lenses must be provided at no cost by
the employer. This approach is the same as that taken in the standard
for prescription lens inserts for full facepiece respirators.
However, if the component is not needed for the PPE to provide
adequate protection, then the employer would not be required to pay for
the component. For example, employers would not be required to pay for
shoe inserts to prevent fatigue because the inserts are not needed for
the PPE to perform as designed. In addition, if the PPE in which the
component is placed is otherwise exempted from the final rule, the
employer is not required to pay for the component. Thus, employers
would not be required to pay for cold weather inserts worn under
raincoats, because raincoats are otherwise exempt from employer
payment.
OSHA also notes that if the component is needed for the PPE to fit
the employee properly, then the employer is required to provide the
item at no cost to the employee. The various general PPE standards
require the employer to provide properly fitting PPE, and if it does
not fit properly it will
[[Page 64351]]
not have the protective value it was designed to provide. Therefore,
payment for items needed to make PPE fit properly is required.
Finally, although it may seem self-evident, personalized components
or add-ons that do not affect safety are not covered by the final
standard. For example, items chosen for aesthetic features (e.g.,
logos, color, style) that have no additional safety purpose do not fall
under the employer payment requirements.
3. Metatarsal Protection
While the non-specialized safety-toe protective footwear that is
exempted from the PPE payment requirements contains a protective device
for the toes, metatarsal protection is designed to protect the top of
the foot from the toes to the ankle over the instep of the foot. This
protection is required by the OSHA standards when there is a potential
for injury to that part of the foot from impact or compression hazards
that could occur, for example, from handling heavy pipes, or similar
activities where loads could drop on or roll over an employee's feet.
Metatarsal protection is available both as an integrated part of the
footwear, and as a guard that can be attached to a shoe or boot to
provide protection.
OSHA did not exempt metatarsal protection from the employer payment
requirement in the proposed rule. In its introductory remarks at the
informal public hearing, OSHA explained that ``* * * the proposed
exception would not apply to metatarsal protection, metatarsal guards
or protective footwear that incorporates metatarsal protection, or
special cut-resistant footwear because these kinds of footwear are not
generally used off the worksite and employers often reissue metatarsal
guards and cut-resistant footwear to subsequent employees'' (Tr. 19-
20).
A number of commenters suggested that metatarsal shoes should be
exempted from the employer payment requirement (See, e.g., Exs. 12: 66,
149, 155, 222, 235). Caterpillar, Inc. offered several reasons why
metatarsal shoes should be exempted, stating:
Virtually all metatarsal shoes with integral guards are personal
in nature and belong to an individual employee. * * * OSHA states a
belief that there is little statutory justification for requiring
employers to pay for personal protective equipment if it is used
away from the workplace and if three proposed conditions are met.
The third condition contains an assumption that if `the footwear has
built-in metatarsal guards as well as safety-toes, it could not be
worn off-site', which is not a valid assumption. Employees do wear
their metatarsal shoes off-site (Ex. 12: 66).
The Specialty Steel Industry of North America (SSINA) remarked:
SSINA member companies are committed to employee safety and
health, and provide and pay for all types of personal protective
equipment (``PPE''). Although SSINA supports the proposed rule in
general, the association is concerned about the absence of a
provision allowing payment terms for metatarsal shoes to be
negotiated through collective bargaining agreements. Because of the
importance of these shoes to specialty steel workers, the payment
terms for this type of protective footwear are generally specified
in collective bargaining agreements negotiated with labor unions.
SSINA believes that the proposed PPE rule prohibits this process
(12: 1498).
Consolidated Edison Company of New York, Inc. asked OSHA to clarify
in the final rule that employers are not required to pay for shoes with
metatarsal protection if the employer offers, free of charge, foot
guards to be worn over regular safety footwear (Ex. 12: 155).
In the final standard, OSHA has decided not to exempt metatarsal
protection from the PPE payment provisions. OSHA disagrees with those
commenters who suggested that metatarsal protection is ubiquitous and
is frequently worn by employees away from the worksite. Several hearing
participants testified that this footwear is not normally worn off site
(Tr. 203; 349; 390-391). Specifically, Jacqueline Nowell of the UFCW
referenced a court decision requiring the employer to pay for
metatarsal support boots. The judge based his finding on testimony that
``99 percent of the employees use their boots exclusively for work''
(Tr. 203). When asked about his experiences with employees wearing
shoes with metatarsal guards off site, William Kojola of the AFL-CIO
testified, ``I'm not aware of any, in my own experience aware of any
circumstance where a worker would actually use that piece of equipment
offsite'' (Tr. 349). Mr. Kajola continued that this was his experience
regardless of whether the guard was built into the footwear or put on
as a separate piece. After considering the comments, OSHA remains
convinced that metatarsal protection is a specialized form of foot
protection. In addition, OSHA has historically not exempted metatarsal
protection from an employer payment requirement.
In the final standard, however, OSHA is making clear that employers
may provide metatarsal guards to their employees to protect against
hazards and are not required to provide metatarsal protection that is
integrated in the shoe. The United Steelworkers Union recommended that
removable metatarsal guards be banned, asserting that ``The removable
metatarsal guard does not provide the needed protection that is
provided by the built-in metatarsal guard that was designed for the
specific shoe that it was attached to.'' (Tr. 378-379).
While OSHA appreciates the comment from the USWU, this rulemaking
is limited to issues of PPE payment, and not the adequacy of certain
types of PPE. OSHA's long-standing policy is that when conditions at
the workplace require metatarsal protection, adequate protection can be
achieved through the proper use of metatarsal guards. If the employer
requires employees to wear metatarsal shoes or boots, the employer is
required to pay for them. However, the final standard stipulates that
when the employer provides metatarsal guards and allows the employee,
at his or her request, to use shoes or boots with built-in metatarsal
protection, the employer is not required to pay for the metatarsal
shoes or boots. In this circumstance, the final standard does not
prohibit employers from contributing to the cost of metatarsal shoes or
boots should they choose to do so. Some employers currently offer their
employees a choice between using a metatarsal guard provided and paid
for by the employer or a metatarsal shoe or boot with some portion of
the cost of the shoe or boot paid for by the employer, essentially
establishing an allowance system. This practice is not prohibited by
the rule, as described in the Acceptable Methods of Payment section
below.
4. Welding Leathers
Issue six of the preamble to the proposed PPE payment standard
requested comment on PPE employers provide to welders to protect them
from welding hazards, such as molten metal. Specifically, the Agency
asked: ``The proposal covers protective equipment and personal
protective equipment used in welding, including protective gloves. Does
welding PPE create any unique problems on the PPE payment issue? Does
the employee usually pay for welding PPE?'' (64 FR 15416).
A number of commenters, many from the shipyard industry,
recommended that OSHA exempt welding PPE from the employer payment
requirement (See, e.g., Exs. 7, 29, 32, 39, 65, 112, 228; 45: 52; 46:
32) indicating that it has been customary for welders in some
industries to provide their own PPE. For example, a representative from
the Shipbuilders Council of America (SCA) stated that:
Tools of the trade for welding operations, such as face shields/
goggles, fire resistant
[[Page 64352]]
shirts/jackets, sleeves and leather gloves have predominantly been
provided by the employee because of the equipment's personal nature.
The industry considers these to be tools of the trade because it is
neither feasible for a different employee to wear the welders'
gloves and leathers each day for hygienic reasons, nor is it
feasible that upon resigning from the position that an employee will
leave the leathers behind to be worn by another individual (Ex. 46:
32).
Other commenters stated that an exception for welding PPE was not
needed (Ex. 12: 9, 17, 32, 134, 172, 190, 191, 218, 233; 45: 27). Shell
Offshore, Inc. stated that ``* * * [a] problem could result if
employees were expected to pay for welding PPE. The problem being that
by requiring employees to pay for PPE may discourage use of PPE, or
result in use of ineffective PPE'' (Ex. 12: 9). The International Union
of Operating Engineers (IUOE) remarked that they ``* * * do not believe
that there are unique problems relating to welding PPE. Workers do not
generally pay for welding PPE. All welding PPE should be supplied by
employers'' (12: 134). The National Association of Home Builders (NAHB)
stated that ``Employers customarily pay for the PPE that is required
for welding, including gloves, aprons, and face shields'' (Ex. 12:
212). Testimony of members of the Maritime Advisory Committee for
Occupational Safety and Health (MACOSH) also indicated that other
maritime employers provide and pay for welding PPE; consequently,
MACOSH declined to make a recommendation to OSHA on whether such PPE
should be exempted from a payment requirement (69 FR 41223).
OSHA has decided not to exempt welding equipment from the employer
payment provisions of the final standard. All of the equipment
mentioned is clearly PPE, and the comments are inconsistent as to
whether or not this equipment has any special qualities that would
warrant an exception. The most common concern is that welders in some
industries have customarily supplied their own personal protective
equipment. OSHA has determined that this is not an adequate basis to
exempt PPE. To the extent that these individuals are independent
contractors and not employees covered by the OSH Act, the standard does
not apply to them. Further, as noted in the employee-owned PPE section
of this preamble, employers may allow employees to bring PPE they
already own to work, and are not required to reimburse the employee for
that PPE. Thus, if a welder voluntarily brings his or her own PPE to
the worksite, and the employer ensures that it is appropriate for the
work to be performed, then the employer is not required to provide the
PPE at no cost to that employee.
5. Non-Specialty Fabric or Leather Work Gloves
Many commenters stated that non-specialty fabric or leather work
gloves should be excepted from the employer payment requirement (See,
e.g., Exs. 12: 6, 7, 17, 19, 29, 55, 68, 91, 109, 111, 112, 129, 163,
171, 172, 183, 217, 221, 222). Southwestern Bell (Ex. 12: 6) agreed
that more specialized gloves should be provided and paid for by the
employer, but stated that ``[w]e feel that everyday work gloves made of
fabric and/or leather do meet those conditions because they can be worn
off the job; they are not used in a manner that renders them unsafe for
work off the job; and they are not designed for special use. Thus, we
consider them to be personal in nature'' (Ex. 12: 6). The NAHB added
that ``Many types of gloves can be used for personal use. Unless it's a
very special glove, such as welding or wire-mesh gloves, these should
be considered as an exception'' (Ex. 12: 212).
The Stevedoring Services of America (SSA) and the National Maritime
Safety Association (NMSA) remarked that regular work gloves meet the
intent of the proposed exemptions because they are purchased by size,
are available in a variety of styles and are frequently worn off the
job (Exs. 12: 17, 172). They also commented that most regular work
gloves cannot be cleaned and sterilized and therefore cannot be worn by
more than one employee (Id.). Specifically they stated that ``[r]egular
work gloves, like safety shoes, certainly meet the intent of the
Secretary's interpretation'' and continued with the reasoning that:
1. Regular work gloves are purchased by size.
2. Regular work gloves are available in a variety of styles.
3. Regular work gloves are frequently worn off the job.
4. It is not feasible that each day an employee wears regular
work gloves that have been worn by another employee.
5. It is not feasible that upon resigning from a position that
an employee leave regular work gloves behind for another employee to
wear.
6. It is almost impossible to clean and sterilize most regular
work gloves that have been previously worn.
7. The cost of issuing regular work gloves on a daily basis to
thousands of dock workers nationwide would be extremely expensive to
the employer (Id.).
The American Trucking Association recommended that OSHA exempt from
employer payment non-specialty gloves that meet the same three
conditions as those proposed for safety-toe shoes. The recommendation
is based on the fact that such PPE is also often allowed to be used
off-site by employees (Ex. 12: 171).
In the final standard, OSHA is requiring employer payment for work
gloves when they are used for protection against workplace hazards.
Thus, when used as PPE--to protect employees from such hazards as
lacerations, abrasions, and chemicals--employers must provide them at
no cost. This is consistent with the position OSHA has taken in the
past with this important form of protection.
Furthermore, OSHA does not believe that gloves are similar to the
other exempted items in the standard. Gloves may be distinguished from
general work shoes and boots. Gloves are normally manufactured in only
a few sizes. While gloves worn for a long period by one employee may
become soiled, abraded, and so forth, they generally are not considered
to be as highly personal in nature or in the same manner as footwear.
Wear patterns of footwear differ between individuals resulting in a fit
that may not conform to another individual's foot or gait. Gloves,
however, can normally be worn by another employee. Finally, as opposed
to work boots and shoes, many forms of gloves can be laundered and
sanitized and used by more than one employee.
6. Electrical PPE
Table 1 of the preamble to the proposal listed a number of PPE
items required by OSHA standards, including flame resistant jackets and
pants (64 FR 15408). As a result, several comments were received
regarding the issue of prohibited clothing in OSHA's power generation
and transmission standard at Sec. 1910.269(l)(6). That standard
specifically requires the employer to ensure that each employee who is
exposed to the hazards of flames or electric arcs does not wear
clothing that, when exposed to flames or electric arcs, could increase
the extent of injury that would be sustained by the employee. It
further notes that clothing made from acetate, nylon, polyester, or
rayon is prohibited unless the employer can demonstrate that the fabric
has been treated to withstand the conditions that may be encountered or
that the clothing is worn in a manner that eliminates the hazard. One
method of meeting the requirements of Sec. 1910.269, but not the only
method, is for employers to require their employees to wear flame
resistant clothing (FR clothing). This clothing is specifically
designed to protect employees exposed to various levels of
[[Page 64353]]
heat energy from sustaining severe burn injuries in areas covered by
the clothing.
A number of comments were received from electric utility employers,
who stated that FR clothing is not PPE (See, e.g., Exs. 12: 107, 114,
133, 150, 183, 201, 206, 221), that OSHA should exclude FR clothing
from employer payment requirements (See, e.g., Exs. 12: 16, 133), and
that requiring employers to pay for FR clothing would conflict with
previous interpretations by OSHA (See, e.g., Exs. 12: 114, 133, 150,
206, 221). In a representative comment, the Edison Electric Institute
(EEI) remarked:
EEI is also concerned that compliance officers may inadvertently
classify the apparel/clothing requirement under Sec. 1910.269(l)(6)
of the Electric Power Generation, Transmission and Distribution
standard as personal protective equipment. Classification of
apparel/clothing as PPE would be inconsistent with OSHA's current
position stated in two interpretation letters. * * * In both of
these interpretation letters it is stated that the apparel standard
is not a PPE requirement. * * * EEI requests that OSHA state in the
preamble of the final standard that the apparel/clothing required
under Sec. 1910.269(l)(6) of the Electric Power Generation,
Transmission and Distribution standard is not personal protective
equipment. This statement would avoid disagreements of
interpretations after the rule is finalized (Ex. 12: 150).
Duke Energy suggested that OSHA ``[c]learly specify that flame
retardant apparel is not considered personal protective equipment''
(Ex. 12: 133).
OSHA's existing clothing requirement in Sec. 1910.269 does not
require employers to protect employees from electric arcs through the
use of flame-resistant clothing. It simply requires that an employee's
clothing do no greater harm. The use of certain heavy-weight natural
fiber materials, such as cotton, is allowed where the employer can
assure that the clothing will not contribute to injury to the employee.
Thus, the clothing requirement in Sec. 1910.269 does not mandate
employers provide any particular type of PPE to their employees and the
payment requirement in this final rule would not apply to clothing
permitted by Sec. 1910.269.
It should be noted that the issue of whether FR clothing should be
required by Sec. 1910.269 is currently being considered by the Agency
in a separate rulemaking to revise the electric power generation,
transmission and distribution standard (70 FR 34822-34980, June 15,
2005). The preamble discussion for the proposed Sec. 1910.269 revision
included a full discussion of FR clothing in the electric utility
industry and asked for specific public comment on this issue (70 FR
34866-34870). If OSHA determines in that rulemaking that FR clothing is
required, it will then become subject to the PPE payment provisions of
this rule, unless the final Sec. 1910.269 and Part 1926 Subpart V
standards specifically exempt FR clothing from employer payment.
Several electrical contracting and power companies also recommended
exemptions for certain pole climbing equipment (See, e.g., 12: 16, 38,
144, 161, 183, 206, 221; 46: 49). For example, the National Electrical
Contractors Association (NECA) commented that
[b]ody belts and straps for climbing poles and towers, climbing
hooks, flame resistant clothing, and personal apparel of all
description and usages should also be exempted from the final rule
for the contracting electric power industry. These vary in design
and material, have always been very much subject to personal
preference and are not universally transferable from employee to
employee'' (Ex. 12: 16).
In response to OSHA's request for comment on how a general
requirement for employer payment for PPE should address the types of
PPE that are typically supplied by the employee, taken from job site to
job site or from employer to employer, (69 FR 41221 (July 8, 2004)), a
number of electrical contractors submitted identical comments
suggesting that several types of electrical safety equipment should be
exempted from employer payment (See, e.g., Exs. 45: 6, 7, 8, 9, 10, 11,
12, 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 37, 38, 41, 44, 45, 46, 47;
46: 21, 22, 23, 24, 25, 26, 27, 28, 29). They remarked that employers
in general should pay for PPE used by their employees, but recommended
OSHA provide exemptions for the following items:
1. Protective clothing as listed in NFPA 70E Table 130.7 (C)(10)
for all Hazard/Risk Categories 2 and lower.
2. Protective equipment as listed in NFPA 70E Table 130.7 C (10)
for all Hazard/Risk Categories 2 and lower. (Except for the
equipment listed in FR Protective equipment subpart ``e'').
3. Voltage rated gloves required for work in NFPA 70E Hazard/
Risk Categories 2 and lower.
4. Tools the employee is required to purchase, by an agreement
between the employer and the employee, that are required by NFPA
70E, Hazard/Risk Categories 2 and lower, to be voltage
rated.
This particular equipment was included in a table in the National
Fire Protection Association (NFPA) 70E Electrical Safety Code. Table
130.7(C)(9)(a) of the Electrical Safety Code lists equipment that is to
be used when working on various types of electrical systems, which are
classified into four hazard/risk classes. OSHA wants to make clear that
this equipment would only be covered by the final rule in those
instances where it is required by OSHA standards.
The first item noted by these commenters is fire retardant
clothing, as discussed above. The second item includes a variety of
PPE, including hard hats, safety glasses or goggles, arc-rated face
shields, hearing protection, leather gloves, and leather work shoes.
Within the second item, except for leather work shoes, these items are
required by Sec. 1910.335 and other OSHA standards (depending on the
exposures encountered) and are subject to the PPE payment provisions.
Item three includes voltage rated gloves used to handle electrically
charged lines. This is clearly a specialized item that employees are
not required to purchase. As required by Sec. 1910.137, employers must
inspect and test the gloves at regular intervals to ensure their
continued integrity, and they are so critical to the protection of
employees performing this work that leather gloves are worn over them
to prevent abrasions and holes that could compromise their integrity.
Therefore, employers are required to provide them at no cost to their
employees. The fourth item includes insulated hand tools such as
pliers, screwdrivers, diagonal cutters and wire strippers. As discussed
previously, the Agency has concluded that electrically insulated tools,
while not considered to be PPE for the purpose of this standard, are a
protective control measure and the employer must pay for them.
Table V-2 provides examples of PPE items that an employer is
required to provide at no cost to employees under the final PPE payment
standard. As with Table V-1, this table is not an exhaustive list of
PPE that employers must provide to their employees at no cost.
Table V-2.--Examples of PPE for Which Employer Payment Is Required
[If used to comply with an OSHA standard]
------------------------------------------------------------------------
-------------------------------------------------------------------------
Metatarsal foot protection.
Special boots for longshoremen working logs.
Rubber boots with steel toes.
Shoe covers--toe caps and metatarsal guards.
Non-prescription eye protection.
Prescription eyewear inserts/lenses for full face respirators.
Prescription eyewear inserts/lenses for welding and diving helmets.
Goggles.
Face shields.
Laser safety goggles.
Fire fighting PPE (helmet, gloves, boots, proximity suits, full gear).
[[Page 64354]]
Hard hat.
Hearing protection.
Welding PPE.
Items used in medical/laboratory settings to protect from exposure to
infectious agents (Aprons, lab coats, goggles, disposable gloves, shoe
covers, etc).
Non-specialty gloves:
Payment is required if they are PPE, i.e. for protection from
dermatitis, severe cuts/abrasions.
Payment is not required if they are only for keeping clean or
for cold weather (with no safety or health consideration).
Rubber sleeves.
Aluminized gloves.
Chemical resistant gloves/aprons/clothing.
Barrier creams (unless used solely for weather-related protection).
Rubber insulating gloves.
Mesh cut proof gloves, mesh or leather aprons.
SCBA, atmosphere-supplying respirators (escape only).
Respiratory protection.
Fall protection.
Ladder safety device belts.
Climbing ensembles used by linemen (e.g., belts and climbing hooks).
Window cleaners safety straps.
Personal flotation devices (life jacket).
Encapsulating chemical protective suits.
Reflective work vests.
Bump caps.
------------------------------------------------------------------------
D. Replacement PPE
Replacing PPE that is no longer functional is crucial to employee
safety and health. OSHA finds that timely replacement of PPE is more
likely to occur when the employer is responsible for bearing the cost.
OSHA is requiring employers to not only pay for the initial issuance of
PPE, but also its replacement, except when the employee has lost or
intentionally damaged the PPE.
In the proposed rule, OSHA did not include language in the
regulatory text setting forth an employer's obligation to pay for
replacement PPE. However, in the preamble to the proposal OSHA stated:
OSHA intends to require employers to pay for the initial issue
of PPE and for replacement PPE that must be replaced due to normal
wear and tear or occasional loss. Only in the rare case involving an
employee who regularly fails to bring employer-supplied PPE to the
job-site, or who regularly loses the equipment, would the employer
be permitted to require the employee to pay for replacement PPE (64
FR 15414).
OSHA also noted that if an employee misuses or damages the PPE, the
employer may ask the employee to pay for replacement:
The proposed requirement would also make the employer
responsible to provide, and pay for, replacement PPE when the
original PPE wears out from normal wear and tear or in the event of
occasional loss or accidental damage by the employee. However, if an
employee regularly and with unreasonable frequency loses or damages
the PPE, the employer may request that the employee pay for the
replacement PPE (64 FR 15415).
In these discussions, OSHA attempted to set the parameters for when the
employer would be responsible for paying for replacement PPE (e.g.,
when the PPE wears out from ``normal wear and tear,'' ``occasional
loss,'' etc.) and when the employer may request that the employee pay
for the replacement (e.g., ``[r]egularly and with unreasonable
frequency loses or damages the PPE''). This position was also
consistent with the past positions OSHA has taken on the issue of
employer payment for replacement PPE. For example, OSHA determined that
the employer must bear the cost of replacing worn out hearing
protectors required under the occupational noise exposure standard, 29
CFR 1910.95, but stated its belief that employers should not have to
pay for an unlimited supply of protectors or bear the expense in cases
where an employee has been irresponsible (46 FR 4078, 4153-4154 (Jan.
16, 1981)).
While many commenters supported a general requirement that
employers pay for replacement PPE (See, e.g., Exs. 12: 9, 51, 110, 113,
116, 134, 141, 152, 188, 190, 222, 230, 233; Tr. 326, 376, 600, 631),
there were two major issues raised by commenters regarding OSHA's
position in the proposal. First, a substantial number of comments in
the rulemaking record suggested that the proposed rule did not clearly
set forth an employer's obligation to pay for replacement PPE. Many
commenters urged the Agency to more clearly define those instances
where an employer must pay for replacement PPE and those instances
where it would be appropriate for employees to pay for the PPE. Several
commenters suggested OSHA include specific regulatory language to
address replacement PPE to clarify these issues, rather than simply
dealing with the issue in the preamble (See, e.g., Exs. 12: 3, 58, 188,
212; 46: 43). Second, commenters were concerned that OSHA's rule would
prevent them from enforcing legitimate workplace rules regarding
employee misuse and damage to PPE. OSHA addresses these issues below.
OSHA also addresses comments in the record questioning acceptable
replacement schedules and allowances.
1. Clarity
Several commenters raised issues about the clarity of OSHA's
position in the proposed rule on replacement PPE. The majority of the
comments on the issue of employer payment for replacement PPE asked
OSHA to clarify its statements in the proposal as to when employers
would and would not be required to pay for replacement PPE. The
comments received included a number from employers who expressed
concern that they would be paying for an endless stream of PPE. These
commenters noted the uncertainty of determining the meaning of ``normal
wear and tear'' and ``occasional loss'' in the context of the wide
variety of PPE that is required and used in various industries.
A number of commenters suggested that OSHA should strictly define
``regular loss'' or ``occasional loss'' that were used in the preamble
to the proposal, in the final rule by specifying it as two, three, or
four occurrences (See, e.g., Exs. 12: 14, 17, 41, 62, 87, 121, 143,
167, 168, 212, 242). BP-Amoco recommended that ``The particulars of any
case of occasional loss or damage are going to be unique to each case,
and the resolution of who should be responsible to pay is best left up
to the contractual agreement or grievance procedures in place between
the employer and employee group. For OSHA to attempt to regulate this
issue would require OSHA to define what is occasional loss and when
employee conduct becomes negligent--something that is not possible or
desirable'' (Ex. 12: 28).
The Screenprinting & Graphic Imaging Association International
(SGIA) also questioned the meaning of the term ``lost'':
For example, an employee is wearing a pair of gloves while out
on the loading dock as a shipment of ink is delivered. As the
employee reaches for the load coming from the truck, one glove is
pulled from the employee's hand, falls to ground and is blown away
by the wind and cannot be found. In this instance, the PPE was not
damaged, did not show normal wear and tear, yet requires
replacement. The employee was not negligent, but the PPE is lost,
and the employer should be responsible to pay for the replacement.
If the same employee, however, were to have placed the gloves down
on a table, walked off, then came back to find them missing, this
can be seen as neglect and the employee pays for the replacement.
Although these two examples are open for discussion, it shows that
each worksite needs to make specific policies for what will
constitute a lost item, and how to safe guard against abuse and
negligence (Ex. 12-116, p. 2).
[[Page 64355]]
Other commenters expressed concern about the proposed language
addressing the duty to replace PPE that has been lost or damaged beyond
``normal wear and tear.'' For example, ORC, Inc. recommended that:
How an employer deals with replacement of PPE that is lost or
damaged by employees beyond what would be expected through normal
wear and tear, should be left to the employer's discretion'' (Ex.
12: 222).
In a comment that was echoed by approximately 60 associations of
home builders, the Ohio Home Builders Association stated that:
The proposed revision to the PPE standard does not allow
employers much flexibility in how they manage safety and health on
their jobsites. OSHA would require each employer to pay for all PPE
used by employees with very few exceptions. Only in the rare case
involving an employee who regularly fails to bring employer-supplied
PPE to the job-site, or who regularly loses the equipment, would the
employer be permitted to require the employee to pay for replacement
PPE. How are we to define ``regularly'' in these scenarios? (Ex. 12-
34).
Furthermore, a large number of commenters recommended OSHA include
regulatory language in the final rule to clearly articulate when an
employer could require the employee to replace the PPE at his or her
own cost (See, e.g., Exs. 12: 3, 21, 51, 58, 68, 79, 99, 101, 217; 46:
43).
OSHA has carefully considered these comments and has made changes
to the approach in the proposed rule. First, OSHA has added new
regulatory text to address specifically an employer's obligation to pay
for replacement PPE. OSHA believes that because the issue of
replacement PPE was not included in the regulatory text of the proposed
rule, there was confusion amongst employers as to their precise
obligations. By including replacement language in the regulatory text,
OSHA believes that the rule will be clearer for employers and
employees.
Second, in formulating the regulatory text, OSHA determined that
using ``normal wear and tear'' as a benchmark was unhelpful, given the
wide variety of PPE covered by the rule and the wide variety of uses
for the PPE. OSHA was concerned that relying on ``normal wear and
tear'' could result in employers not providing required replacement PPE
at no cost to employees. Furthermore, OSHA determined that the term
``occasional loss'' was vague and could be subject to varying
interpretations. OSHA thus determined that the rule would not rely on
these terms, but would specify when employers are not required to bear
the cost of replacement PPE. Thus, the rule requires employers to pay
for replacement PPE, following the criteria in OSHA's existing
standards governing when PPE must be replaced, except when the employee
loses or intentionally damages the PPE.
By excepting employer payment for all ``lost'' PPE, OSHA hopes to
avoid the confusion caused by using the terms ``occasional loss'' in
the proposal. ``Occasional loss'' lacks reasonable precision given the
universe of circumstances in which a wide variety of PPE may be lost
either at work or off of the worksite. For these reasons, this rule
does not require employers to bear the cost of replacing PPE that the
employee has lost, even if it is a single instance. In addition, the
PPE may be considered ``lost'' if the employee comes to work without
the PPE that has been issued to him or her.
The employer is free to develop and implement workplace rules to
ensure that employees have and use the PPE the employer has provided at
no cost. For example, an employer may require employees to keep their
PPE in a secured locker, or turn in the PPE at the end of the shift.
Alternatively, employers may enter an agreement with the employee
allowing the employee to take the PPE that the employer has provided at
no cost to the employee off of the job site to use at home or for other
employers. The agreement may stipulate that the employee is responsible
for any loss of the PPE while it is off of the job site. The rule does
not prohibit an employer from exercising his or her discretion to
charge an employee for replacement PPE when the employee fails to bring
the PPE back to the workplace.
Furthermore, by setting forth in the regulatory text that employers
can ask employees to pay for replacement PPE needed as a result of an
employee intentionally damaging PPE, OSHA is addressing the concerns of
many commenters that the proposed rule would have required employers to
pay for replacement PPE damaged due to employee misconduct (See, e.g.,
Exs. 12: 21, 44, 58, 68, 79, 101, 152, 154, 165, 172, 182, 203, 210,
212, 228; Tr. 154, 549; 46: 23). OSHA wants to make clear, however,
that the exception only applies when the damage was intentional.
Accidental damage of the PPE by the employee does not qualify for the
exception.
Finally, OSHA emphasizes that the final rule only requires the
employer to pay for PPE that is used to comply with the Parts that the
rule amends. Employers are not required to pay to replace PPE that is
not used to comply with those Parts. Therefore, if the employer is not
required to pay for the initial issue of PPE, the employer is not
required to pay for the replacement of that PPE. However, if the
working conditions have changed such that the PPE the employee had
provided at his or her cost is now required under OSHA requirements,
then the employer is required to pay for the replacement PPE it will
have its employees use to comply with those requirements. When the PPE
the employee already owns is adequate in these circumstances, the
employee volunteers to use the PPE, and the employer allows the
employee to use it in place of the PPE the employer must now provide,
then the employer is not required to reimburse the employee. This is
the same exception provided in the regulatory provision addressing
employee-owned PPE. Similarly, as far as PPE that an employee has
provided at his or her own cost, once that PPE is no longer adequate,
the employer must pay for PPE that is required to comply with the rule,
unless the employee voluntarily decides to provide and pay for his or
her own replacement PPE (which may occur if the employee wants
personalized or upgraded PPE). As with PPE owned by a newly hired
employee, the employer is prohibited from requiring employees to
provide their own PPE. The same replacement issues may arise if an
employee no longer volunteers his or her own PPE for workplace use, and
the same policies apply.
2. Disciplinary Policies
Commenters were also concerned that OSHA's rule would prevent them
from effectuating their reasonable disciplinary policies and infringe
upon legitimate management practices to enforce safety and health rules
at the worksite. Some commenters argued that without employer
disciplinary programs, abuse would occur (See, e.g., Ex 12: 49), and
stated that there were no provisions that would allow employers to
enforce employee accountability (See, e.g., Exs. 12: 31, 34, 68, 95,
167, 172, 212). As ORC, Inc. stated:
How the employer chooses to deal with situations where an
employee has lost or caused damage to required PPE should remain the
decision of the employer. The situation is analogous to that
confronting an employer when an employee fails to follow other
safety and health requirements. There are a number of ways to deal
with the problem, depending on the particular workplace,
circumstances surrounding the particular incident, and the
particular employee involved. It is up to the employer to determine
what works best in his or her establishment (Ex. 12:222).
OSHA does not believe this rule would have that effect and
certainly did
[[Page 64356]]
not intend this rule to have that effect. Therefore, OSHA wishes to
emphasize that the rule does not prohibit employers from fairly and
uniformly enforcing work rules within the context of a system of
reasonable and appropriate disciplinary measures to ensure compliance
with this rule. OSHA recommends that employers use employee
disciplinary programs as part of their overall effort to comply with
OSHA standards and establish effective workplace safety and health
programs. This is therefore also the case when employers are providing
PPE to their employees to protect them from workplace injury and
illness. As the Society of Human Resource Management (SHRM) stated:
``An employer has both the right and the obligation (under the OSH Act)
to use disciplinary procedures to ensure compliance with safety and
health requirements'' (Ex. 46: 43, p. 9).
One aspect of ``reasonable and appropriate'' disciplinary measures
is whether they are proportionate to the employee offense. For example,
docking an employee's pay $100 for losing a $10 reflective vest would
not be allowed as, the penalty is unreasonably disproportionate to the
cost of the PPE. Likewise, requiring an employee to repay the full cost
of a lost PPE item within days of its expected replacement date is not
a fair policy and would not be allowed. Disciplinary systems must be
implemented consistently for all employees, regardless of rank or role.
Disciplinary systems that circumvent the PPE payment requirements and
shift payment to employees when the PPE is not lost or intentionally
damaged will be considered a violation of the standard. Finally,
employers must take precautions to assure that disciplinary systems are
not administered in a manner that infringes upon an employee's rights
under the OSH Act.
The use of disciplinary systems is also recognized by employees as
a valid means for dealing with PPE loss and abuse issues. In discussing
situations where employers require that employees pay for lost
equipment, Jacqueline Nowell, representing the UFCW, stated that
management has full run of the plant and is permitted and capable of
coming up with disciplinary policies (Tr. 216). Similarly, George
Macaluso of the Laborer's Health and Safety Fund stated ``If an
employer has a problem with a particular worker repeatedly losing or
damaging equipment, that's a management or disciplinary issue, not a
matter under OSHA's jurisdiction'' (Tr. 274). Further, Robert Krul of
the Building Construction Trade Department's (BCTD) Safety and Health
Committee, in discussing equipment abuse by employees, stated that
management ``[e]ven has the right under our collective bargaining
agreements in the management's rights clause to instill reasonable and
fair rules, regulations, and disciplines on a job site that govern use
of such equipment.'' Mr. Krul related an incident involving the blatant
abuse of fall protection equipment:
Now there is the odd case of, you know, somebody used as it was
in the case of Roberts Roofing where an employee was seen using a
safety harness to tow a pick up truck. Well, good Lord. I mean,
you're the owner of the company and you see somebody abusing a piece
of safety equipment like that. I'd either fire the guy or make sure
he got his first notice of disciplinary action. What difference does
it make if it's PPE or if it's one of his expensive tools on the
job? If it's abuse of company property, it's abuse of company
property. And that goes to the heart of reasonable, fair discipline,
rules and regulations (Tr. 315-316).
OSHA has always encouraged employers to exercise control over the
conditions at their workplace. OSHA also notes, as discussed in the
preamble to the bloodborne pathogens standard, that disciplinary
programs are not the only alternative employers can use to encourage
employees to follow their PPE policies. Positive reinforcement
approaches, the individual employee's performance evaluation, or
increased education efforts, can also be used by employers to improve
compliance and reduce employee misconduct (56 FR 64129).
OSHA sets forth much of its policy for evaluating the effectiveness
of employers' safety and health programs in its Voluntary Protection
Programs, or VPP. In 1989, OSHA issued voluntary guidelines for safety
and health programs. In several sections of the Federal Register notice
(54 FR 3904-3916) announcing the guidelines, OSHA stressed the need for
effective, fair disciplinary programs. For example, OSHA stated that:
When safe work procedures are the means of protection, ensuring
that they are followed becomes critical. Ensuring safe work
practices involves discipline in both a positive sense and a
corrective sense. Every component of effective safety and health
management is designed to create a disciplined environment in which
all personnel act on the basis that worker safety and health
protection is a fundamental value of the organization. Such an
environment depends on the credibility of management's involvement
in safety and health matters, inclusion of employees in decisions
which affect their safety and health, rigorous worksite analysis to
identify hazards and potential hazards, stringent prevention and
control measures, and thorough training. In such an environment, all
personnel will understand the hazards to which they are exposed, why
the hazards pose a threat, and how to protect themselves and others
from the hazards. Training for the purpose is reinforced by
encouragement of attempts to work safely and by positive recognition
of safe behavior.
If, in such a context, an employee, supervisor, or manager fails
to follow a safe procedure, it is advisable not only to stop the
unsafe action but also to determine whether some condition of the
work has made it difficult to follow the procedure or whether some
management system has failed to communicate the danger of the action
and the means for avoiding it. If the unsafe action was not based on
an external condition or a lack of understanding, or if, after such
external condition or lack of understanding has been corrected, the
person repeats the action, it is essential that corrective
discipline be applied. To allow an unsafe action to continue not
only continues to endanger the actor and perhaps others; it also
undermines the positive discipline of the entire safety and health
program. To be effective, corrective discipline must be applied
consistently to all, regardless of role or rank; but it must be
applied.
In 2000, OSHA issued revisions to the Voluntary Protection Programs
(64 FR 45649-45663), which included the following element of an
effective safety and health program:
c. Hazard Prevention and Control. Site hazards identified during
the hazard analysis process must be eliminated or controlled by
developing and implementing the systems discussed at (2) below and
by using the hierarchy provided at (3) below.
(1) The hazard controls a site chooses to use must be:
(a) Understood and followed by all affected parties;
(b) Appropriate to the hazards of the site;
(c) Equitably enforced through a clearly communicated written
disciplinary system that includes procedures for disciplinary action
or reorientation of managers, supervisors, and non-supervisory
employees who break or disregard safety rules, safe work practices,
proper materials handling, or emergency procedures * * * [sections
(2) and (3) include information on hazard control systems and the
hierarchy of controls].
Further, the VPP policies and procedures manual (CSP 03-01-002 03/25/
2003) advises the OSHA team reviewing a VPP applicant's safety and
health program that:
A documented disciplinary system must be in place. The system
must include enforcement of appropriate action for violations of the
safety and health policies, procedures, and rules. The disciplinary
policy must be clearly communicated and equitably enforced to
employees and management. The disciplinary system for safety and
health can be a sub-part of an all-encompassing disciplinary system.
Thus, employers that do not have reasonable and appropriate safety and
[[Page 64357]]
health disciplinary systems are denied entry into the VPP program. As
these longstanding policies display, OSHA not only allows employers to
have disciplinary programs, the Agency encourages employers to have
such programs and to manage them in a manner that supports occupational
safety and health objectives.
OSHA has emphasized through its enforcement policies that employers
must exercise control over the working conditions at their workplace.
OSHA's Field Inspection Reference Manual (FIRM) CPL 2.103 (Sept. 26,
1994) is OSHA's primary reference document identifying the Agency's
field office inspection responsibilities. It provides OSHA's field
staff, including Compliance Safety and Health Officers (CSHOs) with
direction on the Agency's inspection procedures, documentation
requirements, citation policies, abatement verification procedures, and
other procedures and policies needed to implement an effective and
consistent national enforcement policy while providing needed latitude
for local conditions.
The FIRM specifically recognizes the role of disciplinary programs
that employers use to ensure that their employees follow adequate
workplace safety and health rules. These programs may be used to
establish the unpreventable employee misconduct defense to a citation
issued against the employer for conditions violative of the OSH Act
(CPL 2.103 section 7 ch. III C.8.c.1.).
The Firm explains that ``unpreventable employee misconduct'' is an
``affirmative defense,'' which is defined as ``any matter which, if
established by the employer, will excuse the employer from a violation
which has otherwise been proved by the CSHO.'' In other words, if the
employer can prove each and every element of an affirmative defense to
OSHA, the Agency may decide that a citation is not warranted. The
elements of this defense, as set forth by the Review Commission and the
courts, are that the condition that violated an OSHA standard was also
a violation of the employer's own work rule, that the violation would
not have occurred if the employee had obeyed the employer's work rule,
that the employer's work rule was effectively communicated to the
employee, and the employer's work rule was uniformly enforced by the
employer. OSHA believes that an important aspect of exercising control
over the workplace is the effective training and supervision of
employees.
3. Replacement Schedules and Allowances
Several commenters raised issues related to regular replacement
schedules and allowances used to replace PPE (See, e.g., Exs. 12: 153,
188; 46: 43). The SHRM recommended that employers be allowed to set a
pre-determined service life for PPE, and limit replacement of PPE to
situations that involve normal wear and tear through a pre-determined
length of time, stating that:
Employers that provide PPE should be able to develop rules that
take into account the service life of the PPE. Employers should not
be required to pay for PPE and all replacements, regardless of
whether service life has been met. Misuse and neglect will greatly
shorten the service life of any PPE. Employers often pay for PPE and
HR [human resources] professionals should be allowed to require
employees to pay for their own replacement if such a replacement is
needed prior to expiration of the equipment's service life. The
purpose of such an approach would be to provide an incentive for
employees to take better care of their equipment (Ex. 46: 43, p.
10).
In a similar comment, the Sheet Metal and Air Conditioning
Contractors National Association suggested inserting language requiring
employees to pay for replacement PPE if it has been lost or damaged
``[b]efore it has been used for its minimum anticipated use period, as
determined by the employer and/or manufacturer * * *'' (Tr. 92-93). The
ISEA stated that:
It is important that any item of PPE be replaced immediately
when an inspection reveals that it is damaged or no longer meets its
intended use. Manufacturers provide guidelines to assist in making
this determination. Employers should pay for these replacements
under the same terms as they provide initial issue of PPE. Some
companies provide an annual PPE benefit to employees based on
expected use of PPE under normal conditions. If this amount is
exceeded, employees would have to pay for replacement only if it is
their fault for it being lost or damaged. The employer can, of
course, pay more than this annual amount when circumstances warrant.
Such a system would eliminate abuse of the program (Ex. 12: 230).
OSHA does not object to allowances as a means of paying for PPE, as
long as the allowance policy assures that employees receive replacement
PPE at no cost as required by the final rule. As several commenters
noted, this is a common practice, and it appears that in many cases it
is an effective and convenient method for providing PPE at no cost to
employees.
Allowance systems are based on the expected service life of the
PPE. The Screenprinting and Graphics Imaging Association (SGIA) noted
several factors involved in service life estimation, stating that:
Each worksite and employer would need to include in their PPE
assessment, when and how PPE will be replaced. The employer needs to
find what factors are and/or will be present at the worksite to
cause the normal wear and tear and/or immediate damage to the PPE
specified. Anything outside the guidelines of the established
factors should require the employee to incur the replacement costs.
However, a periodic evaluation of the PPE specified, the PPE
assessment, and the factors regarding replacement, need to be
performed in order to ensure that a reasonable and appropriate
system is always in place (Ex. 11: 116).
OSHA believes that the expected service life for any PPE depends on
several factors, and the manufacturer's recommendation is only one
factor. OSHA believes other factors, such as the working conditions
under which the PPE is used, the probability of workplace incidents
damaging the PPE or making it otherwise unable to protect the employee,
misuse, and any other conditions relevant to the worksite and the use
of the PPE are highly relevant. OSHA does not object to employers
considering expected service life in an allowance system. However, such
systems must ensure that replacement PPE is provided at no cost to
employees. In addition, these employers must have systems in place to
deal with situations where PPE is damaged at work (e.g., accidents) or
lasts for a period shorter than the expected service life due to
conditions other than loss or intentional damage.
Additionally, the Agency wants to be clear that the rule would not
require that the employer provide and pay for replacement PPE whenever
requested by an employee, as was the concern of one commenter (Ex. 46:
43, p. 8). If an employee requests replacement PPE, the employer should
evaluate the PPE in question to determine if, in its present condition,
the PPE provides the protection it was designed to provide. Employees
can be charged for replacement PPE, but only when the PPE is lost or
intentionally damaged by the employee.
OSHA notes that some employers currently convey ownership of PPE to
employees, thus allowing employees to control the use of the PPE both
on and off the job. OSHA's PPE rules require employers to ``provide''
PPE to their employees. OSHA does not require employers to transfer
ownership and control over PPE to employees. Employers are free to
choose that option and others if they so desire. For example, as
pointed out by various commenters, the employer is free to
[[Page 64358]]
prohibit employees from taking employer-owned PPE away from the
workplace and can elect to keep the PPE in question at the
establishment with the use of lockers or other storage mechanisms (Tr.
203, 274, 312-313, 337). The employer may also retain ownership of the
PPE and still allow employees to remove it from the workplace.
In summary, OSHA is requiring employers to pay for the initial
issuance of PPE, as well as its replacement, except when the employee
has lost or intentionally damaged the PPE. Adding regulatory text
addressing the issue of payment for replacement PPE makes an employer's
obligations clear. The rule does not prohibit the employer from using
policies, such as allowances, to fulfill their obligations under the
rule, so long as the policies assure that employees receive replacement
PPE at no cost as required by the final rule. Neither does the rule
prevent employers from fairly and uniformly enforcing work rules to
ensure compliance with this rule. OSHA emphasizes the need for
effective, fair disciplinary programs, as seen in its Voluntary
Protection Programs. OSHA also believes that the rule is consistent
with the duty that employers have with regard to working conditions
because it reserves to them the right to control the use and
maintenance of the PPE that is used at their workplace.
VI. Employee-Owned PPE
The final PPE rule addresses employee-owned PPE in the workplace
and states that, where an employee provides adequate protective
equipment he or she owns, the employer may allow the employee to use it
and is not required to reimburse the employee for it. This is included
in the regulatory text at Sec. 1910.132(h)(6) for general industry,
Sec. 1915.152(f)(6) for shipyard employment, Sec. 1917.96(f) for
longshoring, Sec. 1918.106(f) for marine terminals, and Sec.
1926.95(d)(6) for construction. The final rule also makes clear that
employers shall not require employees to provide or pay for their own
PPE, unless specifically excepted by the other provisions of the rule.
This will prevent employers from avoiding their obligations under the
standard by requiring their employees to purchase PPE as a condition of
employment or placement.
This provision was not specifically included in the proposed rule.
However, OSHA never intended in the proposed rule to prevent employees
from voluntarily using PPE they own, so long as the PPE is adequate to
protect them from hazards. Furthermore, OSHA did not intend for
employers to have to reimburse employees for equipment that they
voluntarily bring to the worksite and wish to use. A number of
commenters to the proposal questioned OSHA's position regarding
equipment owned by employees. This addition to the final rule is a
reaction to these comments and clearly sets forth an employer's
obligations with respect to employee-owned PPE. OSHA explains this
provision and addresses relevant comments below.
A. Employer Responsibility To Ensure ``Adequate Protective Equipment''
It is important at the outset to set forth an employer's existing
obligations under OSHA standards with respect to employee-owned PPE.
OSHA's current general industry standard states, ``[w]here employees
provide their own protective equipment, the employer shall be
responsible to assure its adequacy, including proper maintenance, and
sanitation of such equipment'' (29 CFR Sec. 1910.132(b)). The
construction standards contain similar language in Sec. 1926.95(b).
These provisions ensure that all PPE used by employees has been
evaluated and is adequate to protect the employee from hazards in the
workplace. OSHA will not allow employers to escape their ongoing
responsibility to assure that PPE used at their workplace is adequate
simply because an employee may own the protective equipment. If that
were permitted, employees would receive less effective PPE protection.
To recognize an employer's fundamental obligation to ensure that
PPE used is adequate to protect affected employees, the final PPE
payment rule refers to the employee providing his or her own ``adequate
protective equipment.'' OSHA has included this phrase to ensure that
employee-owned PPE is used only where the PPE is adequate to protect
the employee from hazards in the particular workplace where it is being
used. Furthermore, references to Sec. Sec. 1910.132(b) and 1926.95(b)
remain in the general industry and construction standards to ensure
that when employers allow employees to use personally-owned PPE at
work, the employer evaluates the PPE to make sure that it is adequate
to protect employees, that it is properly maintained, and that it is
kept in sanitary condition.\4\ While the maritime standards in Parts
1915, 1917, and 1918 do not contain explicit language concerning
employee-owned PPE as in Sec. Sec. 1910.132(b) and 1926.95(b), the
final PPE payment rule contains the phrase ``adequate protective
equipment'' as a pre-requisite to use of the employee-owned PPE in the
affected maritime workplaces. It is the Agency's position that when
allowing the use of employee-owned PPE in the maritime setting, the
employer is still obligated to ensure that the PPE used is appropriate
and adequately protective of employees. These obligations are inherent
in the requirement that the employer ``provide'' PPE. Several of the
PPE provisions in the maritime standards also specifically require that
employers ensure the use of ``appropriate'' PPE. (See, e.g., 29 CFR
1915.152(a) (``The employer shall provide and shall ensure that each
affected employee uses the appropriate personal protective equipment *
* *.''))
---------------------------------------------------------------------------
\4\ Use of the word ``sanitary'' does not indicate that the
Agency expects PPE to be maintained at a level approaching
``hospital clean.'' ``Sanitary condition'' simply means that the PPE
must be kept at a level of cleanliness such that it does not present
a health hazard to the employee who is using it.
---------------------------------------------------------------------------
B. Employees Who Already Own PPE
The most common situation where employers may encounter employee-
owned PPE is when newly hired employees report to the worksite with
their own PPE. The employee may have been given the PPE by a former
employer, may have purchased the PPE for a prior job or because of a
personal preference for certain features or aesthetics, may have
obtained the PPE from a friend or relative who no longer needed it, may
have obtained PPE while in an educational program, or from some other
source. This occurs in many industries but seems to be found more
frequently in workplaces that use short-term labor.
OSHA recognizes that employees who change employers frequently may
want to carry their PPE from job to job. Underlying reasons for this
can include that the employee will be familiar with the PPE, will have
``broken it in,'' and especially if the employee purchased the PPE,
will have the equipment that he or she prefers and finds the most
comfortable and aesthetically pleasing. This practice is common in the
construction, marine terminal, and shipyard industries, as well as
workplaces employing individuals from temporary help services.
(Application of the standard in these industries is addressed in more
detail in the following section.)
As discussed previously and noted by many commenters, in some
trades, industries, and/or geographic locations, PPE for employees who
frequently change jobs can take on some of the qualities of a ``tool of
the trade.'' In other words, the PPE is an item that the employee
traditionally keeps with his or
[[Page 64359]]
her tool box. This may be because the PPE is used while performing some
type of specialized work, such as welding or electrical work, or
because it is a tradition in the industry, such as in home building.
OSHA has not included an exception to the payment requirement for tools
of the trade because, among other things, of the difficulty of
defining, with adequate precision, when an item of PPE is or is not a
tool of the trade. However, because the rule does not require employers
to reimburse employees for PPE they already own, it recognizes that
some employees may wish to own their tools of the trade and bring that
equipment to the worksite.
OSHA has further emphasized in the regulatory text that employees
are under no obligation to provide their own PPE by stating that the
employer shall not require an employee to provide or pay for his or her
own PPE, unless the PPE is specifically excepted in the final rule.
These provisions address the concern that employers not circumvent
their obligations to pay for PPE by making employee ownership of the
equipment a condition of employment or continuing employment or a
condition for placement in a job. OSHA recognizes that in certain
emergency situations, such as response to a natural disaster, where
immediate action is required, it may be necessary for employers to hire
or select employees already in possession of the appropriate PPE. As a
general matter, however, employers must not engage in this practice.
Taking PPE-ownership into consideration during hiring or selection
circumvents the intent of the PPE standard and constitutes a violation
of the standard.
C. Employer Ownership and Control Over PPE
When employers purchase PPE, they often retain ownership. In this
situation, they ``provide'' the PPE to the employee without conveying
ownership to the employee. This is similar to ``providing'' an employee
a tool to use, a lift truck to drive, or a company automobile.
In some workplaces that follow this approach, the PPE is kept in
on-site lockers or other storage facilities to prevent employees from
using the PPE off the job, to avoid loss or damage to the PPE, to
prevent contaminants from leaving the workplace on or in equipment, or
simply as a convenience. In other workplaces, the employer purchases
the PPE, retains ownership of the equipment, but allows (or even
requires) the employee to remove the PPE from the worksite and return
with it when it is next needed to protect against a hazard. In either
case, when the employer retains ownership of the PPE, the employer has
the right to control the use of the PPE, just as he or she would
control any other equipment, tools, parts, or facilities that he or she
owns.
Some commenters to the rulemaking questioned whether employers had
the right to recover PPE once the employee no longer works for the
providing employer. The NAHB asserted that ``[i]f an employer issues
equipment that they have paid for, then they should expect to get it
back; if not, the employer must be permitted to charge for the
equipment'' (Ex 12: 68). A number of commenters asked if they could
require employees to provide a deposit that would be returned when the
employee returned the PPE (See, e.g., Exs. 12: 12, 44, 68, 140, 153,
154, 165, 203). The Associated Building and Contractors, Inc. (ABC)
stated that:
[t]here are cases of the short-term employee, i.e., the person who
is hired, given $150.00 plus in safety apparel, then decides
construction is not for him or her and leaves the next day. For this
reason, the employer should be allowed to require a deposit from
short-term and temporary employees, to be refunded when the
equipment is returned in satisfactory condition (Ex. 12: 153).
William McGill of the International Brotherhood of Electrical Workers
described one such deposit system during his testimony. His bargaining
unit reached an agreement with the company in which the employees put
down a security deposit for their hard hats, and when they leave the
company, the deposit is refunded when the hard hat is returned (Tr.
588-590).
After considering these comments, OSHA recognizes the concern of
employers and addresses it as follows. If the employer retains
ownership of the PPE, then the employer may require the employee to
return the PPE upon termination of employment. If the employee does not
return the employer's equipment, nothing in the final rule prevents the
employer from requiring the employee to pay for it or take reasonable
steps to retrieve the PPE, in a manner that does not conflict with
federal, state or local laws concerning such actions. In these
situations, OSHA notes that the employer is not allowed to charge the
employee for wear and tear to the equipment that is related to the work
performed or workplace conditions. As suggested by National Tank Truck
Carriers, Inc., a written agreement, for example, between the employer
and employee on the matter may be an effective method of ensuring that
the employer's expectations of the employee are clear and unambiguous
(Ex. 12: 12). Another acceptable alternative is a deposit system that
provides an incentive for employees to return the equipment. However,
the Agency cautions that the deposit system must not be administered in
a fashion that circumvents the rule and results in an employee
involuntarily paying for his or her PPE.
In some situations, an employer may prohibit an employee from using
PPE that the employer has paid for while working for another employer
or for personal purposes. Conversely, an employer may allow an employee
to use employer-owned PPE while working for another employer or for
personal purposes. Since the employer has retained ownership of the
PPE, he or she can stipulate where it is used. OSHA does not object to
either of the aforementioned practices.
The VPPPA noted that their member firms promote off-the-job safety
by encouraging employees to use PPE while performing personal tasks,
when the PPE is suitable for such use and the employer has given
permission (Ex. 12: 113). OSHA recognizes the benefit of the policy
articulated by VPPPA. If employees utilize PPE consistently at work and
at home, its use is likely to become more natural, or ``second nature''
to the employee, and PPE compliance at work may be improved. Another
means of improving compliance is for employers to develop clear
policies for PPE, i.e., specific procedures for use, maintenance,
storage, and so forth. The employer should communicate these policies
clearly to employees, ensuring that they are understood and followed. A
reasonable approach to conveying this information would be to include
training material covering these topics when conducting the mandatory
PPE training.
While OSHA anticipates that most PPE will be purchased by and
remain the property of the employer, OSHA foresees some employers
conveying ownership of the PPE to their employees. Many commenters
argued that employees take better care of PPE that they actually own
(See, e.g., Exs. 12: 112, 154, Tr. 547, 679). While employers are
required to pay for PPE, OSHA does not object to employers transferring
ownership of the equipment to employees.
D. Upgraded and Personalized PPE
In some workplaces, an employer may allow an employee to
``upgrade'' or personalize their PPE, thereby obtaining PPE beyond what
the employer is required to purchase. Issue seven of the proposal
addressed this situation, i.e.,
[[Page 64360]]
an employee who prefers more costly PPE than that provided by the
employer. The proposal asked, ``If an employee wants to use more costly
PPE because of individual preference, should that employee be
responsible for any difference in cost? Is there evidence that such
``individualized'' PPE has caused safety problems in the past?'' (64 FR
15416).
OSHA received many comments on this issue. Several commenters
stated that if an employee wants more expensive equipment, they should
pay for the difference in costs (See, e.g., Exs. 12: 17, 50, 52, 68,
99, 107, 145, 152, 172, 188, 201, 217, 228, 230). Some commenters
argued that if employees want more costly PPE than that which the
employer is providing, they should be responsible for the entire cost
of the PPE (See, e.g., Exs. 12: 65, 79, 107, 110, 114, 150). Other
commenters argued that employers should pay for PPE which the employee
prefers, so employees will have PPE that fits better, is more
comfortable, and is more likely to be used (See, e.g., Ex. 12: 134,
218). Some thought that the purchase of upgraded or more costly PPE
should be at the discretion of the employer (See, e.g., Exs. 12: 3,
114, 183), or alternatively that employees may upgrade their PPE, but
the employer need not allow the use of that PPE at the workplace (Ex.
12: 183). Some argued that individual preference does not justify an
OSHA rulemaking effort but is better left to employer and employee
mutual agreement (See, e.g., Exs. 12: 144, 190). The International
Brotherhood of Teamsters (IBT) suggested that:
A worker's request for more expensive PPE, to replace an ill-
fitting PPE or one made of material that a worker may be allergic
to, should be judged on safety and health grounds, not on an
aesthetic basis. To the extent that an employee's preference is
consistent with these OSHA requirements, the employer should
accommodate any added cost. Outside this domain, the matter of
payment for more costly PPE of employee's choice should rest on
union agreements (Ex. 12: 190).
The American Association of Airport Executives recommended that ``[a]n
employer should not be responsible for the additional cost resulting
from an employee's preference for a costly, but no more effective PPE
product. If employees want more expensive PPE, they should either pay
for it or obtain it through collective bargaining'' (Ex. 12: 217).
OSHA agrees that it needs to clearly set forth an employer's
obligation with respect to upgraded or personalized PPE. First, the
language that OSHA has included in the final standard to address PPE
owned by employees applies equally to upgraded or personalized PPE
purchased by employees. When an employee owns a certain type of
upgraded PPE and wishes to use it on the jobsite rather than using the
PPE provided by the employer, the employer is not required to reimburse
the employee for that PPE, pursuant to the employee-owned exception
discussed above.
Second, OSHA clarifies that an employer is not required to pay for
upgraded or personalized PPE requested by an employee, provided the
employer provides adequate ``basic'' PPE to the employee. Under the
current standards, employers must provide PPE that protects against
hazards in the workplace. Allowing the use of other PPE that the
employee may prefer or that provides features beyond those necessary
for employee protection from workplace hazards remains at the
discretion of the employer. If an employee requests some specialized
PPE in place of the PPE provided by the employer,\5\ the employer may
allow the employee to acquire and use the PPE, but the employer is not
required to pay for it. If the employer allows upgrades or personalized
PPE, he or she is still required to evaluate the PPE to make sure that
it is adequate to protect the employees from the hazards in the
particular workplace, is properly maintained, and is kept in a sanitary
condition. As stated by the SGIA:
---------------------------------------------------------------------------
\5\ OSHA does not require employers to keep records of
employees' requests to use their own PPE. OSHA believes that if
information about such requests is needed by the Agency, its
inspectors can gather such information through interviews and other
standard investigative procedures.
Allowing employees to provide their own PPE can be an acceptable
practice as long as the employees are provided the PPE assessment
for their workplace and the minimum guidelines for the selection of
the PPE * * * A potential problem arises when no standards are set
and no system is in place accounting for employee vs. employer PPE,
in that reimbursement claims for PPE often lead to disputes between
---------------------------------------------------------------------------
employee and employer (Ex. 12: 116).
SGIA's comment raises an important point about setting standards.
Employers are encouraged to set specific policies for PPE upgrades and
employee-preferred PPE and to communicate these policies clearly to
employees, in order to minimize disputes.
Third, if an employer uses an allowance system to provide and pay
for PPE, he or she is only required to provide to the employee the
amount of money required to purchase ``basic'' PPE that protects
against hazards in the workplace. If the employer allows employees to
take the allowance and use it toward the purchase of acceptable, but
upgraded or personalized PPE, that is permissible under the final rule.
In this instance, OSHA stresses that the employer is only responsible
for the cost of the ``basic'' PPE.
Another issue related to upgrading and personalizing PPE is
allowing employees to choose PPE from an array of equipment. The VPPPA
suggested that OSHA require employers to provide an adequate selection
of appropriate PPE, so each employee will find equipment that is
comfortable, functional, and sized appropriately (Ex. 12: 113). While
ORC agreed that the arrangements for paying for more expensive PPE
should remain the decision of the employer, they also noted that
``[e]xperienced employers are * * * aware that, where possible, it is
desirable to offer employees an opportunity to select from an array of
equally-effective PPE types. This not only helps to ensure that an
employee is issued PPE that is both effective and comfortable, but
encourages acceptance and use of the PPE by that employee'' (Ex. 12:
222). Corrado & Sons, Inc. noted that they have a safety committee
which allows the employees to select PPE that is the safest and most
comfortable to use (Ex. 12: 48).
OSHA agrees that providing a selection of PPE is a good practice
which may improve employee acceptance and use of the equipment.
Employers are encouraged to consider offering a selection of PPE to
their employees as a ``best practice'' that will help to improve the
effectiveness of their safety and health programs. In fact, OSHA's
respirator and noise standards require employers to provide a selection
of equipment from which employees may choose (See Sec. 1910.95(i)(3)
and Sec. 1910.134(d)(1)(iv)). Most of OSHA's standards, however, do
not contain this type of requirement. Instead, most OSHA standards
generally require that the PPE fit the employee properly (See, e.g.,
Sec. 1910.132(d)(iii), Sec. 1915.152(b)(3), and Sec.
1926.102(a)(6)(iii)).
OSHA is not requiring employers to provide a selection of PPE from
which employees may choose their equipment beyond the existing
requirements in the respirator and noise standards, because that action
is beyond the scope of this rulemaking. Where an employer is not
required to offer a selection of equipment, the PPE provided must
nonetheless be properly suited to protect against the hazards of the
workplace and must fit the employee.
[[Page 64361]]
Ill-fitting PPE may not serve its intended purpose and could put the
employee at risk of injury, illness, or death. Accordingly, employers
are urged to review the PPE manufacturer's instructions, which often
provide additional information regarding appropriate selection and fit
of PPE.
Some commenters noted that they were not aware of any problems with
substandard PPE or safety problems from individualized PPE (See, e.g.,
Exs. 12: 9, 17, 52, 68, 233). Other commenters worried that allowing
employees to select their own upgraded or personalized PPE could cause
problems (See, e.g., Exs. 12: 32, 113, 116; Tr. 593, Tr. 178, Tr. 371).
The AAOHN observed that:
Allowing individual preference for PPE could create safety
problems if the minimal requirements for PPE are not clearly stated.
One [AAOHN] member reported a situation where a manufacturing
facility allowed individual preference for safety eyewear and found
that 70 percent of the female employees wore glasses without safety
lenses. At a very minimum any PPE to be used must be approved by the
employer. More significantly, allowing individual preference for PPE
may pose administrative and enforcement problems for employers.
Allowing individual preference for PPE may make training and
compliance more complicated for employers (Ex. 12: 32).
Similarly, the VPPPA noted that employee-owned equipment can be
less protective, noting that ``PPE selection can be a very technical
task. Safety and health staff often review extensive data and varieties
of equipment options before making their selection. In certain cases,
employees may waive functionality in lieu of cost, comfort and style.
PPE selection must begin with the hazard assessment and the resulting
data used to identify the PPE best designed for worker protection''
(Ex. 12: 113).
It is the Agency's position that upgraded and personalized PPE will
not provide less protection as long as employers meet their obligation
to perform a hazard assessment and ensure the PPE's adequacy, including
proper maintenance, and sanitation of such equipment. To facilitate the
selection of appropriate PPE, employers are encouraged to set clear
guidelines and policies regarding PPE and to communicate these
standards to employees.
VII. Industries and Employees Affected by the Standard
The final rule incorporates PPE payment provisions into the OSHA
standards applicable to general industry (29 CFR part 1910),
construction (29 CFR part 1926), shipyards (29 CFR part 1915),
longshoring (29 CFR part 1917), and marine terminals (29 CFR part
1918).\6\
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\6\ Some employees in agriculture are covered by two general
industry standards, the logging standard (29 CFR 1910.226) and the
cadmium standare (29 CFR 1910.1027), which specifically require
employers to pay for required PPE. (the Logging boots specified in
Sec. 1910.266(d) (l)(v), are exempted from the requirements of this
standard). The PPE requirements in these two standards will continue
to apply in agriculture.
---------------------------------------------------------------------------
OSHA's proposal included specific questions about how to apply the
PPE payment standards in these industries (61 FR 15416). Many
commenters raised additional questions about how the standard would
apply to independent contractors, subcontractors, and employees
obtained through temporary help services. Caterpillar Inc. commented
that ``Employment relationships are becoming more complex, and OSHA
must recognize the variety of relationships which are now common in
industry'' (Ex. 12: 66, p. 4). ORC commented:
``[e]mployers are more likely to provide protective equipment,
including personal protective equipment, for any employee with whom
they have a traditional employment relationship. The issue of
responsibility for payment becomes more problematic, however, when
contract work, temporary employees, and clothing that is subject to
both work and personal use are involved (Ex. 12: 222, p. 2).
OSHA agrees with commenters that a number of nontraditional
employment relationships exist in today's workplaces. This section will
address these relationships and the more common employment scenarios
raised by commenters. However, OSHA wishes to emphasize the fundamental
application of the final rule: It applies in the industries above to
any employer with an employee regardless of whether the employee is
full-time, part-time, temporary, short-term, or working under any other
type of arrangement that results in an employer-employee relationship
under the OSH Act.
A. OSH Act Definition of Employee
Implementing the PPE payment requirements, as with any of OSHA's
regulations and standards, begins with the identification of an
employer and an employee as defined by the OSH Act.\7\ Whether an
employer-employee relationship exists under the Act is determined in
accordance with established common law principles of agency. It is
important to note that the employer-employee relationship for purposes
of complying with this final rule is to be analyzed no differently than
it is for any other OSHA standard.
---------------------------------------------------------------------------
\7\ The statute defines ``employee'' as ``an employee of an
employer who is employed in a business of his employer which affects
interstate commerce'' (29 U.S.C. 652(6)). The term ``employer''
means ``a person engaged in a business affecting interstate commerce
who has employees'' (29 U.S.C. 652(5)). The term ``person'' includes
``one or more individuals, partnerships, associations, corporations,
business trusts, legal representatives, or any organized group of
persons'' (29 U.S.C. 652 (4)).
---------------------------------------------------------------------------
The criteria for determining the existence of an employer-employee
relationship in common law are discussed in Nationwide Mutual Insurance
Company v. Darden, 503 U.S. 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581
(1992) and Community for Creative Non-Violence v. Reid, 490 U.S. 730,
109 S. Ct. 2166 (1989). The cases held that the following criteria are
to be considered in determining whether there is an employer-employee
relationship.
1. The right to control the manner and means by which work is
accomplished.
2. The level of skill required to perform effectively.
3. Source of required instruments and tools.
4. Location of work.
5. Duration of relationship between parties.
6. The right of the employer to assign new projects to the
individual.
7. The extent of the individual's control over when and how long to
work.
8. Method of payment.
9. The individual's role in hiring and paying assistants.
10. Whether work is the regular business of the employer.
11. Whether the employer is in business.
12. The provision of employee benefits.
13. The tax treatment of the individual.
The nature and degree of control asserted by the hiring party over
the means and methods of how the work is to be performed remains a
principal guidepost. Clackamas Gastroenterology Assocs. P.C. v. Wells,
123 S. Ct. 1673, 1679 (2003). OSHA instructs its safety and health
inspectors ``Whether or not exposed persons are employees of an
employer depends on several factors, the most important of which is who
controls the manner in which the employees perform their assigned work.
The question of who pays these employees may not be the determining
factor.'' (OSHA Field Inspection Reference Manual CPL 2.103, Section
7--Chapter III. Inspection Documentation).\8\
---------------------------------------------------------------------------
\8\ The preamble to the 29 CFR Part 1904 injury and illness
recording and reporting regulation issued in 2001 addressed a number
of these issues (66 FR 5916 6135). To ensure accurate recording and
reporting, OSHA directed, that the employer record on the OSHA 300
Log the recordable injuries and illnesses of all employees on their
payroll, whether they are hourly, salary, part-time, seasonal or
migrant employees. OSHA also directed the employer to record the
recordable injuries and illnesses that occur to employees who are
not on their payroll if the employer supervises these employees on a
day-to-day basis. Thus if an employer obtains employees from a
temporary help service, employee leasing service, or personnel
supply service, the employer must record these injuries and
illnesses if the employer supervises these employees on a day-to-day
basis.
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[[Page 64362]]
Thus, employers must examine whether the employment relationships
they have make them ``employers'' of ``employees'' under the Act. If
they are, they must ensure that PPE is provided to their employees at
no cost, unless specifically excepted in the final rule.
B. Self-Employed Independent Contractors
A truly self-employed ``independent contractor,'' is not an
``employee'' under the OSH Act and is not provided the protections of
the OSH Act, and is not covered by the OSHA standards. Therefore, an
employer who has contracted with that individual for services is not
required to pay for that individual's PPE. Other individuals, who are
not considered to be employees under the OSH Act are unpaid volunteers,
sole proprietors, partners, family members of farm employers, and
domestic employees in a residential setting. (See 29 CFR 1975.4(b)(2)
and Sec. 1975.6 for a discussion of the latter two categories.) As is
the case with independent contractors, no employment relationship
exists between these individuals and the hiring party, and
consequently, no PPE payment obligation arises.
However, a self-employed independent contractor may become an
employee of the hiring party, even if only temporarily. The label
assigned to an employee is immaterial if it does not reflect the
realities of the relationship. For example, an employment contract that
labels a hired employee as an independent contractor will not
necessarily control if in fact the hiring employer exercises day-to-day
supervision over that employee, including directing the worker as to
the manner in which the details of the work are to be performed, when
it is to be performed, and so forth. Thus, depending on the nature and
degree of control asserted over the means and methods of how the work
is to be performed, the hiring employer may be responsible for
compliance with OSHA standards, including providing PPE to that
individual at no cost.
C. Temporary Help Services and Subcontractors
Several commenters asked OSHA to clarify application of the PPE
payment requirements to temporary help services (See, e.g., Exs. 12:
66, 104, 145, 164) and subcontractors (See, e.g., Exs. 12: 3, 9, 15,
28, 58, 66, 129, 222).
With respect to temporary help services, some commenters stated
that ``using firms'' should not pay for required PPE. Caterpillar, Inc.
stated that:
[T]emporary workers, who are supervised by Caterpillar
supervisors, often perform production, maintenance and service
operations. The fact that we supervise these temporary employees
makes them Caterpillar employees by OSHA definitions and enforcement
policy. 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. Caterpillar may
occasionally provide specialized PPE for specific tasks and any
specialized PPE we provide would be recovered when the temporary
employees move to another job. Complicating this issue is the fact
that temporary employees often have employment relationships with
two or more entities. Our temporary employees often have a
relationship with their employment agency or parent firm which may
provide insurance coverage, workers compensation benefits, training,
and basic personal protective equipment. * * * OSHA must exclude
temporary employees from the coverage of the proposed standard, or
require that their current employer only assure that PPE is utilized
and allow industry practice to determine who purchases PPE (Ex. 12:
66).
Those entities that provide temporary employees, however, such as
the National Association of Temporary and Staffing Services (NATSS),
argued that the firm obtaining employees from a temporary help service
(the utilizing employer) should pay for PPE, stating that:
Although temporary staffing firms are employers of the workers
that they send on assignment to a customer's worksite, under long-
standing OSHA policy the primary responsibility for providing and
paying for PPE for such workers falls on the entity that directs and
controls the workers on the worksite on a daily basis. In most
cases, it is the customer that utilizes the workers and directs and
supervises them on a day-to-day basis. Accordingly, in most
temporary help arrangements, the responsibility for providing and
paying for PPE for the temporary workers should rest with the
staffing firm's customer. Requiring the ``utilizing employer'' to
pay for PPE for the workers over whom it exercises day-to-day
control is both in accordance with long-standing OSHA policy and
makes sense from a practical, administrative perspective (Ex. 12:
104).
NATSS also pointed out that the utilizing employer principle is
recognized as state law in California and North Carolina, that OSHA's
injury and illness recordkeeping regulations require the employer
exercising day-to-day supervision over employees to record their
injuries and illnesses, and that OSHA issued a letter of interpretation
in 1985 that made the utilizing employer generally responsible for PPE.
The NATSS further argued that the utilizing employer is in the best
position to know what hazards are present at the worksite and what
safety equipment is needed (Ex. 12: 104).
The process used to determine which entity is the employer of the
employee is similar to the process used to determine if an individual
is an employee or an independent contractor. If the utilizing employer
(the employer that hires the temporary help service) controls the
manner in which the employees perform their assigned work, then he or
she will usually be responsible under the standard for providing PPE at
no cost. Conversely, if the employer providing the labor controls the
work of the employee, independent of the utilizing employer, that
entity will likely be the employer responsible for providing PPE at no
cost. It may even be possible that both employers will be the
``employers'' of the employees, and that both will have a shared
responsibility for providing PPE at no cost. This principle is seen in
the context of the OSHA bloodborne pathogens standard with respect to
which a host employer and an employer supplying employees to the host
employer can have shared responsibilities (See CPL 2-2.69 (Nov. 27,
2001) at X1.B). Even when this is the case, each employer must ensure
that employee protection does not ``slip through the cracks''.
The labor-providing firm and the utilizing firm are free to agree
how to coordinate the provision of PPE at no cost through private
arrangements, for example, by contract. However, employers may not
escape their ultimate responsibilities under the Act by requiring
another party to perform them. If they do so and those duties are
neglected, ultimately the responsibility remains with the employer of
the employees. In other words, employers must ensure that their
employees are provided PPE at no cost, whether they provide it
themselves or have another entity do so. When the employers accomplish
this goal and ensure the employees receive the PPE at no cost, there is
no violation of the standard.
With respect to subcontractors, many commenters requested OSHA to
make clear that host employers/general contractors on multi-employer
worksites
[[Page 64363]]
are not responsible for the payment of PPE for the employees of
subcontractors. In its submission, the Society of the Plastics Industry
recommended that:
OSHA should clarify that contractors are responsible for the
initial purchase and necessary replacement of their own employees'
equipment. For example, if the employee of a contractor arrives at
the host employer's site without the required PPE or is not using
appropriate PPE for the current task, the rule should specify that
the host employer is not responsible for providing and paying for
the contractor employee's PPE and therefore cannot be cited for
failing to do so. The final rule or preamble to the final rule
should clarify this allocation of responsibilities (Ex. 12: 58).
The Dow Chemical Company added that ``[t]he issue of who provides
and pays for such equipment should remain a contractual issue between
the host and contract employer. OSHA should have no role in those
negotiations'' (Ex. 12: 129). ORC noted that:
Host employers have responsibility for ensuring that contractors
are informed of hazards present at the worksite and for making a
determination that the contractors they hire are aware of the
applicable safety and health requirements (including the use of
appropriate PPE) for the work they are to perform. A host employer
has an obligation not to contract with companies or individuals who
clearly do not understand or intend to comply with safety
requirements. And a host employer has an obligation to halt a
contractor's work if the host employer is aware that it is not being
performed in a safe manner (Ex. 12: 222, pp. 3, 4).
OSHA appreciates these comments and is making it clear that, as a
general matter, host employers/general contractors are not responsible
for payment of PPE for the employees of subcontractors at multi-
employer worksites.
OSHA recognizes that under its multi-employer enforcement policy,
certain employers on multi-employer worksites have obligations to
protect the employees of others (See OSHA Directive No. CPL 2-00.124
(Dec. 10, 1999)). This has been a longstanding OSHA enforcement policy,
which flows directly from the OSH Act's requirements that employers are
responsible for creating safe and healthful places of employment.
Notwithstanding this, OSHA finds here that, a host employer/general
contractor is not required to pay for the PPE of a subcontractor's
employees. However, when a host employer/general contractor establishes
an employment relationship with an employee, the host employer/general
contractor must provide the PPE to the employee at no cost. The
obligation to pay for PPE is dependent on the employer/employee
relationship, as described above.
Finally, OSHA stresses effective communication and coordination
between the utilizing, or host firm, and the contractor or temporary
help service. Many employers already share information about these
matters to help each other with their own respective safety and health
responsibilities. Caroline Sherman of Arrow Temporary Services, Inc.,
testified that training responsibility was often shared--her company
would provide general safety and health training (e.g, proper use of
safety equipment) and the utilizing employer would provide site
specific training (Tr. 558-559).
In this final rule, OSHA is not specifying how employers should
coordinate their obligations under the rule. However, the Agency
encourages employing entities, including host employers, contractors,
and temporary help services to communicate and coordinate their
workplace safety and health activities.
D. Part-Time and Short-Term Employees
Many commenters raised concerns related to part-time and short-term
employees (See, e.g., Exs. 12: 3, 18, 46: 6, 11, 16, 26, 32, 44; 46:
21, 25, 29, 37, 38, 50; 47: 1; Tr. 687-688). Short-term employees were
characterized as temporary employees, piece workers, seasonal
employees, hiring hall employees, labor pool employees, and transient
employees. In a representative comment, SHRM stated that:
Even in those cases where an ``employer pays'' approach is shown
to be appropriate for full-time employees, SHRM does not believe
that would be a reasonable mandate to extend to part-time employees,
temporary employees and temporary workers provided by a staffing
service. * * * HR professionals need greater flexibility to set and
administer their PPE payment policies as to part-time employees and
temporary workers. Part-time employees are more likely to work at
several different worksites in a given week, and temporary employees
are more likely to work at several different worksites within a
given month or year. The proposed rule would impose an unfair burden
upon one employer to pay for PPE that an employee may be using at
other employers' worksites at different times within the week or
year. SHRM therefore proposes that required PPE, which is personal
in nature and used by temporary or otherwise non-permanent
employees, should be exempt from the PPE employer pay rule (46: 43).
The Shipyard Council of America (SCA) noted that ``[w]orkers in the
shipyard industry are transient and turnover rates are exceptionally
high. Often employees fail to return the employer's equipment upon
leaving and take the equipment to another worksite, thereby placing an
undue economic burden on shipyard employers'' (Ex. 46: 32). In a
combined comment, the United States Maritime Alliance Limited (USMX)
and the Carriers Container Council, Inc. (CCC) stated that ``In the
marine cargo handling industry [marine terminals and longshoring],
labor pools are often utilized to assign labor to a certain workplace.
It is not uncommon for a single employee to work at a different
employer's facility from day to day or even shift to shift. As such,
the proposed rule raises significant questions concerning compliance
and enforcement within the marine cargo handling industry.'' The NAHB
remarked that:
It is common knowledge that the residential construction
industry, and in fact the construction industry as a whole, is
facing an increasing shortage of qualified labor. To alleviate such
shortages some areas in the country utilize ``piece workers'' to
fill the gap. In the areas where piece workers are used, how will
this rule be enforced? * * * Such companies typically process 15-50
workers in a single week and many of these quit or are terminated
after a short time. It is not uncommon for some workers to be
terminated in a matter of hours (Ex. 12: 68).
The PPE payment provisions apply to all employers under the Act,
including those with short-term employees, whether referred to as
temporary employees, piece workers, seasonal employees, hiring hall
employees, labor pool employees, or transient employees.\9\ As
discussed above, if an employer-employee relationship is established,
then the employer must provide PPE to the employee at no cost. As
discussed earlier, if the individual is not an employee and is actually
a self-employed independent contractor, then the OSH Act does not
apply, and the PPE payment rule also does not apply.
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\9\ For example, OSHA's injury and illness recordkeeping
regulation makes clear that ``All individuals who are `employees'
under the OSH Act are counted in the total; the count includes all
full time, part-time, temporary, and seasonal employees'' (66 FR
5938).
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An issue relevant to part-time and short-term employment is the
issue of employee-owned PPE. The final rule provides that where an
employee provides appropriate protective equipment he or she owns, the
employer may allow the employee to use it and is not required to
reimburse the employee for it. This provision is included in the
regulatory text at Sec. 1910.132(h)(6) for general industry, Sec.
1915.152(f)(6) for shipyard employment, Sec. 1917.96(e) for
longshoring, Sec. 1918.106(e) for marine
[[Page 64364]]
terminals, and Sec. 1926.95(d)(6) for construction. The final rule
also makes clear that employers shall not require employees to provide
or pay for their own PPE, unless specifically exempted. Employers
cannot avoid their obligations under the standard by requiring their
employees to purchase PPE as a condition of employment or placement.
OSHA never intended in the proposed rule to prevent employees from
voluntarily using PPE they already own, however, so long as the PPE was
adequate to protect them from hazards. Furthermore, OSHA did not intend
for employers to have to reimburse employees for equipment that they
voluntarily bring to the worksite and wish to use. OSHA believes that
allowing employees to use equipment they own, as OSHA has always
intended, will alleviate some of the concerns raised by commenters
regarding part-time and short-term employment. Employers who employ
short-term and part-time employees may also require employees to return
employer-owned PPE at the end of the day or when they terminate
employment, and may use a deposit system or other mechanism to help
ensure that their employees return the PPE.
E. Longshoring and Marine Terminals
Longshoring and marine terminal employers and employees are covered
by the OSHA standards at 29 CFR Parts 1917 and 1918. These two
standards work together to regulate safety and health conditions
applying to a single industry--the loading and unloading of ships at
the Nation's ports. The marine terminal standards at Part 1917 apply to
onshore working conditions and the longshoring standards at Part 1918
apply to working conditions onboard vessels such as container ships or
barges.
The proposal noted that the nature of the industry creates
employer-employee relationships unique to each port. At some ports,
employees are hired for one job through a labor pool. At another port,
one employee may work for five different employers in the same week.
The specific questions OSHA asked were: ``How do these factors affect
the issue of who is required to pay for PPE? Does the employer
customarily pay for PPE in the maritime industry? Are there any other
issues unique to the maritime industry that OSHA should consider in
this rulemaking?'' (64 FR 15416).
A number of longshoring and marine terminal interests commented on
the proposed standard (See, e.g., Exs. 12: 14, 17, 172, 173; 13: 7; 45:
35, 40; 46: 4). The most common concern among the marine terminal
commenters was that the use of labor pools and union hiring halls in
the longshoring industry creates special circumstances that would make
the PPE payment standard unworkable (Ex. 12: 14, 172, 173; 13: 7). The
Pacific Maritime Association (PMA) noted that marine cargo handling
employers hire labor on a daily, as needed, basis, through one or more
union locals or dispatch halls operated jointly by PMA and the ILWU
(International Longshore and Warehouse Union). As a result, much of an
employer's workforce changes from shift to shift. The PMA pointed out
that the proposed rule could require an employer to provide and pay for
PPE for each employee on its dock. The PMA also noted the
administrative difficulties in determining whether an employee or
another employer paid for the PPE. The PMA also noted that the role of
an employer association in providing PPE was unclear (Ex. 12: 173).
The South Carolina Stevedores Association remarked that ``Employers
in the Port of Charleston would be forced to maintain equipment
inventories and administer recordkeeping programs on a daily basis to
comply with this proposed rule for a workforce of over one thousand
employees'' (Ex. 12: 14). The NMSA added:
A literal reading of the proposed rule would indicate that the
current employer must be the one who paid for the PPE. Thus, if on
Monday an employee works for employer A, and on Tuesday the employee
works for employer B, employer B must have paid for the PPE the
employee is using on Tuesday. If the employee shows up at workplace
B with PPE paid for by employer A, employer B would be in violation
of federal law. This makes absolutely no sense and is simply
unenforceable. In other words, it is not feasible (Ex. 12: 172, p.
9).
As an initial matter, OSHA notes that the marine cargo handling
industry is not unique in its use of union hiring halls and labor
pools, and that other industries also use these methods to hire
employees, including construction and shipyards. The fact that
employees are obtained from a hiring hall does not change an employer's
obligations under the OSH Act.\10\ Like many others, commenters in the
longshoring industry assumed that the rule would have banned employee-
owned PPE. As explained in the section on employee-owned PPE, an
employer can allow the use of PPE that the employee provides when he or
she arrives at work. Thus, if a port association purchases and provides
the PPE to employees, OSHA does not object. Of course, the employer
must ensure that the type of and condition of the PPE is adequate to
protect the employee against the hazards present in the workplace. The
point of this PPE payment standard is to ensure that the PPE used to
comply with OSHA standards is provided by the employer at no cost to
employees.
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\10\ For example, OSHA's compliance directive CPL 02-01-028--CPL
2-1.28A--Compliance Assistance for the Powered Industrial Truck
Operator Training Standards explains that ``Each employer for whom
an employee works is responsible for ensuring that the employee has
been trained in accordance with the standard. In hiring hall
situations, the training under Sec. 1910.178(l)(3)(i), truck-
related topics, may be conducted by a labor union, joint labor/
management training organization, an association of employers, or
another third-party trainer as long as the person(s) conducting the
training have the knowledge, training, and experience to properly
conduct the training''.
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As the International Union of Operating Engineers (IOUE) noted:
Workers in these industries should have no less protection
because of the nature of the employer-employee relationship in the
ports. It is the IUOE's experience that its members have no desire
to collect closets full of safety-toe footwear and dresser drawers
full of protective prescription eyewear. Employers may inquire if
workers already have suitable steel toe footwear and prescription
eyewear. If so, most workers will gladly use it as they change
employers. If the worker does not have the PPE, then the employer
should pay for it. Over time the cost of paying for PPE should even
out for port employers (Ex. 12: 134).
OSHA has included marine terminal and longshore employers and
employees in the final PPE payment standard. OSHA is confident that the
industry will solve the hiring hall employment problem with this OSHA
standard, just as it has for all other OSHA standards that apply to the
industry. For example, the employers in the industry may work with
their port associations and the hiring halls that provide labor to
coordinate the provision of PPE. OSHA notes that it already has
standards that require employer payment for certain types of PPE. There
is no evidence in the record that employers in the marine cargo
handling industry, or other hiring hall industries, have difficulty
applying these standards to their employment situation.
USMX and the CCC argued that OSHA should have consulted with the
Agency's Maritime Advisory Committee for Occupational Safety and Health
(MACOSH) before issuing the proposed rule (Ex. 13: 7). OSHA notes that
under section 107 of the Contract Work Hours and Safety Standards Act
(40 U.S.C. 333, of 1973, commonly known as the Construction Safety Act)
and OSHA's own regulations at 29 CFR Part 1912,
[[Page 64365]]
the Agency is required to consult with the Advisory Committee on
Construction Safety and Health (ACCSH) regarding the setting of
construction standards. However, unlike ACCSH, there is no requirement
for OSHA to consult with MACOSH prior to issuing a proposed regulation
or standard affecting the maritime sectors. While the Agency may seek
the advice of MACOSH on a rulemaking during the pre-proposal stage, and
often does so, there is no requirement to that effect. Furthermore,
maritime interests had numerous opportunities to comment on the rule
during the extensive rulemaking process used by the Agency.
USMX and CCC also argued that longshore employees are well
compensated and can afford their own PPE. The relative pay of longshore
employees compared to employees in other sectors is immaterial to the
OSHA regulations and standards. Each employee is entitled to the
protections afforded under the Act, including by this standard. It is
therefore the duty of the employer to provide PPE at no cost to their
employees regardless of the employees' pay level or employment
benefits.
F. Shipyards
Shipyard employers and employees are covered by the OSHA standards
at 29 CFR Part 1915. Shipyards engage in several industrial activities,
including ship building, ship repair, barge cleaning, and ship
breaking. To the extent that the Part 1915 standards do not cover a
specific safety or health hazard, the Part 1910 general industry
standards apply. (See CPL 02-00-142, Shipyard Employment ``Tool Bag''
Directive for further details.) In the preamble to a 1996 rulemaking
revising the Shipyard PPE standards, OSHA reiterated the 1994 policy
requiring payment for PPE unless it was personal in nature and used off
the job (61 FR26327). The Agency subsequently included the shipyard
standards in the 1999 proposal to revise its PPE standards for all
industries (64 FR15402). Several shipyard interests commented on the
proposed PPE payment standard (See, e.g., Exs. 7; 12: 29, 65, 112, 210;
13: 6, 21; 35).
Despite the 1996 preamble discussion, the PPE payment practices
reported by these commenters varied widely. For example, Newport News
Shipyard reported that it pays for all PPE required by the final
standard, and asked only for clarification of items for which employer
payment is not required (Ex. 12: 210). (See Section V for a discussion
the PPE for which employer payment is required.). Other shipyards
reported a variety of PPE payment practices. Avondale Shipyards
Division reported that they pay for most PPE but require employees to
pay for certain welding PPE, safety-toe shoes, and safety glasses (Ex.
12: 112). Ingalls Shipbuilding had the same policy, but also required
employees to pay for their own hard hats (Ex. 12: 29). The Shipbuilders
Council of America (SCA) polled 50 shipyard companies and reported a
variety of payment practices for 13 types of PPE. Employer payment
practices ranged from 5 percent for safety shoes to 100 percent for
fall protection and chemical protective equipment. These employers also
reported various policies that required their employees to pay for some
equipment and share costs with the employer for other types of PPE (Ex.
12: 65).
Many of these shipyard commenters believed employees should pay for
their own welding PPE, and especially welding leathers. This issue is
discussed in more detail in section V ``PPE for which employer payment
is required''. Others argued the shipyard workforce has frequent
employee turnover and that PPE carried from job to job should be
exempted. As noted earlier, the Agency sees no reason to provide less
protection for short-term employees. The shipyard industry's turnover
rates do not appear to be significantly higher than the rates for
construction and marine terminals (See the economic analysis for a
comparison of turnover rates). Furthermore, the Agency has not received
any comments that would warrant an exception for an entire industry.
After careful consideration, OSHA has promulgated the same final rule
for shipyards that it is issuing for other industries.
G. Construction
Construction employers are covered by the OSHA standards at 29 CFR
Part 1926. The 1999 proposal covered the construction industry, just as
it covered other industries. In fact, OSHA noted in the proposal that:
OSHA realizes that there is frequent turnover in the
construction industry, where employees frequently move from job-site
to job-site. This is an important factor because an employer with a
high turnover workplace would have to buy PPE for more employees if
the PPE was of the type that could only be used by one employee.
OSHA requests comment on whether its proposed exceptions for safety-
toe footwear and prescription safety eyewear are appropriate in the
construction industry. Are there any other approaches to handle the
turnover situation that would be protective of construction workers?
Are there any other issues unique to the construction industry that
should be considered in this rulemaking? (64 FR 15416).
In response to the proposal, OSHA received more comments from the
construction industry than any other industry sector. Construction
interests accounted for nearly half of the 350 comments received by the
Agency.\11\ The commenters noted that ``The issue of who pays for PPE
has long been a contentious one in the construction industry'' and
noted five major reasons for their opposition to the rulemaking,
several of which were also articulated by commenters outside of the
construction industry. First, these commenters asserted that the
proposed rule is beyond OSHA's statutory authority. The Legal Authority
section of this preamble explains that OSHA is well within its
statutory mandate to issue this rule.
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\11\ More than 125 companies engaged in residential home
building and associated subcontractors submitted nearly identical
letters, which will be referenced as ``Form Letter A'' (See, e.g.,
Exs. 12-22; 23, 24, 25, 26, 27, 30, 33, 34, 35, 36, 37, 39, 40, 41,
46, 47, 54, 56, 57, 59, 60, 61, 62, 63, 64, 67, 68, 69, 70, 71, 72,
73, 74, 75, 76, 77, 78, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92,
93, 94, 96, 97, 98, 103, 115, 118, 119, 120, 121, 122, 123, 124,
125, 126, 127, 128, 132, 136, 137, 138, 139, 140, 142, 143, 147,
148, 156, 157, 158, 159, 160, 162, 166, 168, 170, 174, 175, 176,
177, 178, 179, 180, 185, 186, 192, 193, 194, 195, 196, 197, 198,
199, 200, 202, 205, 208, 212, 213, 215, 216, 219, 223, 224, 225,
226, 227, 231, 232, 234, 236, 237, 238, 239, 240, 241, 242).
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Second, the commenters argued that the proposed rule would limit
employers' flexibility in managing safety and health at their
workplaces. The standard does not limit employers in implementing and
managing their safety and health programs, an activity OSHA encourages.
Commenting employers in OSHA's Voluntary Protection Programs (VPP), all
of whom have implemented OSHA-approved safety and health management
systems, unanimously supported employer payment for PPE, and did not
suggest any negative effects on their safety and health management
systems (See, e.g., Exs. 12: 113, 210).
Third, the commenters argued that the proposed rule would give
employees the freedom to be irresponsible with company-owned PPE, and
urged OSHA to specify when an employer can charge an employee for lost
PPE. Employers have a number of means available to address
circumstances where employees do not follow company rules or are
irresponsible with company equipment. Two such means are increased
education efforts and disciplinary systems. With respect to the latter,
OSHA expects employers to fairly enforce reasonable and appropriate
disciplinary systems as part of their
[[Page 64366]]
overall effort to comply with OSHA standards and establish effective
workplace safety and health programs. Nothing in this rule prevents
employers from implementing these disciplinary systems. The Replacement
PPE section of this preamble provides a discussion of this topic.
Fourth, these commenters, along with many others, (See. e.g., Exs.
12: 18, Form letter B \12\) argued that employee payment for PPE will
ensure that the PPE is maintained in good working order. Commenters
also noted that employers would be inclined to purchase PPE that is
less expensive (and perhaps less safe) than that purchased by
employees, or that employees would be inclined to purchase less
expensive PPE that would not meet the minimum PPE standards established
by the American National Standards Institute (ANSI) (Ex. 12: 134, 218).
The Agency addresses this issue in Section XIV, Legal Authority.
---------------------------------------------------------------------------
\12\ Approximately 30 electrical contractors submitted identical
comments, which will be referenced as ``Form Letter B'' (See, e.g.,
Exs. 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, 25, 29, 38; 47: 1).
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Fifth, and last, the commenters asserted that employers would need
to keep receipts to prove payment to an OSHA inspector or Compliance
Safety and Health Officer (CSHO). Employers in all industries,
including construction, typically keep receipts and other transaction
records as part of their accounting systems to comply with standard
accounting practices and various business regulations. For example,
such receipts could be needed to prepare the employer's income tax
forms. Notwithstanding this usual practice, nothing in the final rule
requires employers to keep receipts to prove that they paid for PPE.
Generally, PPE payment practices can be determined through management
and employee interviews.
Similar to the home builders, a group of about 30 electrical
contractors submitted nearly identical comments (Form Letter B). These
contractors, which included the National Electrical Contractors
Association (NECA), urged the Agency to exempt certain items of
electrical PPE from the payment requirements because they viewed them
as tools of the electrical trade. After considering the comments
provided, OSHA has rejected the ``tools of the trade'' concept and
employers will generally be required to provide most of these items at
no cost to employees. These comments are discussed in Section V, ``PPE
for which payment is required,'' and Section VII, ``Other alternatives
considered during the rulemaking process.''
Similar to comments from the maritime and longshoring sectors, a
number of construction-related commenters noted the transient nature of
construction work and the high turnover rates in the industry. Many of
them argued that the short-term employment nature of the industry
should influence OSHA's decisions in the final standard (See, e.g.,
Exs. 12: 102, 153, 207, 229; 45: 28; form letter A; form letter B). The
Betco Scaffold Company remarked that:
The services provided by the scaffolding industry in support of
both industry and construction is of short job duration and for the
greatest extent provided by temporary employees who travel from job
to job. There is a high turnover rate and employees systematically
walk off jobs abruptly and without notice, taking with them their
tools and any and all PPE. There is seldom a tool room or
construction shack on site due to the short duration of the jobs.
Equipment losses and non-recovery of employer furnished PPE will
amount to an economic burden that cannot be recovered (Ex. 12: 18).
Other commenters argued that the transient nature of the industry
should not result in reduced protection (See, e.g., Exs. 12: 234, 218)
or that OSHA should make the rule fair for all employees (See, e.g.,
Exs. 12: 134, 190). In a typical comment, the IUOE remarked that:
[w]orker turnover should not be a consideration in determining
whether a construction employer should be required to pay for PPE.
Construction workers should not receive less protection than other
industries where turnover may be less. If all construction employers
are required to pay for all PPE, contractors may pass on the costs
to construction owners in their contract price. This will level the
playing field for bidders on construction work (Ex. 12: 234).
There is no logical basis for providing different protections for
different classes of employees, as described by these commenters, and
any such differentiation is not supported by the OSH Act or case law.
Consequently, the Agency does not consider employee turnover as a
reasonable basis for excluding the construction industry (or any other
industry) from the PPE payment standard.
Several commenters noted that employers may be compelled to incur
the cost of purchasing specific brands or styles of PPE due to employee
preference, even though such PPE does not provide additional protection
(Ex. 12: 21, 79, 99). OSHA emphasizes that employers are not required
to purchase all of the PPE requested by their employees but rather are
responsible for ensuring that adequate PPE is used to comply with OSHA
standards, and that the PPE used to comply with OSHA standards is
provided at no cost to their employees. Section VI ``Employee-owned
PPE'' addresses employee-upgraded PPE.
Finally, OSHA notes that several construction commenters supported
the PPE payment proposal (See, e.g., Exs. 12: 99, 134, 153, 190). For
example, Associated Builders and Contractors, Inc., a national
association representing 24,000 construction and construction-related
firms in 79 chapters across the United States primarily performing work
in industrial and commercial construction initially opposed the
proposed standard (Ex. 12: 153). However, in an August 23, 2004
comment, the trade association noted that ``ABC, with the guidance of
its Safety, Environmental, and Health Committee, has decided to support
the requirement that employers pay for PPE with some exceptions'' (Ex.
46: 41). Those exceptions were that safety-toe protective footwear and
prescription safety eyewear should be the responsibility of employees,
that employers should not have to replace PPE damaged due to employee
misconduct, and that employers should be compensated by employees for
PPE removed from the jobsite without the employer's permission. These
issues are discussed in the preamble section dealing with PPE for which
payment is required, and the replacement PPE section.
VIII. Acceptable Methods of Payment
Under the final rule, an employer may utilize any method of
payment, as long as it results in PPE being provided to that employer's
employees at no cost. Many methods are available, and employers are
free to choose a single payment method for all types of PPE, or
different payment methods for different types of PPE. From its review
of the comments, OSHA has identified four methods that employers
currently use to provide PPE at no cost to their employees: (1)
Employer purchase and distribution, (2) allowances, (3) vouchers, and
(4) employer reimbursement to employees. As explained below, in general
these methods are acceptable, and employers may choose these options or
develop other methods. At bottom, however, OSHA believes that PPE use
and effectiveness improves when employers exercise greater control over
the purchasing process.
A. Employer Purchase and Distribution
On this record, the method that appears to be the most effective
way for
[[Page 64367]]
employers to provide PPE to their employees is for employers to
purchase the PPE themselves, keep a ready supply of PPE, and distribute
the PPE directly to their employees. This method ensures that the PPE
meets the specifications the employer has set through the hazard
assessment/PPE selection process. It also provides the simplest means
of ensuring the quality of the equipment and minimizes the need to
individually assess each employee's choice of PPE.
There are many additional advantages to be gained through this
approach. By maintaining a PPE inventory, the employer can provide
immediate replacements for PPE that may become deficient due to wear
and tear or accidental damage. OSHA's standards require the employee to
be protected when exposed to a hazard. If replacement PPE is not
readily available to replace deficient PPE, the employee may not be
able to complete his or her shift, resulting in lost productivity for
the employer. The employer may also purchase the equipment in bulk.
This would produce a cost savings to the employer through bulk purchase
discounts as well as standardized equipment that would be easier to
repair and maintain.
B. Allowances
A number of commenters raised the issue of using employee
allowances to procure PPE (See, e.g., Exs. 12: 153, 188; 46: 43). In an
allowance system, an employer gives an employee a certain amount of
money to use to purchase specific PPE. OSHA does not object to
allowances as a means of paying for PPE, as long as the allowance
policy ensures that employees receive appropriate PPE at no cost.
As several commenters noted, an allowance system is a common
practice and it appears that in many cases it is an effective and
convenient method for providing PPE to employees at no cost. On the
other hand, an allowance system may create the need for the employer to
put in place a more rigorous method to ensure that the PPE is adequate
for the job. While the employer can take several steps to guide
employees in their purchase, such as giving employees a list of
approved vendors or PPE specifications, the employer may need to follow
up with employees and inspect the PPE.
C. Vouchers
Another system employers currently use to purchase PPE is a voucher
system. In this system, an employer typically has an arrangement with a
local retailer or distributor of PPE whereby the retailer or
distributor will accept a voucher from the employer for a particular
type of PPE in lieu of direct payment. The retailer or distributor then
directly bills the employer for the PPE after processing the voucher.
Some employers find this system administratively convenient; it also
avoids having to pay money to an employee before the purchase is made
in the form of an allowance.
D. Employee Purchase With Employer Reimbursement
Some employers may decide to use an employee reimbursement method
for providing PPE. Under this type of system, the employer requires the
employee to purchase the PPE and then reimburses the employee for the
cost of the purchase. This method has most of the same advantages and
disadvantages as allowances and vouchers. The difference is that the
employee is provided the funds after the PPE is purchased, instead of
before.
Some commenters raised an issue that applies to allowances,
vouchers, and reimbursement. These commenters asked whether or not an
employer would be required to reimburse an employee for time and travel
expenses to shop for PPE to ensure that PPE was provided at no cost.
The SHRM remarked:
SHRM's understanding is that OSHA never contemplated that the
employer payment obligation would extend beyond the purchase price
of the PPE to include the time the employee would spend acquiring
the PPE. * * * For example, it would be fairly common for an
employee to travel to an employer-designated shoe store where the
employer has an account. The employee would have the ability to
review available shoe models, select the model and size that best
meets the employee's needs (up to a specified allowance with the
employee paying for any amount in excess of the allowance), and
possibly get some personalized fitting. * * * Payment of
compensation for the time spent shoe shopping would be an
unreasonable burden, would likely exceed the cost of the PPE, and
would be fraught with the potential for abuse and make it difficult
to administer (Ex. 46: 43).
OSHA does not intend the rule to cover time and travel expenses an
employee might incur while shopping for PPE during non-work hours. OSHA
recognizes that this position differs from the position the Agency has
consistently taken with respect to employee time and travel expenses
for medical services in several other standards (See, e.g., lead
standard at Sec. 1910.1025(j)(1)(iii) and bloodborne pathogens
standard at Sec. 1910.1030(f)(1)(ii)). These standards also use the
terms ``at no cost'' and OSHA has interpreted them as requiring
employer payment for the time and travel costs an employee incurs for
receiving required medical services during non-work hours. See Phelps
Dodge Corp. v. Occupational Safety and Health Review Comm., 725 F.2d
1237 (9th Cir. 1984). The underlying reason for OSHA's position was
that the time and travel needed to obtain the required medical services
could be so great that if employees were not compensated for it, they
would delay visiting a health care provider (HCP), resulting in delayed
diagnosis and treatment. Even worse, they might opt not to participate
in the employer's medical surveillance program at all. As described
below, OSHA believes that time and travel required to purchase PPE is
much less than that required for medical services. Because of this,
OSHA does not believe that requiring employees to shop for PPE on their
own outside of work would serve as a disincentive to acquiring the PPE.
First, the amount of time required to visit an HCP, wait to see the
HCP, get any required tests taken, and consult the HCP about the
results is much longer than the time needed to purchase PPE. OSHA has
found with respect to medical screening and surveillance that the
amount of time required to obtain services is quite long in certain
circumstances and if employers did not pay for the time and travel
involved, employees might forego the examinations. See e.g., Phelps
Dodge, 725 F.2d at 1238 (actual time required for medical examinations,
including transportation and waiting was ``an hour or more'').
Furthermore, employees on occasion need to make multiple trips to an
HCP. While employers are often required to offer medical surveillance
to employees, employee participation in medical surveillance programs
is sometimes not required by OSHA standards, and employees may decline
to participate. As such, the time spent to participate may act as a
disincentive to employees if they were not compensated for time and
travel. These considerations do not apply to shopping for PPE.
Second, unlike medical services where the employee would almost
certainly have to travel in person to the HCP, there are many options
available for employees to acquire PPE on their own and some of these
involve no travel. There are many retail locations that sell PPE, and
in many cases the employee may already be going to the retail location
for personal shopping. In addition, there are numerous catalogue and
internet retailers available for employees to shop for equipment.
[[Page 64368]]
OSHA does not believe that the extra time needed to acquire PPE outside
of work hours would serve as a significant disincentive to employees
getting the PPE.
For these reasons, employers are not required to reimburse
employees for time spent shopping for PPE or for travel expenses
related to PPE shopping.
IX. Effective Dates
Each of the PPE payment standards includes an effective date
paragraph to establish the dates when employers will be fully
responsible for meeting the PPE payment requirements. (See Sec.
1910.132(h)(7), Sec. 1915.152(f)(7), Sec. 1917.96(f), Sec.
1918.106(f), and Sec. 1926.95(d)(7)) Each affected standard will
become effective on February 13, 2008. This date is 90 days from the
date of publication in the Federal Register. The Agency sets the
effective date to allow sufficient time for employers to obtain the
standard, read and understand its requirements, and undertake the
necessary planning and preparation for compliance. The 90-day effective
date has been established to comply with section 6(b)(4) of the OSH
Act, which provides that the effective date for a standard may be
delayed for up to 90 days from the date of publication in the Federal
Register.
Despite the 90-day effective date, OSHA is extending the compliance
deadlines for the final standard so employers will be given six months
to fully comply with the new requirements. By extending the deadline to
comply with the PPE payment provisions, OSHA will minimize the impact
of the rule on existing collective bargaining agreements, and give
businesses (including small businesses) needed time to implement the
requirements.
A number of commenters remarked that existing collective bargaining
agreements containing PPE provisions would be affected by the final
standard (See, e.g., Exs. 12: 14, 16, 17, 21, 43, 65, 66, 79, 117, 172,
173, 183, 188, 189). Several argued that the final rule would have a
negative effect on employers that have existing collective bargaining
agreements (See, e.g., Exs. 12: 14, 16, 17, 65, 79, 173, 183, 188,
189). The Association of Electric Cooperatives noted that,
OSHA should keep in mind that payment arrangements for PPE are
frequently part of the employers' negotiations with the labor union.
As such, when stating the effective date of the rule, consideration
should be made to current union contracts. The Association
recommends that the effective date of the rule allow for current
labor contracts to run their course. Employer's payment of PPE, in
most cases, will take effect at the signing of the next contract
(Ex. 12: 183).
OSHA has not implemented a compliance deadline that would allow all
collective bargaining agreements to expire and be renegotiated before
the rule takes effect. This would take several years and would result
in undue delay of the safety and health benefits that the Agency
expects will result from the rule. The six-month compliance deadline
will allow sufficient time for some collective bargaining agreements to
expire and will provide a reasonable interval for employers and unions
to work out the specific methods by which PPE will be provided to
employees at no cost.
The six-month compliance date will also give businesses time to
establish systems for effectuating employer payment. As discussed
above, employers may utilize a number of different methods to ensure
that PPE is provided at no cost to employees. Allowing a six-month
compliance deadline will give employers time to determine what method
is best for their business and implement the method before the rule
takes effect.
The six-month compliance deadline will also help minimize the
burden on small businesses. Some commenters urged OSHA to consider the
special needs of small business entities when considering the effective
date of the standard (See, e.g., Exs. 12: 3, 68, 145). Douglas Battery
suggested the ``[e]stablishment of a size threshold (or other measure)
at which the cost of providing PPE becomes a shared responsibility
between employers and employees for some specified period'' (Ex. 12:
3).
OSHA has not implemented a phased-in approach as recommended by
Douglas Battery because doing so would be overly complex, cumbersome,
and delay the benefits of the final rule. However, the Agency believes
that the six-month compliance deadline will give the large number of
small businesses covered by the standard sufficient time to work with
PPE suppliers to obtain needed equipment and negotiate bulk discount
prices. In some cases, very small employers may choose to join together
and coordinate their PPE acquisition efforts through a local trade
association or co-op to obtain bulk discounts on equipment. The
extended compliance deadline will provide time to set up such
arrangements.
X. Effect on Existing Union Contracts
Many collective bargaining agreements contain language specifying
that employers will provide certain PPE to employees at no cost and
some specify certain PPE that employees will be responsible for
providing (and paying for) themselves. The final standard could have an
impact on these agreements. OSHA has carefully considered the impact of
the final rule on collective bargaining agreements and has determined
that workplaces with collective bargaining agreements should be treated
no differently in the final rule than workplaces without collective
bargaining agreements. However, to reduce impacts on existing
collective bargaining agreements, OSHA is establishing a six-month
compliance deadline for the final rule. This will allow some existing
collective bargaining agreements to expire or provide employers and
employees time to renegotiate agreements to conform to the final rule.
Many stakeholders commented on the extent to which an employer
payment for PPE rule would impact existing collective bargaining
agreements. Some union commenters stated that an employer payment rule
would affect collective bargaining agreements in the same way as other
OSHA safety and health standards and that OSHA should not make any
exceptions from the rule for workplaces governed by collective
bargaining agreements (See, e.g., Exs. 12: 14, 16, 17, 21, 65, 79, 99,
167, 173, 183, 188, 189).
One commenter noted that most collective bargaining agreements
contain language requiring employers to pay for all required PPE (Ex.
12: 105). Some commenters supported the rule on the basis that it would
create a level playing field for union and non-union employees (Ex. 12:
110) by ensuring that in both cases employees are provided PPE ``at no
cost'' and ensure that more employees, including non-union employees,
would be afforded the same protections (Ex. 12: 113).
Some commenters, on the other hand, asserted that the rule
inappropriately interferes with existing collective bargaining
agreements because PPE payment is a traditional and mandatory subject
of collective bargaining under federal law, and thus violates the
policies of federal labor legislation governing employer and employee
negotiation over workplace conditions (See e.g., 12: 43, 173, 189).
Caterpillar, Inc., remarked that ``Payment sharing procedures that have
been developed through years of collective bargaining will be unjustly
modified by this proposal'' (12: 66).
OSHA finds that the final rule does not inappropriately interfere
with collective bargaining agreements. The
[[Page 64369]]
impact of OSHA standards on collective bargaining has been discussed by
OSHA in past rules. OSHA has consistently stated that the duty to
bargain with unions over safety and health matters does not excuse
employers from complying with OSHA standards. This principle has been
upheld by the courts (See, e.g., Forging Industries at 1451-1452). In
United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236
(D.C.Cir.1980) the court observed:
In passing a massive worker health and safety statute, Congress
certainly knew it was laying a basis for agency regulations that
would replace or obviate worker safety provisions of many collective
bargaining agreements. Congress may well have viewed collective
bargaining agreements along with state worker's compensation laws as
part of the status quo that had failed to provide workers sufficient
protection (Id. at 1236).
OSHA sees no distinction between this rule and other OSHA standards
placing obligations on employers. In fact, in numerous past rulemakings
OSHA has required employers to provide PPE ``at no cost''; none of
these rules has been overturned because they inappropriately interfered
with collective bargaining. Compliance with the rule does not conflict
with employers'' obligations to bargain over mandatory subjects of
bargaining under the National Labor Relations Act (NLRA).
Additionally, the rule does not foreclose bargaining about
discretionary aspects of the standard such as the means by which the
employer will provide the PPE to employees so that it results in no
cost to the employees, payment arrangements for equipment that is not
covered by the final rule, and so forth. As courts have found, to the
extent the employer has discretion in the means by which it achieves
compliance, and the means involve a mandatory subject of bargaining,
the employer is not only free to bargain but would be required to
bargain with the union regarding the means of compliance. United
Steelworkers, 647 F.2d at 1236 (``[w]hen an issue related to earnings
protection not wholly covered by OSHA regulation arises between labor
and management, it will remain a mandatory subject of collective
bargaining''); see Watsonville Newspapers, LLC, 327 N.L.R.B. No. 160,
slip op. 2-3 (Mar. 24, 1999); Dickerson-Chapman, Inc., 313 N.L.R.B.
907, 942 (1994) (although employer must comply with OSH Act standard
requiring daily inspections of open excavations by a ``competent
person,'' employer must bargain with union about who would be so
designated); Hanes Corp., 260 N.L.R.B. 557, 561-562 & n.12 (1982)
(where OSHA standard required use of respirators but gave employer
discretion with respect to choice of respirator, employer could require
use of respirator without bargaining, but could not unilaterally
determine which approved respirator would be used).
OSHA has repeatedly emphasized the importance of involving employee
representatives in all aspects of workplace safety and health. The
Agency believes that employers and unions have been able to meet both
their responsibilities under OSHA's standards and their duty to bargain
under the NLRA. This has been the case with other OSHA rules, and the
Agency believes that employers and employees will be able to do the
same under the PPE payment standards.
One commenter remarked that ``[t]here is no evidence that the
collective bargaining process is broken'' (12: 189) while another
observed that relying on collective bargaining for the payment of PPE
is an ``inadequate solution'' (Ex. 12: 100). OSHA notes that many
employees are not represented by unions, so relying on collective
bargaining as an alternative to the final rule would not be effective.
It also would be impractical to create an exception for workplaces
covered by collective bargaining agreements, because doing so would
result in unequal protection for employees depending on whether a
collective bargaining agreement is in place or not. An exception would
also be a cumbersome and unduly complex provision to enforce.
While OSHA does not believe there is a need or sound rationale for
providing an exception to employers whose employees are represented
under a collective bargaining agreement, the Agency does not want to
cause undue disruption to existing collective bargaining agreements.
Therefore, as explained in the Effective Dates section of this
preamble, the Agency has extended the compliance deadline for the
standard by six months. This will allow some collective bargaining
agreements to expire. In these cases employers and unions can
renegotiate the contract to reflect the new realities imposed by the
rule. In other cases, the six-month compliance deadline allows
employers, employees, and employee representatives to either conduct
mid-term bargaining or otherwise come to an agreement concerning their
methods for implementing the final rule.
XI. Effect on Other OSHA Standards
As noted above, many of OSHA's existing standards specify whether
or not the employer is required to provide required PPE at no cost to
employees. Other standards are silent on the issue of payment. OSHA is
setting forth clearly in a note to the final rule that when an employer
payment provision in another OSHA standard specifies whether or not the
employer must pay for specific equipment, the payment provision of the
other standard shall prevail over the provision in this final rule.
This rule is meant to apply to all OSHA standards requiring PPE.
This includes the general employer payment requirement included in the
final rule, in addition to the exceptions given. For other standards
that already require employers to provide a certain type of PPE at no
cost, this final rule ``amends'' those standards to include the
exceptions for employee-owned PPE, replacement PPE, etc. Thus, this
final rule must be read in concert with the other standards that
require employer payment for PPE. It is only in those instances where
another standard specifically addresses an aspect of PPE payment that
is also specifically addressed in this final rule, that the provisions
of the other standard govern.
For example, if an OSHA health standard states only that employers
must provide PPE ``at no cost'' to employees, and includes no
exceptions to that requirement, the exceptions in this final rule would
apply to employers and employees performing work covered by that
standard. Conversely, if another OSHA standard includes ``at no cost''
language and specifically requires employers to pay for all replacement
PPE--regardless of whether the PPE was lost or intentionally damaged--
that other OSHA standard would govern an employer's obligation with
respect to replacement PPE, as opposed to this final rule.
A question naturally arises regarding future rulemakings and how
PPE payment will be addressed when a rulemaking has PPE requirements.
Generally, OSHA intends that future rules with PPE requirements will
require employers to provide the PPE at no cost to employees (with
exceptions) in accord with its findings in this rule. However, it is
difficult, if not impossible, to predict all the PPE issues and
arguments that may arise in future rulemakings, and the specific PPE
payment requirements that may be appropriate for those rules. It is
entirely possible that some item for which payment is required under
Sec. 1910.132(h) would be determined as exempted from payment, and
similarly, an item exempted from payment under Sec. 1910.132(h) could
be subject to
[[Page 64370]]
employer payment under some future standard.
By adding a note in the regulatory text of the various standards,
however, if OSHA decides to take a different position on PPE payment in
a future rulemaking, it will not need to make a parallel change to the
regulatory language of the relevant PPE payment standard (general
industry, construction, shipyard, marine terminals, or longshore) set
forth in this final rule. OSHA believes that this approach is more
flexible and will be clearer to the regulated public.
In the preamble to the proposed rule, OSHA listed many of the OSHA
standards that include provisions requiring the use of PPE. For ease,
OSHA is providing a similar list below. Some of these standards
specifically include ``at no cost'' language and some do not. Employers
need to carefully review their obligations under the standards that
apply to them.
Table XI-1.--OSHA Standards that Require PPE
------------------------------------------------------------------------
------------------------------------------------------------------------
29 CFR 1910, General Industry
------------------------------------------------------------------------
1910.28...................... Safety requirements for scaffolds.
1910.66...................... Powered platforms for building
maintenance.
1910.67...................... Vehicle-mounted elevating and rotating
work platforms.
1910.94...................... Ventilation.
1910.95...................... Occupational noise exposure.
1910.119..................... Process safety management of highly
hazardous chemicals.
1910.120..................... Hazardous waste operations and emergency
response.
1910.132..................... General requirements (personal protective
equipment).
1910.133..................... Eye and face protection.
1910.134..................... Respiratory protection.
1910.135..................... Occupational Head protection.
1910.136..................... Occupational foot protection.
1910.137..................... Electrical protective equipment.
1910.138..................... Hand protection.
1910.146..................... Permit-required confined spaces.
1910.156..................... Fire brigades.
1910.157..................... Portable fire extinguishers.
1910.160..................... Fixed extinguishing systems, general.
1910.183..................... Helicopters.
1910.218..................... Forging machines.
1910.242..................... Hand and portable powered tools and
equipment, general.
1910.243..................... Guarding of portable power tools.
1910.252..................... General requirements (welding, cutting
and brazing).
1910.261..................... Pulp, paper, and paperboard mills.
1910.262..................... Textiles.
1910.265..................... Sawmills.
1910.266..................... Logging operations.
1910.268..................... Telecommunications.
1910.269..................... Electric power generation, transmission
and distribution.
1910.272..................... Grain handling facilities.
1910.333..................... Selection and use of work practices.
1910.335..................... Safeguards for personnel protection.
1910.1000.................... Air contaminants.
1910.1001.................... Asbestos.
1910.1003.................... 13 carcinogens, etc.
1910.1017.................... Vinyl chloride.
1910.1018.................... Inorganic Arsenic.
1910.1025.................... Lead.
1910.1026.................... Chromium (VI).
1910.1027.................... Cadmium.
1910.1028.................... Benzene.
1910.1029.................... Coke oven emissions.
1910.1030.................... Bloodborne pathogens.
1910.1043.................... Cotton dust.
1910.1044.................... 1,2-dibromo-3-chloropropane.
1910.1045.................... Acrylonitrile.
1910.1047.................... Ethylene oxide.
1910.1048.................... Formaldehyde.
1910.1050.................... Methylenedianiline.
1910.1051.................... 1,3-Butadiene.
1910.1052.................... Methylene chloride.
1910.1096.................... Ionizing radiation.
1910.1450.................... Occupational exposure to chemicals in
laboratories.
------------------------------------------------------------------------
29 CFR 1915, Shipyards
------------------------------------------------------------------------
1915.12...................... Precautions and the order of testing
before entering confined and enclosed
spaces and other dangerous atmospheres.
1915.13...................... Cleaning and other cold work.
1915.32...................... Toxic cleaning solvents.
1915.33...................... Chemical paint and preservative removers.
1915.34...................... Mechanical paint removers.
[[Page 64371]]
1915.35...................... Painting.
1915.51...................... Ventilation and protection in welding,
cutting and heating.
1915.53...................... Welding, cutting and heating in way of
preservative coatings.
1915.73...................... Guarding of deck openings and edges.
1915.77...................... Working surfaces.
1915.135..................... Powder actuated fastening tools.
1915.153..................... Eye and face protection.
1915.152..................... General requirements.
1915.154..................... Respiratory Protection.
1915.155..................... Head protection.
1915.156..................... Foot protection.
1915.157..................... Hand and body protection.
1915.158..................... Lifesaving equipment.
1915.159..................... Personal fall arrest systems (PFAS).
1915.160..................... Positioning device systems.
1915.504..................... Fire watches.
1915.505..................... Fire response.
1915.1001.................... Asbestos.
1915.1026.................... Chromium (VI).
------------------------------------------------------------------------
29 CFR 1917, Marine Terminals
------------------------------------------------------------------------
1917.22...................... Hazardous cargo.
1917.23...................... Hazardous atmospheres and substances.
1917.25...................... Fumigants, pesticides, insecticides and
hazardous waste.
1917.26...................... First aid and lifesaving facilities.
1917.49...................... Spouts, chutes, hoppers, bins, and
associated equipment.
1917.73...................... Terminal facilities handling menhaden and
similar species of fish.
1917.91...................... Eye and face protection.
1917.92...................... Respiratory protection.
1917.93...................... Head protection.
1917.94...................... Foot protection.
1917.95...................... Other protective measures.
1917.118..................... Fixed ladders.
1917.126..................... River banks.
1917.152..................... Welding, cutting and heating (hot work).
1917.154..................... Compressed air.
------------------------------------------------------------------------
29 CFR 1918, Safety and Health Regulations for Longshoring
------------------------------------------------------------------------
1918.85...................... Containerized cargo operations.
1918.88...................... Log operations.
1918.93...................... Hazardous atmospheres and substances.
1918.94...................... Ventilation and atmospheric conditions.
1918.101..................... Eye and face protection.
1918.102..................... Respiratory protection.
1918.103..................... Head protection.
1918.104..................... Foot protection.
1918.105..................... Other protective measures.
------------------------------------------------------------------------
29 CFR 1926, Safety and Health Regulations for Construction
------------------------------------------------------------------------
1926.28...................... Personal protective equipment.
1926.52...................... Occupational noise exposure.
1926.55...................... Gases, vapors, fumes, dusts, and mists.
1926.57...................... Ventilation.
1926.60...................... Methylenedianiline.
1926.62...................... Lead.
1926.64...................... Process safety management of highly
hazardous chemicals.
1926.65...................... Hazardous waste operations and emergency
response.
1926.95...................... Criteria for personal protective
equipment.
1926.96...................... Occupational foot protection.
1926.100..................... Head protection.
1926.101..................... Hearing protection.
1926.102..................... Eye and face protection.
1926.103..................... Respiratory protection.
1926.104..................... Safety belts, lifelines and lanyards.
1926.105..................... Safety nets.
1926.106..................... Working over or near water.
1926.250..................... General requirements for storage.
1926.300..................... General requirements (Hand and power
tools).
1926.302..................... Power-operated hand tools.
1926.304..................... Woodworking tools.
1926.353..................... Ventilation and protection in welding,
cutting and heating.
1926.354..................... Welding, cutting and heating in way of
preservative coatings.
[[Page 64372]]
1926.416..................... General requirements (Electrical).
1926.451..................... General requirements (Scaffolds).
1926.453..................... Aerial lifts.
1926.501..................... Duty to have fall protection.
1926.502..................... Fall protection systems criteria and
practices.
1926.550..................... Cranes and derricks.
1926.551..................... Helicopters.
1926.605..................... Marine operations and equipment.
1926.701..................... General requirements (Concrete and
masonry construction).
1926.760..................... Fall protection (Steel erection).
1926.800..................... Underground construction.
1926.951..................... Tools and protective equipment.
1926.955..................... Overhead lines.
1926.959..................... Lineman's body belts, safety straps, and
lanyards.
1926.1053.................... Ladders.
1926.1101.................... Asbestos.
1926.1126.................... Chrome (IV).
1926.1127.................... Cadmium.
------------------------------------------------------------------------
XII. Miscellaneous Issues
The vast majority of the comments received from various parties
during the rulemaking process have been answered in other sections of
the preamble relating to the specific PPE payment issues raised.
However, some commenters raised a number of issues that do not deal
directly with PPE payment, but rather with aspects of rulemaking
procedure, OSHA's underlying analysis supporting the rulemaking, or
other issues related to PPE use. OSHA addresses those comments below.
A. Procedural Issues
In developing this final rule, OSHA compiled an extensive
rulemaking record. It received hundreds of comments on the proposal
published in 1999, conducted four days of hearings, and gave interested
parties four months to file post-hearing comments and briefs.
Subsequently, on July 8, 2004, OSHA published a notice to re-open the
record. The Agency solicited comment on how the final rule should
address PPE that is customarily provided by employees (69 FR 41221).
OSHA received over 100 comments on this issue. OSHA carefully reviewed
and analyzed the comments and information provided in developing the
final rule.
Despite this, some commenters questioned a few aspects of the
procedures OSHA used in developing the proposed rule, as well as the
quality of the information and data relied on by the Agency. OSHA
addresses these comments below.
1. Expert Panel
In 1998, OSHA sponsored an expert panel of representatives from
industry, labor, insurance companies, and safety equipment
manufacturers and distributors to gather information about patterns of
PPE use and payment. Based on the information provided by the panel and
OSHA's enforcement experience, the Agency provided quantitative
estimates of the difference in PPE usage when employers purchase the
PPE versus when employees purchase.
A few commenters raised concerns about OSHA's reliance on the
information provided by the panel of experts (See Exs. 12: 173, 188,
189). The Pacific Maritime Association (PMA) and United Parcel Service
(UPS) both argued that the panel's activities were conducted in
violation of the Federal Advisory Committee Act (``FACA''), 5 U.S.C.
app. section 1 et seq. (Ex. 12: 173, 189). These comments stated that
the panel ``[p]rovided information and discussed employer payment of
personal-PE, which * * * falls within FACA's coverage of a `[p]anel * *
* established or utilized by one or more agencies, in the interest of
obtaining advice or recommendations * * *' '' (Ex. 12: 173, 189).
Pursuant to FACA, notice of advisory committee meetings is to be
published in the Federal Register, and such meetings are to be made
open to the public (5 U.S.C. app. section 10(a)).
These commenters misunderstand the scope of FACA's coverage and the
role played by the expert panel in the rulemaking process. FACA does
not apply to the expert panel described above. As explained in the
regulations issued by the General Services Administration (GSA) to
administer FACA, the statute does not apply to ``[a]ny group that meets
with a Federal official(s) where advice is sought from the attendees on
an individual basis and not from the group as a whole'' (41 CFR 102-
3.40(e). Also excluded from FACA is ``[a]ny group that meets with a
Federal official(s) for the purpose of exchanging facts or
information'' (41 CFR 102.3.40(f)).
In Public Citizen v. U.S. Dept. of Justice, the Supreme Court
examined the reach of FACA and concluded that the statute's definition
of ``advisory committee'' ``[a]ppears too sweeping to be read without
qualification'' (Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440,
465 (1989). The Court further emphasized that ``[w]here the literal
reading of a statutory term would `compel an odd result,' * * *we must
search for other evidence * * * to lend the term its proper scope''
(Public Citizen, 491 U.S. at 454). The Court of Appeals for the DC
Circuit provided additional guidance for determining whether a panel
constitutes a FACA advisory committee.
The point, it seems to us, is that a group is a FACA advisory
committee when it is asked to render advice or recommendations, as a
group, and not as a collection of individuals * * * [C]ommittees
bestow * * *various benefits only insofar as their members act as a
group. The whole, in other words, must be greater than the sum of
the parts. Thus, an important factor in determining the presence of
an advisory committee becomes the formality and structure of the
group (Ass'n of Am. Physicians and Surgeons, Inc. v. Clinton, 997
F.2d 898, 913-14 (DC Cir. 1993).
OSHA assembled the expert panel for the purpose of gathering data,
anecdotal evidence, and other information from each expert, which the
Agency considered in drafting this rule. The panel was comprised of
representatives from labor unions, employer associations, safety
equipment distributors and manufacturers, and insurance companies. OSHA
provided a questionnaire to the panel members so the Agency could learn
each expert's opinions on various issues related to
[[Page 64373]]
PPE usage.\13\ OSHA did not seek a consensus answer to each question
but rather assessed each expert's individual response to the questions.
The Agency was interested in the range of experiences the different
sectors had had with PPE. Furthermore, OSHA did not seek policy advice
or recommendations from the panel but simply information to be used in
developing the PPE payment rule.
---------------------------------------------------------------------------
\13\ The responses are summarized in the main text of the
Patterns of PPE Provision Final Report, and the complete set of
responses from each expert is provided in Appendix A of the Report
(Ex. 1).
---------------------------------------------------------------------------
As indicated by the Court of Appeals for the DC Circuit, it is also
important to consider the formality and structure of the panel when
determining whether or not the panel is a FACA advisory committee
(Ass'n of Am. Physicians and Surgeons, Inc., 997 F.2d at 913-14). Here,
the members of the expert panel did not meet. To supplement the
individual responses of the panel members, six of the eight members
participated in one conference call with OSHA officials to discuss
issues related to PPE usage, including the different estimates
regarding levels of PPE provision by employers. No other meetings were
held. Had OSHA sought advice or recommendations from the group as a
whole, the Agency would have arranged for longer and more frequent
discussions among panel members, enabling the panel to reach agreement
and provide consensus-based advice. OSHA, instead, was seeking data and
general information about PPE from the representatives of the different
sectors, which the Agency weighed in drafting this rule.
The same commenters raised an additional issue related to the
transparency of the rulemaking process. The commenters stated that OSHA
relied on information and estimates provided by one member of the
expert panel who was not identified by name in the report on patterns
of PPE usage (Ex. 12: 189). OSHA disagrees that it did not provide the
public sufficient information to comment on the benefits estimates in
the proposed rule.
Pursuant to the request in the questionnaire submitted to the
panelists, Dr. Jeffrey Stull provided estimates of the incidence of
non-use or misuse of PPE under different payment schemes (See Patterns
of PPE Provision Final Report). He estimated a 40 percent incidence
rate of non-use or misuse of employee-purchased PPE and a 15 to 20
percent incidence rate of non-use or misuse of employer-purchased PPE.
As explained in the proposal, OSHA adopted these estimates because they
were consistent with information provided by the other panelists as
well as the Agency's own enforcement experience.
During the public hearing held on August 10, 1999, OSHA's opening
statement set forth the Agency's belief that the PPE Payment rule would
prevent thousands of injuries each year that result from misuse or
nonuse of PPE when employees must purchase the PPE for themselves (Tr.
15). Additionally, in the statement, OSHA specifically requested
comments on the safety advantages associated with employer-purchased
PPE.
We would also very much like your comments on the results of the
PPE survey, which are in the Docket, and we would like to know
whether you have evidence, either in qualitative or quantitative
terms, showing that employee-owned PPE is less protective than
employer-provided PPE. Are there, for example, particular instances
where employees have jeopardized their safety and health to avoid
the financial loss they would experience if they had to pay for
their own PPE? Is there evidence to suggest that employees take
better care of PPE that they themselves must purchase?
Alternatively, is there evidence that employees neglect to take care
of PPE paid for by their employers? (Tr. 23).
Following this statement, OSHA took questions from the public. During
this questioning period, none of the attendees posed questions or
expressed concerns about OSHA's estimates of the safety advantages of
employer-purchased PPE.
During this same hearing, Dr. Stull testified as OSHA's designated
PPE expert. In accordance with the hearing procedures published in the
Federal Register, Rescheduling of Informal Public Hearing, 64 FR 27941
(May 24, 1999), on July 15, 1999, OSHA provided notice to the Docket
Office of Dr. Stull's intent to appear as OSHA's expert witness along
with his curriculum vitae (Ex. 13: 16). On July 23, 1999, the full text
of Dr. Stull's testimony was submitted to the Docket Office for review
by the public (Ex. 13: 16-1).
After his prepared testimony, Dr. Stull also took questions. A
representative of the AFL-CIO asked for specific data regarding the
frequency of use of PPE off of the jobsite (Tr. 73). Subsequently, an
attorney from the Office of the Solicitor asked Dr. Stull about the
safety advantage of requiring the employer to pay for PPE (Tr. 80).
Even though Dr. Stull was asked specifically to discuss data on PPE use
and then to address the benefits of employer-purchased PPE, none of the
attendees--including those commenters above that questioned OSHA's
benefits estimate--took the opportunity to ask the witness about data
related to the safety benefit of employer-purchased PPE.
In short, OSHA provided ample opportunity for the public to pose
questions to the Agency's representatives as well as the Agency's
designated PPE expert about the specific figures used in its benefits
analysis, but none did so. Furthermore, no commenters offered
alternative point estimates of the safety benefits of employer payment
for PPE. The rulemaking process and OSHA's analyses were transparent.
The public was not deprived of the opportunity to comment or question
the Agency's benefits analysis.
2. Data Quality
The Society for Human Resource Management (SHRM) expressed concern
about the quality of the data that OSHA relied on in performing the
benefits estimate in the proposal, stating ``SHRM questions whether the
proposed * * * rule will significantly advance workplace safety since
it is not shown to be based upon sound scientific studies nor is it
established that the data was gathered pursuant to the Data Quality Act
requirements'' (46: 43).
The Department of Labor's ``Guidelines for Ensuring and Maximizing
the Quality, Objectivity, Utility, and Integrity of Information
Disseminated by the Department of Labor'' (Guidelines) (Available at
DOL.gov at http://www.dol.gov/cio/programs/InfoGuidelines/InfoQualityGuidelines.pdf) establish Departmental guidance for ensuring
that the quality of information disseminated by the Department meets
the standards of quality, including objectivity, utility, and
integrity. The Guidelines also contain specific principles for agencies
to follow when analyzing safety and health risks. While much of the
information used in the final rule was developed prior to publication
of the guidelines, the information was gathered using techniques that
meet the guidelines.
Contrary to the suggestion of SHRM, the information presented to
support the safety benefits of the final rule fully complies with the
Guidelines. The benefits analysis in the final rule is based on the
best available evidence. In addition to the expert panel described
above, in 1999, OSHA engaged Eastern Research Group (ERG) to perform a
large-scale telephone survey to collect industry-specific data
describing PPE usage patterns and the extent to which employers pay for
OSHA-required PPE. The results were published in the PPE Cost Survey
report on June 23, 1999 and made available in the Docket Office (Ex.
[[Page 64374]]
14). OSHA subsequently published a Federal Register notice asking the
public to comment on the survey results (64 FR 33810-33813, June 24,
1999).
ERG obtained complete responses from 3,722 respondents. Three basic
types of information were collected about eight categories of PPE: (1)
If the PPE is used at the respondent's establishment; (2) how many
employees use the PPE; and (3) who pays for the PPE (Ex. 12: 14). The
survey data provide industry-specific estimates of the numbers of
employees and establishments currently using each PPE type. The data
also provide industry-specific estimates of the numbers of employees
and establishments at which employers pay the full cost of the
equipment, the numbers at which employees pay for the equipment, and
the numbers at which employers and employees share the costs of PPE.
OSHA relied heavily on this data, as well as the extensive record
that was compiled during the rulemaking and updated Bureau of Labor
Statistics data, to develop the final rule and to determine the costs,
benefits, and economic impacts of the rule. This is precisely the type
of information the Guidelines require agencies to utilize when
evaluating risks. The Guidelines specifically require agencies to use
``[d]ata collected by accepted methods or best available methods'' when
analyzing safety and health risks. Accepted methods include the
``[t]estimony of experts'' and ``relevant analyses'' of pertinent
information or data (Guidelines, p. 16). OSHA is confident that it has
relied on the best available information in developing this rule and
that the information presented complies with the Guidelines.
B. Turning in Old Equipment
A few commenters raised the issue of ``exchange systems,'' where an
employee is required to turn in PPE that is no longer functional when
the employer provides replacement PPE (See, e.g., Exs. 12: 65, 167,
183). The SCA commented that:
Many shipyards require employees to turn in their non-
serviceable PPE upon receiving new equipment. Employer review of
used PPE has proven to reduce injury at shipyards by providing
employers insight into how equipment is used by examining what parts
of the equipment are worn. This practice allows employers to
identify poor technique and institute engineering controls that can
reduce the incidence of injury. SCA recommends that the rule protect
the employer's right to continue this practice (Ex. 12: 65).
OSHA does not prohibit SCA's practice and OSHA does not object to
employers requiring employees to turn in employer-owned, worn-out PPE
when issuing replacement PPE. Analyzing the PPE to look for wear
patterns or other characteristics that can help implement improved
engineering controls or obtain more suitable PPE would be a useful
method for improving an employer's safety and health program. However,
the Agency notes that these types of exchange programs need to be set
up so that employees are not denied needed replacement PPE. For
example, if an employee's PPE is damaged due to events occurring at
work, the employer cannot deny replacement by establishing a work rule
that turned-in equipment must be in serviceable condition. Such a
policy would subvert the final employer payment rule and the underlying
PPE requirements.
C. Guidance To Assist Employers With PPE Issues
The SGIA raised the issue of employers who have questions about
OSHA's PPE requirements, suggesting that:
OSHA needs to provide guidance and other training aids to assist
employers in the proper selection, care and use of PPE. The vast
majority of printers are very small businesses. In fact 80% having
less than 20 employees, and do not possess the resources to
undertake a proper evaluation themselves or hire an outside
consultant to do it for them. OSHA needs to provide basic and useful
information on this subject (Ex. 12: 116).
OSHA agrees that training aids are needed to help employers, and
most especially smaller employers, with a variety of PPE issues, and
the Agency has various resources and materials available to help
provide PPE information. OSHA has two Internet topics pages devoted to
PPE, one for construction and another for general industry employers
(look for ``personal protective equipment'' under the alphabetic index
at http://www.osha.gov). These include several resources, including the
OSHA PPE standards, electronic aids called e-tools that will help
employers with selection and other PPE issues, and links to other PPE
resources on the Internet. OSHA also provides Publication 3151--
Personal Protective Equipment to employers and employees free of
charge. The publication discusses PPE hazard assessment and selection,
employee training, and various types of PPE that may be needed to
protect employees. Additionally, PPE is mentioned in many of OSHA's
hazard specific publications, such as those dealing with bloodborne
pathogens and chemical hazards.
While OSHA has provided the public with a variety of resources to
help them with PPE selection, training, and use, the Agency will
continue to look for ways to assist employers and employees with PPE
issues. The Agency will continue to provide information on the
Internet, and welcomes any specific suggestions on products or training
aids that would assist employers and employees with PPE issues.
However, the ultimate responsibility for ensuring the PPE is adequate
rests with the employer.
D. Transmission of Disease Through Shared Equipment
The Framing Contractors Association expressed a concern about PPE
that is shared among various employees and the potential for
contaminants or infectious disease to be passed from one employee to
the next. Their specific comment was ``We are also concerned that if
equipment is shared or reused by another person, there could be a
potential for the transfer of some diseases or possible contagious
infections caused by the poor hygienic conditions of sweat bands in the
hard hats or contaminates on eye glasses'' (Ex. 12: 207).
This is a long standing concern that occurs when PPE is used by
more than one employee. That is why OSHA's standards require PPE to be
kept in a sanitary condition. The standards do not prohibit the use of
shared PPE; therefore it is critical that employers ensure that PPE is
sanitized before it is provided to another employee.
E. Taking Home Contaminants on Clothing
The Building and Construction Trades Department noted that an
employee's family can be exposed to dangerous materials when an
employee takes them home on his or her PPE, noting:
[b]ecause employers, employees, and OSHA do not always recognize
the inherent hazards present in construction work, construction
workers routinely expose their families unknowingly to contaminants
from the job. Sometimes, these contaminants cause adverse health
effects to their families * * * If employers provide and control the
use of PPE effectively, these hazards could be significantly reduced
or eliminated (Ex. 12: 218).
OSHA agrees that employees and their families can be exposed to
hazardous substances inadvertently removed from the worksite on an
employee's PPE and many of OSHA's substance specific standards require
employers to prevent such contamination by controlling workplace
clothing, providing showers, and
[[Page 64375]]
separate dressing areas. However, there is not a comprehensive
requirement for employers to control all hazardous substances in this
manner. The Agency recommends that employers take every effort to limit
the spread of chemical contaminants through these and other mechanisms.
XIII. Other Alternatives Considered During the Rulemaking Process
During the development of the final standard, OSHA considered four
alternatives: (1) An exception for PPE that is personal in nature and
customarily worn off the job; (2) an exception for PPE used as a tool
of the trade; (3) requiring payment for all PPE without exception; and
(4) exempting high-turnover industries. For the reasons discussed
below, OSHA rejected these alternative approaches.
A. Requiring Employers To Pay for All PPE Except PPE the Employer
Demonstrated Was Personal in Nature and Customarily Worn Off the Job
The proposed rule specifically requested comment on alternative
regulatory text that would have required employers to pay for all PPE
except equipment that the employer demonstrated was personal in nature
and customarily used off the job (64 FR 15416). A few commenters
reacted favorably to this performance language alternative\14\. The
National Rural Electric Cooperative Association supported the
alternative approach, stating that ``[c]learly, any attempt to list all
PPE available for exception on a personalized, off-the-job rationale is
doomed to failure * * * [A]ny clarification of the general rule should
be by way of restating clearly the general rule and the traditional
exception available for all PPE that is personal and able to be used
off the job'' (Ex. 12: 221). Another commenter echoed this opinion,
stating that ``OSHA may be starting down a slippery slope by excluding
certain items considered personal in nature and not others. There are
numerous types of PPE including gloves, clothing, hearing protection
devices, footwear other than safety-toe footwear, which can be
considered personal in nature'' (Ex. 12: 134). Finally, the ASSE stated
that ``[i]f the Agency becomes involved in trying to prescribe
individual rules for PPE such as [for] welders, lumber industry
workers, etc. * * * [we] foresee the agency eventually being in the
quagmire of PPE deviations, exceptions, and directives'' (Ex. 12: 110).
---------------------------------------------------------------------------
\14\ With a performance-oriented approach, the Agency identifies
a goal to be achieved but does not specify the means by which it
must be achieved, in order to provide employers flexibility. See,
e.g., Secretary of Labor v. Pike Elec., No. O.S.H.R.C. 06-0166, 2007
WL 962965, at *10 (O.S.H.R.C. Feb. 5, 2007) (``The Secretary
promulgated Sec. 1910.269(n)(3) as a performance standard, in which
she specifies the hazard to be protected against while giving the
employer some leeway in achieving the desired result.'')
---------------------------------------------------------------------------
A representative of the UAW testified in opposition to the
performance oriented approach:
The notion that certain PPE items are personal in nature and
customarily used off the job is vague, overbroad, ambiguous, hard to
define, and will generate major difficulties in compliance and
enforcement. Molded earplugs, for example, are more personal than
shoes and may also be worn to the employee's benefit off the job. *
* * The UAW believes the alternative regulatory text on exceptions
is worse than the proposed text. * * * However, if the agency
insists on exceptions in the final rule, we would prefer the
proposed language which would very specifically identify the
excepted PPE rather than the alternative text (Tr. 242-244).
This view was shared by others as well (See, e.g., Exs. 12: 230, 24A,
24B; Tr. 281-282, Tr. 344). In its written comments, ISEA stated that
the proposed alternative would be ``difficult to define and
interpret,'' and that exempting PPE that is personal in nature is
``oxymoronic'' given that PPE must fit the individual employee in order
to be effective against hazards (Ex. 12: 230).
OSHA agrees with these commenters that the proposed alternative
performance language is too vague. It provides insufficient guidance to
employers and employees as to what PPE the employer should pay for in a
particular circumstance. Furthermore, it would be difficult for
compliance officers attempting to enforce the rule, since they would
have no clear basis for evaluating the employer's determination that
the exception was met in a given case. OSHA is concerned that the
vagueness of the alternative text would result in less protection for
employees. Without clearly specifying the parties'' responsibilities,
safety precautions may not be taken.
In contrast, the final rule sets forth clearly the PPE for which
the employer is not required to pay. These exceptions are supported by
the rulemaking record. Employers and employees will clearly understand
the PPE that must be paid for by employers and the PPE for which
employers and employees may negotiate payment. As discussed above, OSHA
believes this clarity will result in even greater benefits for
employers and employees.
B. Adding an Exception for PPE Meeting Criteria Reflecting Its Use as a
Tool of the Trade
OSHA also considered adding a specific exemption from the employer
payment rule for PPE considered ``tools of the trade,'' where the
employer could demonstrate that (1) the PPE could only be used by one
employee for reasons of customized fit or hygiene, and (2) it is
customary in the industry for employees to select and pay for the PPE.
In response to OSHA's 1999 proposal, several commenters argued that
employers should not be required to pay for PPE items that employees
now customarily purchase themselves and take with them from job to job.
After reviewing these comments, OSHA determined that more
information was needed on the nature and extent of such customary
practices to fully evaluate the impact of a final rule on various
industries. OSHA reopened the rulemaking record on July 8, 2004 and
solicited comment on whether and how a final rule should address
situations where PPE has been customarily provided by employees (69 FR
41221). The Agency received nearly 100 written comments in response to
the notice to reopen the record. OSHA received a variety of opinions on
tools of the trade, however most stakeholders considered the idea of
exempting certain tools of the trade from an employer payment
requirement as problematic.
Commenters representing labor interests generally opposed providing
an exception from the employer payment requirement for tools of the
trade. To the extent that any particular tool of the trade is PPE,
these commenters stated that employers should be responsible for
providing and paying for such equipment. They also cautioned that any
effort to classify PPE as tools of the trade was inappropriate and
would lead to confusion (Exs. 45: 1, 18, 21, 25, 32, 53). James August
of AFSCME wrote:
Further discussion on the issue of tools of the trade will cloud
rather than clarify the issues of what constitutes PPE and
employers' duty to provide safe working conditions. The term tools
of the trade is inappropriate for OSHA to use in the context of a
rule requiring employers to pay for most PPE. Tools of the trade
means equipment that is used to perform a specific job or task.
Personal protective equipment, by contrast, is not used to
accomplish a task, but rather to protect the worker from the hazards
that are associated with the job (Ex. 45: 1).
ISEA expressed a similar view, stating that ``[a] tool enables a worker
to perform a task. PPE protects the worker by using the tool'' (Ex. 46:
31).
[[Page 64376]]
Some employer representatives commented with similar views. These
representatives stated that what is considered a tool of the trade
varies greatly by industry and even within an industry. Therefore, OSHA
would have a difficult time specifically identifying, in a single rule,
all of the different types of PPE that fall into this category (Exs.
45: 3, 17; 46: 1, 3, 9, 13). Many employer representatives, however,
believed that some PPE should be excluded from an employer payment
requirement if the PPE meets certain criteria, including some criteria
that are typically used to describe tools of the trade. For example,
ORC stated:
ORC views the criteria that ``the PPE is expected to be used by
only one employee for reasons of hygiene or personal fit'' as
reasonable. ORC also views the concept of working for multiple
employers as reasonable. Equipment that must be fitted to an
individual worker or which becomes, through use, unsuitable for use
by another worker for hygienic reasons, coupled with a worker's
employment by, and frequent movement between, several different
employers, are criteria which argue against the general requirement
that each employer has an absolute responsibility to provide and pay
for all PPE (Ex. 46: 47).
ORC recommended that OSHA include a general exemption for PPE meeting
these criteria, but that OSHA not include an exemption based on
customary industry practice, as that would compromise the clarity of
the rule.
Two other representatives described common practices in their
industries with respect to payment for PPE. The International
Association of Drilling Contractors stated that employees in the oil
and gas well industry provide their own hard hats, safety boots,
gloves, coveralls (work clothes), general-use work gloves, winter
protection for cold weather and rain gear, including rubber boots, for
wet weather (Ex. 46: 30). A written submission from the Tree Care
Industry Association stated that ``[i]t is a longstanding practice for
the employee to show up for work in boots and other work attire that he
or she has paid for'' (Ex. 46: 44). The commenters also explained that
employees frequently move to perform work for multiple employers.
Two representatives of electric utilities stated that it was common
practice for employers to require employees to provide climbing
equipment including lineman's belts, leather work gloves, gaffs, hooks,
and boots (Exs. 45: 37, 42). Several other general industry employers
stated that it was customary for employees to provide certain types of
PPE and supported an exemption from employer payment for those items
(Exs. 45: 28, 30, 52; 46: 5, 12). A submission from a large
telecommunications company argued that while ``personal'' items such as
gloves, work clothes, and footwear should be exempt from a payment
requirement, all other PPE, including climbing equipment, should be
paid for by the employer (Ex. 45: 13).
OSHA also received many comments from representatives of the
construction industry who supported an exemption for PPE considered to
be tools of the trade. However, these comments indicate that the kinds
of PPE regarded as tools of the trade vary considerably among different
segments of the construction industry. One contractor who builds
concrete shells for high-rise structures stated that employees hired as
carpenters are required to have their own 4-point harness system, 2-
legged lanyards, and positioning chains or devices (Ex. 45: 5). A
representative from the NAHB wrote:
There are several articles of PPE that are considered ``tools of
the trade'' in residential construction. These include: hard hats,
safety glasses, work boots/shoes, and general duty gloves. There are
several reasons why these articles of PPE are thought to be tools of
the trade and should be excluded. First, it is customary for workers
to bring these items to the job-they are normally supplied (and paid
for) by workers and are carried with them from job to job or from
employer to employer. Workers are typically required to supply their
own tools and equipment for the job they are performing and PPE is
considered just another tool in their toolbox (Ex. 45: 26).
According to a representative of the Independent Electrical
Contractors, Inc., practices vary among establishments engaged in
electrical construction, with some employers paying for PPE while
others require employees to provide hard hats, safety glasses, gloves,
boots, and appropriate clothing (Ex. 45: 36).
Several representatives of the maritime industry supported an
exemption for welders'' PPE, indicating that it is customary in the
industry for welders to provide their own PPE. A representative from
the SCA stated:
SCA believes that safety equipment considered to be tools of the
trade should be excluded from the employer requirement for payment.
SCA members consider Personal Protective Equipment (PPE) and tools
of the trade to be two separate categories of equipment. PPE is
safety equipment provided by the employer that generally can be
sanitized and reissued. A tool of the trade is viewed as a piece of
safety equipment that is highly personal in nature and generally can
not be used by another employee * * * 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).
A submission from Northrop Grumman Ship Systems (NGSS) reflected a
similar view. With respect to welding leathers, welding jackets,
welding sleeves and gloves and welding shields, NGSS stated:
[t]his equipment presents classic examples of ``tools of the
trade,'' which employees traditionally bring with them to the job
and take with them when they leave it. There is good reason for this
as these items absorb perspiration and come into direct contact with
the employee's skin. As such, this equipment would be unsuitable for
reissue to another employee.
Similarly, other items such as hardhats and safety glasses are
individual and personal in nature since they must be adjusted to
conform to the employee's physical dimensions. They, too, must be
sanitized and repaired prior to reissue. With approximately 20,000
employees, NGSS would incur exorbitant expenses. Moreover, the
traditionally high turnover rate intrinsic to shipbuilding
aggravates this problem (Ex. 46-39).
OSHA believes that a PPE payment rule exempting equipment meeting
the criteria described above would fail to clearly indicate to
employers and employees when PPE had to be paid for by employers, and
would likely result in the Agency having to render numerous
interpretations of the rule as it applied to specific situations. For
example, while there was some agreement in the record that certain
climbing gear and welding equipment were considered tools of the trade
in some industries, the record reflects considerable disagreement as to
the other types of PPE that are considered tools of the trade.
The record also shows that PPE considered tools of the trade in one
industry may not be considered tools of the trade in another industry.
Therefore, while welding equipment may be considered tools of the trade
in parts of the maritime industry, they may not be considered tools of
the trade in general industry (e.g., manufacturing plants). There is
also evidence in the record that even within the same industry, there
is disagreement as to what is considered a tool of the trade. Employers
would have great difficulty determining whether a particular type of
PPE is considered a tool of the trade and whether they would be
responsible for paying for it.
[[Page 64377]]
It would also be difficult for OSHA to verify the types of PPE that are
customarily provided and paid for by employees in a given industry.
These differences in the way that certain PPE is treated in specific
industries makes this alternative impractical. Accordingly, OSHA
believes that this alternative is too vague and would create confusion
among employers and employees.
C. Requiring Payment for All PPE Without Exception
OSHA considered requiring employers to pay for all PPE, without any
exceptions. Many commenters supported this alternative (See, e.g., Exs.
12: 100, 19, 22A, 25, 26A, 37; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366,
Tr. 463-464). They argued that PPE is part of the hierarchy of
controls. Therefore, just as OSHA would not ask an employee to pay for
engineering or administrative controls, the Agency should not expect
employees to pay for any PPE. For example, the AFSCME strongly objected
to any exceptions, stating:
According to OSHA's own reasoning, there is no rational basis
for distinguishing the use of PPE from other types of controls, and
the responsibility of paying for the protection should, in each
case, rest with the employer. Safety-toe protective footwear and
safety eyewear are clearly forms of PPE. Therefore, employers should
be required to pay for safety-toe footwear and safety eyewear.
Employers should be required to pay for such protective foot and
eyewear regardless of whether such footwear is worn off the job-site
(Ex. 12: 100).
During the public hearing, Jackie Nowell, Director of the Occupational
Safety and Health Department of the UFCW testified:
OSHA standards are not ambiguous about who pays for engineering
or administrative controls, and we don't believe they are ambiguous
about the payment for PPE. The OSH Act requires employers to provide
a safe and healthy workplace for American workers.
Again, employers are mandated to control hazards through a
hierarchy of controls, preferably engineering and administrative.
And when those fail to abate or reduce the hazard, then the employer
is allowed to utilize PPE, but also to pay for it (Tr. 173-174).
In their post-hearing comments, the United Automobile, Aerospace &
Agricultural Implement Workers of America (UAW) also urged OSHA to
eliminate the proposed exemptions. They argued:
The UAW believes that the employer's responsibility to pay for
necessary and required PPE is consistent with both OSHA law, logic
and good safety practice * * * [M]any states already interpret their
standards to require employers to pay for PPE * * * Treating PPE
differently from other controls is illogical and violates the
hierarchy of controls * * * OSHA's proposal to continue the
exemption for shoes and glasses is a lost opportunity to correct a
previous error, and restore a logical scheme for allocating costs of
protection against hazards (Ex. 23).
A representative of the Teamsters stated, ``[w]e believe that all PPE
required to protect employee health and safety should be paid for by
the employer regardless of whether they are personal in nature and/or
customarily used off the job'' (Tr. 342).
OSHA rejected this alternative for three main reasons. First, as
explained in the Legal Authorities section, OSHA does not agree that
the OSH Act can be read to require employers to pay for all PPE without
exception. The Agency does not believe that Congress intended for
employers to pay for the types of PPE exempted in the standard, such as
everyday work clothing and weather-related equipment. Second, requiring
employer payment for all PPE without exception would not be a cost
effective means of protecting employees. The cost of requiring
employers to pay for safety shoes, certain everyday clothing, weather-
related protective gear, sunscreen, etc. would be quite high and OSHA
believes unnecessary given existing practices in most industries. The
Agency estimates that requiring employers to pay for protective safety-
toe footwear would have added $220 million to the cost of the final
rule. Finally, the PPE exempted in the final rule is the type of PPE
OSHA has historically exempted from employer payment. OSHA sees no
reason based on the rulemaking record here, to deviate from its
longstanding position that certain PPE should be excluded from employer
payment.
D. Exempting High-Turnover Industries From an Employer Payment
Requirement
Finally, OSHA considered exempting high-turnover industries from
the PPE payment requirement. The record shows that one common reason
that employers do not pay for PPE is high turnover, such as in
situations involving day labor, or job- or situation-contingent hiring.
OSHA received many comments expressing concern about the costs to
employers in high-turnover industries of the payment requirement.
According to the National Maritime Safety Association (NMSA) and
the Pacific Maritime Association (PMA), an employer-payment requirement
is impractical in a hiring hall industry because each employer's work
force changes from day to day depending upon its manpower needs and the
seniority, skills and personal preferences of available employees (Exs.
12-172, 12-173). The NMSA stated further that it was not possible to
devise a system in which employer-purchased PPE could be distributed to
employees at the beginning of a work-shift, collected at the end of a
work-shift, and sanitized and redistributed to different employees at
the beginning of the next shift (Ex. 12: 172). The NMSA asserted that
employers would have no choice but to issue new PPE to employees every
day at substantial expense and with no additional safety benefit (Id.).
The United States Maritime Alliance Limited (USMX) argued that a
generic PPE payment requirement would be difficult for the maritime
industry given many employees work for multiple employers:
[I]n the marine cargo handling industry, labor pools are often
utilized to assign labor to a certain workplace. It is not uncommon
for a single employee to work at a different employer's facility
from day to day or even shift to shift. As such, any standard that
requires action, such as payment for PPE on an ``employer'' creates
significant confusion in an industry where a single employee may
have several employers. That is one reason why local port management
associations are often involved in providing such equipment (Ex. 45:
40).
The NAHB made a similar argument on behalf of its members. The NAHB
stated that some firms process 15 to 50 employees a week and that many
of them quit or are terminated in a matter of hours. Providing new PPE
to each new employee at a cost of $15 per person would be burdensome,
the NAHB argued, and would not lead to greater use of the equipment
(Ex. 12: 68). A representative of the oil and gas drilling industry
reported that the industry traditionally has a high turnover rate, with
one firm reporting an average turnover of almost 50 percent (Ex. 12:
9). A firm in this industry maintained that the cost of providing three
to four pairs of cotton gloves per week to its 4,300 well-servicing
employees would cost $804,960 annually and would have a significant
economic impact (Ex. 12: 19).
OSHA analyzed this alternative and determined that it was not
appropriate to deny the benefits of the final rule to certain employees
simply because they worked in industries with ``high turnover.'' The
OSH Act does not contemplate exempting employers from their obligations
to protect employees for that reason alone. This is particularly true
when there is no evidence that the final rule will create
[[Page 64378]]
feasibility problems in any of the industries affected.
Furthermore, such an exemption would be impractical. The rulemaking
record did not provide enough information for OSHA to specifically
identify high turnover industries for purposes of the exemption. In
particular, turnover depends greatly on size of employer, occupation,
and geographic area. Thus, for some large employers in a particular
industry, turnover may be low; however, for smaller employers in the
same industry there may be extremely high turnover. Furthermore, in the
same industry, there might be significant differences in turnover
depending upon particular jobs. So, welders in the construction
industry may experience great turnover, but crane operators may not.
Finally, in some areas of the country, there is high turnover in a
particular industry, but only moderate turnover in the same industry in
another area of the country. These real differences in turnover rates
make it difficult for OSHA to specifically exempt certain industries
from an employer payment requirement.
OSHA was also unable to identify a rate that it could consider
``high turnover'' for purposes of the exemption. Turnover rates vary
greatly; they can be as low as 5-10 percent or as high as 200 percent a
year. The Agency was not able to identify an appropriate cut-off point
for high turnover that could be used as a basis for exempting
industries from an employer payment requirement. Furthermore, turnover
rates fluctuate yearly. Thus, in one year an industry might have a 50
percent turnover rate, but a 25 percent rate in the following year. The
Agency was unable to devise alternative language that could account for
these fluctuations while providing employers with sufficient notice of
their compliance obligations. For all of these reasons, OSHA rejected
this alternative.
XIV. Legal Authority
A. Introduction
This rule is limited to addressing who must pay for the PPE that is
already required by existing PPE standards. The rule does not require
any new type of PPE to be purchased. Nor does the rule impose any new
requirements for PPE use.
The final rule is justified on two different bases. First, the rule
is interpretive in that it clarifies and implements a pre-existing
employer payment requirement implicit in the statutory scheme and the
language of OSHA's PPE standards. Part B of this section discusses
these implicit statutory and regulatory payment schemes. Second, the
rule is an ancillary provision further reducing the risks addressed by
the existing PPE standards. To be justified as an ancillary provision,
the rule need only be reasonably related to the PPE standards' remedial
purpose. Part C of this section discusses the final rule's health and
safety benefits.
B. The Final Rule Codifies an Employer Payment Requirement Implicit in
the OSH Act and the Wording of the Existing PPE Standards
1. An Employer Payment Requirement Is Derived From the Statutory
Framework
In the Agency's view, the final rule does no more than clarify a
requirement legally implicit under the Act. The Act makes employers
solely responsible for the means necessary to achieve safe and
healthful workplaces. This includes financial responsibility. Employers
are therefore responsible for providing at no cost to their employees
the personal protective equipment that is required because of workplace
hazards.
The language of the Act and its framework are indicia of this
requirement. At section 2(b) (29 U.S.C. 651(b)), Congress declared its
purpose and policy to ``[a]ssure so far as possible every working man
and woman in the Nation safe and healthful working conditions and to
preserve our human resources.'' To that end, Congress authorized the
Agency to issue safety and health standards and required each employer
to comply with the standards (29 U.S.C. 654(a)(2)).
The Act defines an occupational safety and health standard as one
which ``[r]equires * * * the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful places of employment'' (29
U.S.C. 652(8)). Congress gave to OSHA broad discretion to set standards
to prevent occupational injury and illness and to charge to employers
the cost of reasonably necessary requirements. United Steelworkers v.
Marshall, 647 F.2d 1189, 1230-31 (DC Cir. 1980), cert. denied, 453 U.S.
913(1981) (Lead).
In addition to the statute's requirement that employers comply with
standards, sections 9, 10 and 17 of the Act (29 U.S.C. 658, 659, 666)
set out a detailed scheme of enforcement solely against employers.
Atlantic and Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553 (3d.
Cir. 1976). Sections 9(a) and 10(a) (29 U.S.C. 658(a), 659(a)) provide
for the issuance of citations and notifications of proposed penalties
only to employers. Section 10(a) (29 U.S.C. 659(a)) refers only to an
employer's opportunity to contest a citation and notification of a
proposed penalty. Section 17 (29 U.S.C. 666) provides for the
assessment of civil monetary penalties only against employers. OSHA's
enforcement authority against employers--not employees--underscores
Congress's intent to hold employers responsible for creating safe and
healthful working conditions.
This statutory scheme is further supported by the OSH Act's
variance provisions, which provide that employers--but not employees--
may apply to OSHA for a temporary or permanent variance from compliance
with OSHA standards. Temporary variances allow employers additional
time to come into compliance with a standard when the employer
demonstrates that it cannot do so by the effective date due to the
unavailability of professional or technical personnel or materials or
because of necessary construction or alteration of facilities (29
U.S.C. 655(b)(6)). Permanent variances provide employers with
alternative means to protect their employees in lieu of specific OSHA
standards, provided these alternative measures are as protective as the
measures set forth in the relevant standards (29 U.S.C. 655(d)). These
provisions recognize that employers are responsible for complying with,
and paying for compliance with, OSHA standards and provide them
flexibility in achieving this compliance.
The Supreme Court confirmed that Congress intended employers to pay
for compliance with safety and health standards. In reviewing OSHA's
cotton dust standard, the Court interpreted the legislative history as
showing that Congress was aware of the Act's potential to impose
substantial costs on employers but believed such costs to be
appropriate when necessary to create a safe and healthful working
environment (American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S.
490, 519-522, 101 S. Ct. 2478, 2495-96, 69 L.Ed.2d 185 (1981) (Cotton
Dust). See also Forging Industry Ass'n. v. Secretary of Labor, 773 F.2d
1436, 1451 (4th Cir. 1985) (Noise); Lead 647 F.2d at 1230-31).
Several statements by members of Congress demonstrate that
employers would be expected to bear the costs of compliance with OSHA
standards. Senator Yarborough stated that ``[w]e know the costs [of
complying with the Act] would be put into consumer goods but that is
the price we should pay for the 80 million workers in America.'' (S.
Rep. No. 91-1282, 91st Cong., 2d Sess. (1970); H.R. Rep. No. 91-1291,
91st
[[Page 64379]]
Cong., 2d Sess. (1970), reprinted in Senate Committee on Labor and
Public Welfare, Legislative History of the Occupational Safety and
Health Act of 1970, (Committee Print 1971) at 444. Senator Cranston
stated:
(T)he vitality of the Nation's economy will be enhanced by the
greater productivity realized through saved lives and useful years
of labor. When one man is injured or disabled by an industrial
accident or disease, it is he and his family who suffer the most
immediate and personal loss. However, that tragic loss also affects
each of us. As a result of occupational accidents and disease, over
$1.5 billion in wages is lost each year (1970 dollars), and the
annual loss to the gross national product is estimated to be over $8
billion. Vast resources that could be available for productive use
are siphoned off to pay workmen's compensation and medical expenses
* * *. Only through a comprehensive approach can we hope to effect a
significant reduction in these job death and casualty figures (Id.
at 518-19).
Senator Eagleton stated it even more clearly: ``The costs that will
be incurred by employers in meeting the standards of health and safety
to be established under this bill are, in my view, reasonable and
necessary costs of doing business'' (116 Cong. Rec., at 41764, Leg.
Hist. 1150-1151).
Furthermore, Congress considered uniform enforcement against
employers crucial because it would reduce or eliminate the disadvantage
that a conscientious employer might experience where inter-industry or
intra-industry competition is present. ``[M]any employers--particularly
smaller ones--simply cannot make the necessary investment in health and
safety, and survive competitively, unless all are compelled to do so''
(Leg. Hist. at 144, 854, 1188, 1201).
Nothing in the legislative history suggests that Congress intended
that compliance costs should be borne by employees. Congress sought to
maintain the standard of living of working men and women and did not
contemplate that employees' pay and benefits would be sacrificed to
achieve safe and healthful workplaces. For example, the Senate report
notes that employers are bound by the ``general and common duty to
bring no adverse effects to the life and health of their employees
throughout the course of their employment. Employers have primary
control of the work environment and should ensure that it is safe and
healthful'' (Leg. Hist. at 149).
Therefore, as seen in the statutory text and legislative history,
Congress conclusively determined that OSHA regulation is necessary to
protect employees from occupational hazards and that employers should
be required to reduce or eliminate significant workplace health and
safety threats. This includes a concomitant financial responsibility to
pay for the measures necessary to that end. Congress plainly viewed the
costs of compliance with the Act as a type of ordinary business expense
that employers would be expected to bear in order to reduce employee
exposure to safety and health hazards (Cotton Dust, 452 U.S. 490, 519-
521 (1980)).
PPE is a means to ensure the safety and health of employees, just
as engineering, administrative, and work practice controls are. There
is no principled distinction between these other control methods and
PPE for purposes of cost allocation (See UAW v. Pendergrass, 878 F.2d
389, 400 (D.C. Cir. 1989)). For example, in the Cancer Policy
rulemaking in 1980, OSHA found no distinction, for payment purposes,
between engineering controls and personal protective equipment
necessary to protect employees from exposure to carcinogenic
substances:
The requirement that employers pay for protective equipment is a
logical corollary of the accepted proposition that the employer must
pay for engineering and work practice controls. There is no rational
basis for distinguishing the use of personal protective equipment
[from other controls]. The goal in each case is employee protection;
consequently the responsibility of paying for the protection should,
in each case, rest on the employee (45 FR 5261, Jan. 22, 1980).
Many commenters to the rulemaking agreed that the OSH Act requires
employer payment for PPE. The ASSE agreed that the OSH Act's mandate
requiring employers to provide a safe and healthful workplace for their
employees ``[i]ncludes the financial obligation of employers to provide
controls to address hazards that could cause injury or physical harm to
their employees. The majority of ASSE members reviewing this proposal
generally agreed that most PPE is covered under the Act'' (Ex. 12:
110).
AFSCME stated that it ``wholeheartedly concurs'' with OSHA's
rationale that ``[t]he requirement that employers pay for PPE is a
logical corollary of the accepted proposition that the employer must
pay for engineering and work practice controls'' (Ex. 12: 100).
The International Brotherhood of Teamsters stated that
``[r]equiring employers to provide personal protective equipment at no
cost to employees will only clarify the OSH Act's implicit legal
requirements and its legislative history, as discussed in the preamble.
The OSH Act clearly charges employers with the responsibility for
achieving safe and healthful workplaces'' (Ex. 12: 190).
The AFL-CIO commented that ``[t]he language, intent and legislative
history of the Act all support the principle that employers are
required to provide and pay for the measures necessary to protect
workers by controlling hazards which pose a risk of injury, illness, or
death to their employees'' (Ex. 12: 19-1). Therefore, the AFL-CIO
supports a rule that ``codifies an employer's responsibility to pay for
personal protective equipment'' (Id.).
Some commenters, however, disagreed that the OSH Act sets forth
requirements on cost allocation. As a matter of statutory construction,
some commenters suggested that the only place Congress set forth
requirements related to costs was in section 6(b)(7) for medical
examinations. Section 6(b)(7) provides that ``[a]ny such standard shall
prescribe the type and frequency of medical examinations or other tests
which shall be made available, by the employer or at his cost'' (29
U.S.C. 655(b)(7)). OSHA disagrees with these commenters.
These comments, taken to their logical extreme, suggest that
employers would pay for nothing under the Act except medical
examinations or other tests. That means that employees could be asked
to pay for everything else--their own training, engineering controls,
air sampling, the setting up of regulated areas, housekeeping measures,
recordkeeping, and all other protective measures--required under the
Act and OSHA standards. Such a reading of the Act would be contrary to
the purpose and legislative history of the Act placing responsibility
for compliance with employers, as discussed above. The argument was in
fact rejected in Lead, 647 F.2d at 1232:
Th[e] maxim (expressio unius est exclusio alterius) [ ``the
expression of one is the exclusion of another''] is increasingly
considered unreliable * * * for it stands on the faulty premise that
all possible alternative or supplemental provisions were necessarily
considered and rejected by the legislative draftsmen. Thus it is
incorrect to say that because Congress expressly required that
standards prescribing the type and frequency of medical examinations
or other tests shall be made available, by the employer or at his
cost, that Congress prohibited OSHA from using its broad rulemaking
authority to require employer payment for other employee rights,
where it determines, after rulemaking, that such rights are
necessary to enable the agency effectively to carry out its
responsibilities.
Some commenters claimed that there are fundamental distinctions
between engineering controls and PPE that warrant different cost
treatment under
[[Page 64380]]
the Act. UPS argued that the primary difference between engineering
changes and PPE is ``[c]lear and simple: employers own the equipment
they make engineering changes to--it is part of their facility--but by
definition [PPE] typically is owned by employees: that is why it is
personal'' (Ex. 12: 189, p. 19). The SHRM stated that PPE, unlike
engineering or work practice controls, ``[i]s in the personal care of
the employee, and the employee plays a direct role in the selection,
use, sizing, adjusting, care, storage, and control of [the] PPE.'' SHRM
also stated that ``[t]he employee is generally in a far better position
than the employer to ensure that personally-assigned PPE is properly
maintained, used, and stored'' (Ex. 46: 43, p. 19-20).
OSHA is not convinced by these arguments. As an initial matter,
OSHA disagrees that by definition PPE is typically ``owned'' by the
employee. In fact, the record in this rulemaking suggests the opposite.
With a few exceptions--safety-toe shoes and everyday clothing--
employers typically provide the PPE to their employees and expect the
employees to return the PPE at the end of the day or at the completion
of their work for the employer. The record does not support UPS's
position that employees typically ``own'' such PPE as protective eye
wear, chemical protective gloves, harnesses, lanyards, ladder safety
device belts, rubber gloves and sleeves, logging chaps, supplied air
respirators, encapsulating chemical protective suits, life preservers
and life jackets, retrieval systems, and the like. OSHA is also not
swayed by SHRM's arguments that employees are in a better position to
maintain, use, and store PPE. In fact, the existing PPE standards place
on employers the responsibility for ensuring proper fit, use, and
maintenance of PPE.
The crux of OSHA's position is that PPE is an important control
measure required by OSHA standards. While PPE is considered the last
line of defense and OSHA has stated a preference for engineering, work
practice, and administrative controls, it is still an important type of
protection utilized by millions of employees every day. Simply because
PPE is not a part of or attached to an employer's facility does not
mean that it provides a different protective function. Like other
control measures, it protects employees from safety and health hazards
in the worksite and should not be treated categorically differently for
payment purposes than other control measures.
Other commenters contended that OSHA's interpretation of the Act
ignores the many references to employee responsibilities in the statute
(Exs. 12: 189; 46: 43) In particular, these commenters cited the
language of section 5(b) of the Act, which requires that each
``[e]mployee shall comply with occupational safety and health standards
and all rules, regulations, and orders issued pursuant to this Act
which are applicable to his own actions and conduct'' (29 U.S.C.
654(b)).
There is no doubt that Congress expected employees to comply with
safety and health standards. It is also true that Congress believed
that employee cooperation in safety and health was critical to ensuring
safe and healthful workplaces. What Congress did not intend, however,
was for employees to bear the cost of ensuring that their workplaces
were safe and healthy. That is why section 5(b) of the Act focuses on
an employee's ``own actions and conduct.'' It is also why Congress made
it clear that the ``[e]mployee-duty provided in section 5(b) [does not]
diminish in any way the employer's compliance responsibilities or his
responsibility to assure compliance by his own employees. `Final
responsibility for compliance with the requirements of this act remains
with the employer' '' (S. Rep. No. 91-1282, U.S. Cod Cong. & Admin.
News 1970, p. 5187).
The role of employers and employees under the OSH Act was
specifically addressed by the Third Circuit in Atlantic & Gulf
Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3d. Cir. 1976). In holding
that Congress did not confer power on OSHA to sanction employees for
violations of the Act, the court set forth clearly that employers are
ultimately responsible for ensuring that their workplaces are safe and
healthy. Employers thus cannot shift financial responsibility for
ensuring safe and healthful workplaces to their employees.
Finally, and more fundamentally, some commenters suggested that
this rule was purely an economic rule and that the OSH Act does not
give OSHA authority to resolve economic issues. UPS and PMA both
asserted that ``OSHA's health and safety mandate does not permit it to
invade collective bargaining with this purely economic rule'' (Exs. 12:
173, 189). The SCA had concerns about OSHA's ``[a]ttempt to regulate
wages * * * which is not part of OSHA's mandate and accordingly, should
not be subject to OSHA regulation'' (Ex. 12: 65). The NMSA stated that
``OSHA simply has no jurisdiction over employee compensation'' (Ex. 12:
172).
These commenters misunderstand this rule and the requirements of
the OSH Act. The issue is not whether a particular requirement deals
with economics in some way, the proper test is whether the requirement
will help reduce significant risk of injury and death, thereby
protecting the safety and health of employees. In fact, Congress
confirmed this by specifying that employers must bear the costs of
complying with OSHA standards. As explained more fully below, this rule
is directly related to protecting the safety and health of employees
and will result in substantial safety benefits.
These comments also do not consider the approximately 20 general
industry safety and health standards OSHA has issued requiring
employers to pay for PPE. Many of these standards have been challenged
and upheld by the courts. For example, in Noise, 773 F.2d at 1451-1452,
the court upheld the requirement in the hearing conservation standard
that employers must pay for hearing protectors, finding that the
requirement was reasonably related to the standard's purpose of
reducing the risk associated with occupational noise exposure. No court
has struck down OSHA's standards requiring employers to pay for PPE
because they were outside of the Agency's statutory mandate.
a. Exceptions
As set forth in more detail in section V, the final rule contains
certain exceptions to the general rule that employers must pay for
required PPE. These exceptions include certain safety-toe protective
footwear and prescription safety eyewear, logging boots, and everyday
clothing such as long pants, long sleeve shirts, and normal work boots.
Including these exceptions to the final rule is consistent with the OSH
Act and its cost allocation scheme.
As stated above, the Agency agrees with the general principle that
employers' legal responsibility for compliance with OSHA standards
implies a concomitant financial responsibility to pay for the measures
necessary to that end. OSHA also concludes that this requirement
applies to most types of PPE. PPE cannot be categorically segregated
from other types of control measures for payment purposes. This is one
of the fundamental underpinnings of the final rule. OSHA has concluded
that a general employer payment requirement will effectuate the OSH
Act's implicit cost-allocation scheme and reduce the risk of injuries,
illnesses, and fatalities.
However, acceptance of these principles does not mean that the OSH
[[Page 64381]]
Act prohibits exceptions to the employer-payment rule. There are
certain narrow circumstances where OSHA believes that Congress did not
intend for employers to have to pay for PPE. And Congress expected OSHA
to make reasonable judgments as to the types of PPE that fit in this
category. OSHA has recognized these situations in the past and the
record in this rulemaking supports these determinations.
In its earliest interpretation of the issue in the Budd case, the
Agency stressed that safety-toe shoes have certain special
characteristics that separate it from most PPE for purposes of cost
allocation. In her brief in Budd, the Secretary stated that:
[b]y tradition, in this country shoes are considered unique
items of a personal nature. Safety shoes are purchased by size, are
available in a variety of styles, and are frequently worn off the
job, both for formal and casual wear. Furthermore, it is neither
feasible for a different employee to wear the shoes each day nor
feasible that upon resigning from the position an employee will
leave the shoes behind to be worn by another individual.
In the safety standard on logging operations, OSHA determined that
logging employers should pay for protective equipment for the head,
eyes, face, hands, and legs, but should not be required to pay for
logging boots. OSHA excepted logging boots from among the types of
equipment that employers must purchase for several reasons. The Agency
found that logging boots, unlike other types of personal protective
equipment, are not reusable. OSHA also noted that logging boots are
readily portable, and unlike head and leg protection, are sized to fit
a particular employee. Finally, the Agency noted that there was
evidence in the record that employees use their logging boots away from
work.
In the 1994 memorandum ``Employer Obligation To Pay for Personal
Protective Equipment'' OSHA also stated its policy that ``[w]here
equipment is very personal in nature and is usable by workers off the
job, the matter of payment may be left to labor-management
negotiations.'' The memorandum also gave examples of this type of
equipment, including safety shoes, non-specialty safety glasses, and
cold-weather outerwear.
OSHA does not believe that Congress intended for employers to have
to pay for the types of PPE excepted in the final rule. This list
includes non-specialty safety-toe shoes and boots, everyday clothing,
cold weather gear, and normal work boots. While serving a protective
function in certain circumstances, this equipment has either been
historically exempted by OSHA from employer payment (e.g., safety-toe
shoes), the item is often used off the job, or is equipment that
employees must wear to work regardless of the hazards found. For
example, an employee who works at a computer terminal may have to wear
a pair of long pants to work (due to a company policy), even though
wearing long pants is not required for safety reasons. But, a tree
trimmer may have to wear long pants to work to provide protection from
tree branches and limbs, etc. In both instances, the employee has to
wear long pants to work. However, with respect to the tree trimmer, the
long pants also serve a protective function. In the Agency's view,
Congress simply did not intend for employers to have to pay for this
type of equipment, even though it admittedly serves a protective
function in certain circumstances. Congress intended the Agency through
its rulemaking function and in its standard-setting discretion to
identify those narrow circumstances where payment can be left to
negotiation between the employer and employee. These circumstances
include such considerations as whether the items are normally used off
the job or are items employees must wear to work regardless of the
hazards found.
OSHA's position in this final rule is also consistent with its past
interpretations of the issue, as detailed above. Since OSHA's earliest
interpretations on employer payment for PPE, it has made clear that
there are some exceptions to the employer payment rule. The principle
of employer payment cannot be stretched so far that it applies to all
protective equipment, in all circumstances, at all times.
2. An Employer Payment Requirement Is Implicit in the Wording of
Existing Standards
The requirement that employers pay for the means necessary to
achieve compliance is implicit in the statute itself, and therefore, is
properly an implied term of every occupational safety or health
standard. Properly viewed, this final rule clarifies an employer
payment requirement that had previously been implicit in those
standards.
In the proposed rule, the Agency set forth in detail its
interpretive history on the issue of employer payment for PPE. It also
discussed the holding in the Budd decision and why, in OSHA's view
Secretary of Labor v. Union Tank Car Co. (18 O.S.H. Cas. (BNA) 1067
(Rev. Comm.) 1997) was wrongly decided. OSHA received only a few
comments on this discussion; these comments asserted that the Union
Tank decision was correct in not reading the term ``provide'' as
requiring employer payment. OSHA continues to agree with the discussion
in the proposal and incorporates it in this final rule. Nevertheless,
OSHA reiterates here the main parts of the discussion because it
further supports OSHA's interpretation of the OSH Act as requiring
employers to pay for virtually all PPE.
From 1974 through October 1994, OSHA made a variety of statements
on the question of employer payment for PPE. The most authoritative
statements of the Agency's position are contained in OSHA's safety and
health standards promulgated through notice and comment. Since 1978,
OSHA has promulgated many safety and health standards explicitly
requiring employers to furnish PPE at no cost.\15\ In these
rulemakings, OSHA concluded that this explicit requirement effectuates
the cost allocation scheme of the OSH Act.
---------------------------------------------------------------------------
\15\ See 29 CFR 1910.95(i)(1), (i)(3) (hearing conservation); 29
CFR 1910.1001(g)(1), (g)(2)(i), (h)(1) (asbestos); 29 CFR
1910.1018(h)(1), (h)(2)(i), (j)(1) (inorganic arsenic); 29 CFR
1910.1025(f)(1), (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1)
(cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) (benzene); 29 CFR
1910.1030(d)(3)(i), (d)(3)(ii) (bloodborne pathogens); 29 CFR
1910.1043(f)(1), (f)(3) (cotton dust); 29 CFR 1910.1044(h)(1),
(h)(2), (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 CFR
1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR
1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 1910.1048(g)(1),
(h) (formaldehyde); 29 CFR 1910.1050(h)(2)(i), (i)(1) (4,4,
methylenedianiline); 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29
CFR 1910.1052 (g)(1), (h)(1) (methylene chloride); 29 CFR
1910.146(d)(4)(iv) (confined spaces); 29 CFR 1910.156(e)(1)(i) (fire
brigades); 29 CFR 1910.266(d)(1)(iii), (d)(1)(iv), (d)(1)(vi),
(d)(1)(vii) (logging); 29 CFR 1910.134(c)(4) (respiratory protection
standard); 71 FR 10100 (Feb. 24, 2006) (hexavalent chromium).
---------------------------------------------------------------------------
In 1978, OSHA promulgated a standard to protect employees from
cotton dust. That rule required employers to pay for respirators when
necessary to protect employees from exposure to this hazardous
substance (43 FR 27350, 27387 (June 23, 1978)). The Agency noted that
the language requiring employers to provide respirators ``[a]t no cost
to the employee * * * makes explicit the position which has long been
implicit in all OSHA health standard proceedings under section 6(b) of
the Act'' (Id). (internal quotations omitted) The Agency expressed a
similar view in the preambles for the 1,2-Dibromo-3-chloropropane
(DBCP) standard (43 FR 11514, 11523 (March 17, 1978)), the lead
standard (43 FR 52952, 52994 (Nov. 14, 1978)), the inorganic arsenic
standard (43 FR 19584, 19619 (May 5, 1978)), the benzene standard, (43
FR
[[Page 64382]]
5918, 5953 (Feb. 10, 1978)), the ethylene oxide standard, (49 FR 25734,
25782 (June 22, 1984)), and the asbestos standard, (51 FR 22612, 22697
(June 20, 1986)).
In other official agency actions during this same period, OSHA
interpreted and enforced its standards to require employers to pay for
personal protective equipment, carving out an exception limited to
uniquely personal items like safety shoes. In 1979, OSHA issued an
Interpretive Instruction clarifying that 29 CFR 1910.1029(h)(1), which
used the language ``shall provide,'' required employers to furnish
personal protective equipment for coke oven employees at no charge.
OSHA Instruction STD 1-6.4 (March 12, 1979). See also Erie Coke Corp.,
15 O.S.H. Cas. (BNA) at 1563 (citing this provision). A July 17, 1990,
Agency memorandum stated that although section 1910.132(a) does not
specifically allocate the costs of personal protective equipment to
employers, ``[i]t is our position that the employer is obligated to pay
for PPE which is not worn off the worksite. This includes welding
gloves, but not safety shoes * * *'' In September 1990, OSHA issued a
citation to a meatpacking firm alleging that it violated section
1910.132(a) by charging its employees for repair or replacement of
steel mesh gloves and plastic wrist bands used for protection against
knife cuts. The citation was not contested, and thus became a final
order of the Commission by operation of law (29 U.S.C. 659(a)).
On October 18, 1994, OSHA issued a memorandum to its regional
administrators and heads of directorates setting forth a national
policy with respect to PPE payment. The interpretation outlined in this
memorandum required employers to pay for all personal protective
equipment that is necessary for the employee to do his or her job
safely and in compliance with OSHA standards, except for equipment that
is personal in nature and normally used away from the worksite such as
steel-toe safety shoes. Before the 1994 memorandum was issued, OSHA
concedes that some Agency officials had provided responses to written
requests for information on 29 CFR 1910.132(a) suggesting among other
things that the provision was ambiguous on the subject of employer
payment and best resolved through collective bargaining, or that the
Review Commission's decision in Budd foreclosed an interpretation
requiring employer payment. The 1994 memorandum, however, was a
definitive statement on the issue of employer payment for PPE and
reflected the Agency's position on the issue as seen in its most
authoritative statements made since 1974. OSHA subsequently issued a
national compliance directive, STD 1-6.6, incorporating this
interpretation and stating that violations of the policy would be
cited.
Despite this history, the Review Commission in Union Tank rejected
the claim that 29 CFR 1910.132(a) could require employer payment for
PPE. In March 1996, OSHA issued a citation alleging that the Union Tank
Car Company violated 29 CFR 1910.132(a) by requiring employees to pay
for metatarsal safety shoes and welding gloves. Upon review, the Review
Commission issued a decision vacating the citation (18 O.S.H. Cas.
(BNA) at 1067-8). Citing its earlier decision in Budd, the Review
Commission concluded that 1910.132(a) could not be interpreted to
require employers to pay for personal protective equipment (Id. at
1068). The Review Commission believed that the Secretary's position on
the issue was contrary to previous statements on employer payment for
PPE and thus, was a departure that was not thoroughly explained.
The Review Commission's holding in Union Tank and its
interpretation of 29 CFR 1910.132(a) misstates OSHA's historic position
on payment for personal protective equipment. Moreover, while two
commenters to the rulemaking record argued that Union Tank was
correctly decided (Exs. 12: 173, 189), OSHA believes the case was
wrongly decided. As described above, OSHA's official interpretations
from 1974 onward consistently favored employer payment for PPE. This
view was expressed in a variety of official agency actions, including
rulemaking proceedings under the Act, agency memorandums and
directives, and citations. This historic position belies the Review
Commission's finding that the 1994 memorandum and STD 1-6.6 announced a
wholly new national policy.
The Review Commission's mischaracterization of OSHA's historic view
also stems in part from its erroneous reading of Budd and the
Secretary's position in that case. In Budd, the respondent's employees
were working without safety-toe shoes (1 O.S.H. Cas. (BNA) at 1549).
The Secretary issued a citation alleging a violation of 29 CFR
1910.132(a) for the employer's failure to provide such shoes (Id).
Prior to the hearing, the employer moved to withdraw its notice of
contest on the understanding that its obligation to provide safety
shoes did not include the requirement to pay for them (Id). The
Secretary agreed that the employer was not required to pay for the
shoes because of their special characteristics as uniquely personal;
however, the union representing the employees objected on the ground
that the standard required employer payment (Id). Reviewing this motion
to withdraw the citation, the Review Commission held that Sec.
1910.132(a) did not require the employer to pay for such shoes, with
each Commissioner expressing a distinct reason for such. In Union Tank,
the Review Commission erroneously characterized this holding as
interpreting ``provide'' as used in Sec. 1910.132(a) as foreclosing
employer payment (18 O.S.H. Cas. (BNA) at 1067-8). The Commission also
described the Secretary as having acquiesced to this holding, rendering
its later position in the 1994 memorandum historically ``unsupported''
``[a]fter twenty years of uninterrupted acquiescence in the
interpretation the Review Commission announced in Budd'' (Id. at 1069).
OSHA believes that the Review Commission in Union Tank was,
however, incorrect on both points. First, Budd did not broadly hold
that ``provide'' in Sec. 1910.132(a) can never be interpreted to mean
``pay for.'' Although the Review Commission in Budd did agree that
Sec. 1910.132(a) did not require the employer to pay for safety shoes,
the Review Commission did not announce a majority opinion extending
this conclusion beyond safety shoes. Only one Commissioner, Van Namee,
opined that Sec. 1910.132(a) broadly foreclosed employer payment for
all protective equipment (1 O.S.H. Cas. (BNA) at 1549-50). The
remaining Commissioners wrote separate opinions, one limiting his
holding to the particular facts of the case and the particular context
of safety shoes (Commissioner Cleary Id. at 1552-3) and one concurring
without stating a rationale (Commissioner Moran, Id. at 1553-4).
Because these two other Commissioners filed separate opinions
announcing distinct rationales, Van Namee's view of ``provide'' as
universally foreclosing employer payment is not the Commission's
official holding (See Atlantic Gulf & Stevedores v. OSHRC, 534 F.2d at
546). Claims to the contrary, made by both the UPS and the PMA in
comments to the proposed rule (Exs. 12: 189, 179), ignore the
limitations of the Review Commission's decision.
The Secretary's position in Budd was similarly limited to the
particulars of safety shoes and did not, as the Review Commission in
Union Tank suggested, adopt a broader interpretation foreclosing all
employer payment for protective equipment. In her Brief in Budd, the
Secretary conceded that
[[Page 64383]]
employers should not be required to pay for safety shoes. The
Secretary, however, stressed the special characteristics of safety
shoes, including their uniquely personal nature and their potential use
outside the employment site (Brief of the Secretary, served January 10,
1973, at 8). The Secretary did not, however, extend this rationale
beyond safety shoes to foreclose all employer payment for protective
equipment. Rather, the Secretary emphasized that an interpretation
requiring employers generally to provide personal protective equipment
free of charge would be consistent with the statutory scheme. She also
noted that the Act's legislative history demonstrated Congress's intent
to place the costs of achieving safe and healthful workplaces upon
employers (Id. at 10). The Secretary concluded: ``Personal protective
equipment cannot be segregated from equipment necessary to provide
proper working conditions and therefore the purchase of such equipment
by the employer was contemplated by the Act in cases where a standard
might require it'' (Id. at 10-11).
Thus contrary to the Review Commission's suggestion in Union Tank,
the Secretary has never, in Budd or elsewhere, characterized
``provide'' as used in 29 CFR Sec. 1910.132(a) as foreclosing employer
payment. If anything, the Secretary's position in Budd recognized a
general rule of employer payment limited only where equipment, like
safety shoes, are uniquely personal. This position, like the position
taken in Union Tank and articulated in this final rule, is consistent
with OSHA's historic approach to 29 CFR Sec. 1910.132(a) and employer
payment for PPE generally. It is further evidence of the Agency's
longstanding position that the OSH Act requires employers to pay for
PPE.
C. The Final Rule Is an Ancillary Provision Reasonably Related to the
Purposes of the Underlying PPE Standards
Separate from making the basic cost allocation scheme of the OSH
Act explicit in the PPE standards, the final rule is justified as a
legitimate exercise of OSHA's rulemaking authority to promulgate
provisions in its standards to help reduce significant risk. The
existing PPE standards reflect a determination that the use of PPE is
necessary to reduce a significant risk of injury and death. Once OSHA
has determined that a significant risk of material impairment of health
or well being is present, and will be reduced by a standard, the Agency
is free to develop specific requirements that are reasonably related to
the Act's and the standard's remedial purpose. This final rule is
placing ancillary provisions in the existing standards requiring PPE
use. Thus, OSHA must demonstrate only that requiring employees to pay
for PPE is reasonably related to the remedial purpose of the PPE
standards and will help reduce significant risk. OSHA finds that the
final rule meets this test.
Requiring employers to pay for PPE used to comply with OSHA's
standards is a classic ancillary requirement. It helps to ensure that
the PPE is used properly by employees to protect them from injury and
death. OSHA has included employer payment provisions as ancillary
provisions in numerous past rules, as described above. In those
rulemakings, the requirement was promulgated at the same time as the
other provisions of the standard to help reduce significant risk. In
this rule, of course, OSHA is adding the explicit employer payment
requirement in a separate rulemaking action. However, by doing so, OSHA
does not change the fundamental nature of the requirement. At bottom,
this final rule adds an ancillary provision to certain PPE standards to
help reduce a significant risk of injury.
After a thorough review of the rulemaking record, OSHA concludes
that requiring employer payment for most types of PPE increases the
effectiveness of the existing PPE standards in several ways: (1) The
requirement encourages a greater degree of usage of PPE by eliminating
a financial disincentive to such use; (2) it increases the degree of
employer control over PPE selection and maintenance, thereby increasing
the effectiveness of the employer's safety program; and (3) the
requirement indirectly fosters a greater degree of employee cooperation
in employer safety programs by demonstrating the employer's financial
commitment to safety.
First, the reason employer payment will result in improved safety
is primarily a matter of economics, and how employees' and employers'
behavior regarding PPE is affected by their financial situations. In
the proposed rule, OSHA cited enforcement cases that documented
instances where financial considerations played an important role in
employee use of damaged and unsafe PPE (Id. at 15407). For example, in
Ormet Primary Aluminum Corp., OSHRC Docket No. 96-0470, an employee
testified that he continued to wear safety boots, even though the
protective steel toes were exposed and posed an electrocution hazard,
because he could not afford a new pair. The employee also testified
that some employees put a cement-like substance over the steel toes of
their boots when the leather covering wore away, but that this practice
was hazardous because the substance was flammable (Id). OSHA also
referred to the Union Tank case, in which the employee representative
presented an affidavit that some employees taped or wrapped wire around
their damaged metatarsal safety boots in order to avoid having to pay
up to $130 per pair to replace them (Id).
The rulemaking record also strongly supports OSHA's position. As
several commenters noted, when lower-wage employees are required to
provide their own PPE, they are likely to avoid PPE costs and thus fail
to provide themselves with adequate protection. David Daniels of the
United Steelworkers of America noted that ``The welders have to
purchase their leathers, gloves and metatarsal boots. The welders will
take their leathers when the top of the sleeves are burnt with holes in
them and turn the leathers over which exposes the bottom of the
employee's arm to heat, hot metal or open flame'' (Tr. 375). Similarly,
John Molovich, also with the United Steelworkers of America stated
that:
Workers in some cases do not earn sufficient wages to pay for
all the things that are necessary to support themselves and their
families. As a result, some things are either overlooked or
eliminated, and in many cases it would be the PPE they use at work.
Even if they do purchase the PPE, it is usually the cheapest and in
most cases the most ineffective. This is merely human nature (Tr.
370).
In response to OSHA's reopening of the record on tools of the trade,
AFSCME stated:
Failure to require employers to pay for PPE would also cause an
unreasonable burden on lower paid workers. Workers at risk would be
asked to choose between paying for their PPE and providing basic
needs for their families * * *. The likelihood that worker
protection would be diminished would be even greater for employees
whose language and literacy levels may present barriers to the
appropriate selection and use of PPE (Ex. 45: 1).
Some commenters provided specific examples of instances where
having employees pay for PPE could contribute to an increased risk of
injury. Jackie Nowell of the UFCW testified that:
[W]hen workers are given the choice between a full week's pay
and a new metal glove [to reduce risk of injury from sharp cutting
tools] they'll choose the paycheck. The gloves get holes in them and
the workers sew them together rather than spend $65 for a new one
(Tr. 184-185).
[[Page 64384]]
The evidence suggests that lower wage employees are less likely to
purchase adequate PPE and replace it when necessary, and are more
likely to make cosmetic repairs, hide defects, purchase used PPE aged
beyond its service life, or fail to keep the PPE in proper working
order. After carefully reviewing the rulemaking record, OSHA is
convinced that allowing employers to charge employees for PPE will
result in greater use of unsafe PPE.
OSHA also believes that employees will be more inclined to use PPE
if it is provided to them at no cost. As with any product, when PPE is
available at lower cost, the employee will be inclined to use it more
readily. One could argue that since it is the employee's safety that is
at stake, the employee will be more inclined to purchase the best PPE
available on the market. Unfortunately, as evidence in the record
suggests, when employees pay for their own PPE, some number of them
will not take this course, and as a result their safety will be
compromised (Tr. 104-105, 178, 184-185, 323, 370, 375; Ex. 19, 22A, 23,
23A, 25, 30, 43, 45; 13, 21, 36, 46: 1, 13, 45).
Employers'' natural economic behavior of reducing costs could also
result in some safety and health disincentives. The BCTD and the AFL-
CIO suggested that allowing employees to pay for PPE provides an
economic disincentive for employers to invest in engineering controls,
thus increasing risk to employees (Ex. 45: 21; Tr. 322-323). If
employers ignore the hierarchy of controls because they can shift the
cost of workplace safety to their employees, they may be choosing less
effective methods of mitigating hazards. By eliminating this incentive,
employers may be more inclined to implement more effective engineering,
administrative, and work practice controls, leading to improved safety
and fewer injuries and illnesses. This final rule eliminates any
economic incentives that employers may have to avoid more protective
control measures.
Second, OSHA believes that safety benefits will be realized by the
final rule because it will clearly shift overall responsibility for PPE
to employers. In past rulemakings, OSHA has concluded that requiring
employers to pay for PPE will result in benefits because it will
clearly make employers responsible for the control of the PPE (See 43
FR 19619 (May 5, 1978) (inorganic arsenic preamble); 46 FR 4153
(hearing conservation preamble)). Recently, OSHA promulgated a standard
to protect employees against exposures to hexavalent chromium (71 FR
10100 (Feb. 28, 2006)). In the final rule, OSHA required employers to
pay for needed protective equipment. The Agency stated that employer
payment was necessary because ``[t]he employer is generally in the best
position to select and obtain the proper type of protective clothing
and equipment for protection from Cr(VI)'' (71 FR 10355). In addition,
OSHA concluded that ``[b]y providing and owning this protective
clothing and equipment, the employer will maintain control over the
inventory of these items, conduct periodic inspections, and, when
necessary, repair or replace it to maintain its effectiveness'' (Id).
From the comments in this rulemaking, it is apparent that some
employers have shifted some PPE responsibility to their employees along
with the responsibility to pay for the equipment. Some went so far as
to suggest that employees have a better idea of the PPE required for
the work and should rightfully be selecting their own PPE. SHRM stated
that the employee ``[p]lays a direct role in the selection, use,
sizing, adjusting, care, storage, and control of [the] PPE'' and that
``[t]he employee is generally in a far better position than the
employer to ensure that personally-assigned PPE is properly maintained,
used, and stored'' (Ex. 46: 43, pp. 19-20).
OSHA believes that employees can provide any number of useful
suggestions about employers' PPE programs, including selection, use,
and care of PPE. However, outside of a few specialized fields, a newly
hired employee is not in a position to know the types of hazards they
will face, and the types of PPE they will need for protection from
those hazards. The employer who controls the workplace is much more
aware of the hazards encountered in that workplace and the protective
measures that are needed (Exs. 23, 46-13, 46-33; Tr. 104-105). This is
the rationale underlying the OSHA standards that require employers to
perform a hazard assessment to determine the types of PPE that are
needed (See, e.g., Sec. 1910.132(d) and Sec. 1915.152(b)).
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. As ASSE stated:
Employers correctly understand that their investment in proper
PPE is an economic investment in productivity as well as a means of
ensuring that workers go home safe and healthy each day. And to
drive home that investment, they have recognized that their own
involvement in PPE provides the best opportunity to ensure proper
and effective use of PPE on their job sites. Recognizing their
responsibility for identifying hazards, they provide the follow-
through necessary to address those hazards (Ex. 46-33).
UPS argued that employer payment would have no effect on PPE
selection because employers could select the correct PPE, purchase it,
and then charge employees for the items. It also argued that employers
could instruct employees to purchase a particular make, model, or
design of equipment from a particular location and require them to
present the equipment for verification before beginning work (See,
e.g., Ex. 189, p. 17).
OSHA agrees that employers could take these actions and some
employers use one or both of these practices now. However, OSHA does
not believe this practice is the norm; there are not likely to be very
many employers that use complex administrative systems to assure that
the PPE is appropriate when employees pay for the items. Additionally,
under these systems, employees continue to have an incentive to
underreport deficient or worn out PPE that needs to be replaced to
perform its protective function. OSHA believes that these types of
systems do not improve safety culture at the worksite, or encourage
employees to participate whole-heartedly in an employer's safety and
health program.
Therefore, OSHA believes that the scenario described by UPS is
administratively cumbersome for employers, is not widely practiced, and
does not provide a workable solution to the overall policy problem of
PPE non-use or misuse. Systems of this type, sometimes called ``company
stores'' are also likely to be criticized by those who believe the
employer is making money from administration of the system. As the ISEA
inquired, ``Should OSHA decide that employers can require that
employees pay for their PPE, ISEA asks OSHA to explain the mechanism it
would establish to ensure that employers do not overcharge employees''
(Ex. 46:31). Therefore, these commenters advance no sufficient
alternative and their reasoning is not sufficient to convince the
Agency that the PPE payment rule is not needed.
Third, employees may be less likely -++``+-++to participate whole-
heartedly in an employer's safety and health program when they must pay
for their own PPE, and employer payment for PPE may improve safety
culture at the worksite. In past rulemakings, this finding has been key
to OSHA's conclusions that employer payment will result in safety
benefits. In requiring employers to pay for hearing protectors
[[Page 64385]]
as part of the hearing conservation standard, for example, OSHA relied
upon the testimony of the director of the Safety and Health Department
of the International Brotherhood of Teamsters:
[an] employer's attempt to require its employees to purchase
their own personal ear protective devices would cause resentment
among the workers and clearly demonstrate to them the lack of
commitment on the part of their employer in preventing hearing loss.
Such a requirement would discourage the use of ear protective
devices and would create an adversarial atmosphere in regard to the
hearing conservation program (46 FR 4153).
OSHA found that the need to ensure voluntary cooperation by
employees was also an important reason to require employers to pay for
other protections in standards, including medical examinations and
medical removal protection (MRP). In promulgating the lead standard,
OSHA relied upon extensive evidence that employees' fears of adverse
economic consequences from participation in a medical surveillance
program could seriously undermine efforts to improve employee health
(43 FR 54442-54449 (Nov. 21, 1978)). OSHA cited data from numerous
sources to show that employees' concerns about the possible loss of
income would make them reluctant to participate meaningfully in any
program that could lead to job transfer or removal (Id). OSHA
promulgated the lead standard's MRP provision ``[s]pecifically to
minimize the adverse impact of this factor on the level and quality of
worker participation in the medical surveillance program'' (Id. at
54449).
The record in this rulemaking also supports this position. The ISEA
summed up the views of many commenters when it remarked:
A systematic PPE program, driven by management through the
organization, is an important factor in creating a positive safety
culture. Employers who provide and pay for PPE recognize that they
are not simply incurring a cost for equipment, but rather making an
investment by valuing their employees and avoiding the high direct
and indirect costs of injury, illness and death (Ex. 12:30).
Finally, OSHA is persuaded by the overwhelming consensus of
prominent occupational safety and health organizations that employer
payment for PPE will result in safer working conditions. OSHA carefully
examined the hundreds of comments to the rulemaking record that weighed
in on whether an employer payment requirement would result in safety
benefits. In doing so, OSHA identified the independent safety and
health organizations that commented in the record. Unlike the majority
of commenters, these organizations do not have a financial stake in the
outcome of the rulemaking, and they do not stand to gain or lose
economically whether employers or employees pay for PPE. Their sole
interest in the rulemaking lies in whether or not it will advance the
interests of occupational safety and health, and protect employees from
workplace injury, illness and death. It is thus appropriate for OSHA to
put particular weight on the comments of these organizations.
The National Institute for Occupational Safety and Health (NIOSH)
remarked that it has consistently recommended that employers pay for
all PPE required for the work setting, and shared OSHA's views that:
``[e]mployees may compromise their safety and health by
avoiding or delaying the purchase, maintenance, or replacement of PPE
if that must be done at the employee's expense'';
``when employers do not pay for and provide PPE, it may
not be worn or may be worn improperly, and it may not be cared for and
replaced appropriately''; and
``when employers do not pay for and provide PPE, incorrect
or poor quality PPE may be selected and worn by the employee'' (Ex. 12:
130).
The American College of Occupational and Environmental Medicine
(ACOEM), representing 7,000 occupational physicians, supported employer
payment for PPE, stating that: ``It is important that employers be
responsible for ensuring that the personal protective equipment
selected for use at their facilities is appropriate and maintained in
proper working order. We do not believe that this can be achieved if
employers are not directly involved in the purchase and maintenance of
that equipment'' (Ex. 12: 248).
The comments of the Mount Sinai Irving J. Selikoff Center for
Occupational and Environmental Medicine were based on experience with
the 7,000 employees per year they treat for occupationally related
disease and illness. They argued that employees cannot know the site-
specific safety and health issues before they start employment, which
could lead employees to have equipment that is incompatible with the
job site; that if employees purchase their own PPE, employer
supervision of PPE maintenance becomes more complex, which can lead to
less safety; that employees who pay for their own PPE are less likely
to bring up exposure concerns [with their employers]; and that employer
safety education is more complicated when employees pay for their own
PPE. They also argued that:
Lower income, non-English speaking, and immigrant workers are
most likely to be vulnerable to a shift in responsibility of
purchase. We know, from advising our patients about PPE, that money
is an issue for procurement and appropriate use. The purchase of a
pair of prescription safety glasses or shoes can represent a notable
burden to workers, whereas it represents operating costs for
employers. In an attempt to economize, lower quality equipment is
purchased, and equipment is not updated as it should be (Ex. 46:
35).
The American Association of Occupational Health Nurses (AAOHN),
representing 12,000 occupational health nurses in a wide variety of
industrial sectors supported the rule, noting that allowing employees
to choose their own PPE may pose administrative and enforcement
problems for employers. AAOHN also reported a situation where a
manufacturing facility allowed individual preference and selection for
safety eyewear and found that 70 percent of the female employees were
using glasses without safety lenses (Ex. 12: 32).
In its 1999 comments, the American Society of Safety Engineers
(ASSE), representing about 30,000 safety and health professionals,
noted that most employers already pay for PPE during the course of
their normal business operations, and that:
[m]any organizations benefit from the policy of paying for
personal protective equipment. The alternative for these
organizations could be the use of substandard equipment by
employees, inconsistent levels of employee protection, increased
numbers of injuries, illnesses and fatalities, and employers having
to expend resources on litigation to defend themselves.
ASSE also related several instances where employees were providing
their own eye protection, and failed to select eyewear meeting the OSHA
standards, resulting in OSHA citations. The employers had mistakenly
assumed that the employees were selecting the right equipment (Ex. 12:
110).
In its 2004 comments on tools of the trade, ASSE reaffirmed its
1999 arguments supporting PPE payment by employers and provided a list
of quotes from several of their member safety engineers that supplement
the views of OSHA's expert panel. Some of those comments are:
It is just good business to provide [and pay for]
equipment so that we control quality and type so that injuries are
prevented. I'm sure we save far more in the long run by preventing
injuries than we spend on PPE;
[[Page 64386]]
I have found that the PPE purchased by the employee to
be old and worn out;
Employees generally should not be allowed to bring
safety equipment on the jobsite * * * this insures that the
equipment is in good condition and can be utilized; and
Where people provide their own tools, let alone PPE,
there has been a resistance to keeping current with the best
equipment and practices. As an example, I have seen people with
sentimental value assigned to their hard hats that no longer meet
manufacturers' specifications (Ex. 46: 33).
There are also large numbers of comments from employers who
recognize the value of PPE payment, and supported some form of PPE
payment requirement (See, e.g., Exs. 12: 2, 4, 6, 9, 10, 12, 21, 58,
101, 105, 113, 117, 134, 149, 184, 190, 210, 218, 230, 247). Of
particular interest are the comments of the Voluntary Protection
Programs Participants' Association (VPPPA), whose members have all
implemented OSHA approved safety and health management systems. More
than 1,500 workplaces have successfully completed OSHA's Voluntary
Protection Program (VPP) evaluation and audits, and have workplace
injury and illness rates that are below the average for their industry.
VPPPA, as well as VPP companies that commented on the proposed rule,
supported employer payment for PPE (See, e.g., Ex. 12: 113). VPPPA
remarked that:
We commend OSHA for promptly moving forward in clarifying the
law regarding employer payment for PPE. The Secretary of Labor v.
Union Tank Car decision had little effect on our association's
members, who continue to believe that paying for their employees'
PPE is the most sound strategy for promoting a safe and healthy
workplace. We expect that with promulgation of this rule, more
workplaces will reach this conclusion and maximize protection for
their employees (Ex. 12: 113).
For these reasons, OSHA rejects the comments of some who argued
that the proposed rule would have no direct impact on safety and health
(see, e.g., Exs. 12: 14, 17, 22, 29, 31, 36, 41, 47, 55, 65, 73, 82,
90, 91, 120, 121, 140, 172, 194, 216, 225, 241) and that there was no
proof of safety and health benefits (see, e.g., Ex. 12: 173, 189). The
rulemaking record, examined as a whole, leads OSHA to the opposite
conclusion. There are significant safety and health benefits of
employer payment for PPE.
Some commenters argued that OSHA's estimate of the quantitative
benefits was unreliable because it did not factor in the different
types of jobs and PPE involved with the rule. The American Iron and
Steel Institute (AISI) found to be problematic the Agency's
quantitative estimate of the incidence of PPE non-use or misuse when
employees must pay for PPE as compared to employers paying for PPE.
AISI argued that the estimate assumes that the training and behavior of
employers and employees across all industries is the same, regardless
of the nature of the hazard, the level at which employees are
compensated, or whether there is a collective bargaining agreement
which addresses the purchase of PPE (Ex. 12: 188). OSHA agrees with
AISI that different employers and employees have different behaviors
regarding PPE. Therefore, the final rule may result in more safety and
health benefits (and more costs) for some employers, while it impacts
other employers less. However, as described above, the Agency believes
that the overall impact of the rule will result in fewer occupational
injuries and illnesses because it will improve the use of PPE in the
workplace.
Further, OSHA wants to emphasize that the quantitative benefits
estimate in the final rule is not based solely on the opinion of one
expert. OSHA has estimated the benefits of the final rule based on
three different assumptions. Even under the most conservative
assumption--that employer payment for PPE will result in a 2.25 percent
decrease in the misuse or nonuse of PPE--the final rule will prevent
approximately 2,700 injuries per year across all industries affected, a
substantial number of injuries avoided. (For a complete discussion of
OSHA's benefits analysis, see section XV below.)
Finally, some commenters argued that there was contrary evidence to
OSHA's conclusion that employer payment for PPE would result in
benefits--namely state injury data in states with employer payment for
PPE requirements. Two commenters raised the concept that, if PPE
payment was effective at reducing workplace injuries and illnesses, an
analysis of individual state occupational injury and illness rates
should indicate a lower rate for those states that require PPE payment.
They argued that the State of Minnesota, which has had a state law
requiring employers to pay for all PPE, has injury and illness rates
that are above those for the United States as a whole, and that if PPE
reduced workplace injuries and illnesses, Minnesota should show a lower
rate (Exs. 12: 173, 189).
OSHA rejects this analysis for three reasons. First, the effect of
PPE payment on the injury and illness rates may not be large enough to
affect the rates, given that they are only reported at a general level.
The Bureau of Labor Statistics (BLS) reported over 4,200,000 workplace
injuries and illnesses for 2005, with a rate of 4.6 cases per 100 full-
time employees. Using these statistics, it would require a change of
over 91,000 injuries and illnesses to move the U.S. rates by one tenth
of a point, the most detailed estimate published by the BLS. If the
entire estimated benefit of 21,789 averted injuries and illnesses
occurred within one year, it would not be sufficient to change the U.S.
rate by even one tenth of an injury or illness per 100 full-time
employees. Therefore, while the effect of the rule on occupational
safety and health is expected to be substantial, it is unlikely to
dramatically affect the national statistics. The effect on state-
specific statistics is similar, so it is not surprising that a pattern
of lower rates is not readily apparent in the states that require PPE
payment.
Second, the states that require payment typically do so because the
requirement is set forth in their enabling legislation. Because injury
rates are not available for this time period it is not possible to
perform a meaningful before and after analysis to determine observable
effects due to PPE payment. Third, occupational injury and illness
rates are affected by a large number of factors, many of which may not
yet be identified, and there is considerable uncertainty concerning how
they work in combination to affect overall rates. For example, the BLS
rates are affected by the mix of industries within a state, weather
conditions, large scale events (e.g. natural disasters), technology
advances, work-practice customs, workers' compensation insurance
programs, workforce characteristics, and economic factors, such as
changes in employment and productivity. Of course, OSHA recognizes that
its policies also affect those rates, that changes in standards, new
enforcement policies, and publicized OSHA enforcement cases have
influence over workplace safety and health. Given the complex nature of
state-specific injury and illness rates, it is difficult, if not
impossible, to discern the effect of PPE payment policies on state-
specific rates. Therefore, OSHA does not find the state plan argument
to be persuasive. As noted in the benefits section below, the agency
considered a wide range of injury reductions when assessing the effects
of the standard. The Agency is confident, for all the reasons outlined,
that this rulemaking will result in an overall reduction in injury
rates and net benefits to society.
For all of the reasons discussed above, and after careful review of
all comments, the Agency concludes that the final rule will help reduce
the risk
[[Page 64387]]
associated with the underlying PPE standards.
1. Significant Risk
Some commenters argued that OSHA must find a significant risk from
employers not paying for PPE and find that this rule would
substantially reduce that risk (See, e.g., Exs. 12: 173, 188, 189).
AISI challenged OSHA's arguments for requiring payment, asserting that
the Agency had not clearly identified a significant risk of harm, that
the Agency did not establish the ability of the PPE payment standard to
reduce the risk, and did not establish that the requirements are cost
effective (Ex. 12: 188, pp. 7, 8). UPS made the same arguments, adding
that ``OSHA has failed to even identify the existence of a significant
risk of material impairment resulting from an employee paying for his
own PPE'' (Ex. 12: 189, p. 5).\16\ The PMA added that OSHA is required
to make a threshold finding:
---------------------------------------------------------------------------
\16\ UPS also argued that the rule must meet the test for a
safety standard and therefore, that OSHA must demonstrate a cost-
benefit rationale for the rule. UPS misstates the legal test for
safety standards. In UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(Lockout/Tagout II), OSHA declined to adopt a cost-benefit test for
safety standards and the court accepted OSHA's position.
Nevertheless, OSHA has analyzed the costs and benefits of the rule.
This analysis is contained in Section XV, Final Economic Analysis.
[t]hat significant risks are present and can be eliminated or
lessened by a change in practices before it can promulgate a
standard under 29 U.S.C. 651(b). Specifically, OSHA must determine
that significant risks of material impairment are present and can be
eliminated or meaningfully lessened by a change in practices or
equipment. For a health standard, this requires a significant risk
of material impairment of health or functional capacity and a
probability of significant benefit from a rule which would guard
---------------------------------------------------------------------------
against such risk (Ex. 12: 173, pp. 13, 14).
These commenters' misunderstand the legal underpinnings of this
rule. In promulgating the underlying standards that require PPE, the
Agency met its significant risk burden. As explained above, this is an
ancillary provision that will help effectuate the use of PPE. And OSHA
finds that it has clearly met the test that the proposed revisions to
the existing PPE standards are reasonably related to their purpose of
preventing injury by requiring the provision and use of adequate
personal protective equipment.
If employees are exposed to hazards not addressed by engineering,
work practice, or administrative controls, and they are not provided
with appropriate PPE, they may be injured, killed, or overexposed to
dangerous chemicals, noise, or radiation. The risk is caused by failure
of employers to provide their employees with appropriate PPE to guard
against the workplace hazard, and the failure of both employers and
employees to properly and consistently use appropriate PPE. The PPE
payment provisions use payment practices to help reduce that risk.
Employee injuries related to lack of appropriate PPE are common.
OSHA has investigated hundreds, if not thousands, of accidents where
lack of PPE contributed to workplace injury, overexposure to chemicals,
and death. The following summaries from OSHA's publicly available
Integrated Management Information System (IMIS) accident investigations
database provide just a few examples of the type of accidents where
properly worn PPE may have allowed an employee to survive an accident,
avoid injury or chemical exposure, or lessen the extent of injuries
resulting from an accident.
In 2000, an employee dipping metal parts into a molten
salt mixture was splashed with molten salt, resulting in second degree
burns on both his arms and face. The employee was not wearing
appropriate PPE to protect his arms, nor a face shield, even though the
supervisor working next to him was properly equipped with PPE.
In 2000, a construction employee was using a hammer to
break up tile during a dismantling operation. A piece of the tile flew
back and struck his left eye, resulting in permanent blindness.
In 1999, an employee was working in the pouring area of a
foundry without PPE, skimming hot molten metal into a sand mold. The
mold broke and splashed molten metal onto the floor, where it ran into
his boot. He received third degree burns to half of his foot and was
hospitalized.
In 1999, a warehouse employee was struck on the head by a
supporting bar that fell from above, receiving a head laceration that
required hospitalization. The employee was not wearing any form of head
protection.
In 1999, an employee building a cinder block wall was
making a masonry line with a thread when the thread broke and struck
him in the face, resulting in hospitalization to treat the complete
loss of one eye and multiple fractures to his nose and face. The
employee was not wearing any eye or face protection.
In 1998, an employee trimming trees was removing tree
limbs from the ground, when a limb fell 30 feet and struck him in the
head, resulting in his death. The employee was not wearing a hard hat.
In 1997, an employee was installing television cable from
an aerial lift, wearing a baseball cap but not an insulating hard hat.
The employee contacted an overhead power line with his head and was
electrocuted.
In 1996, an employee's foot was run over by a cart,
resulting in a compound fracture of the foot. He was wearing tennis
shoes instead of safety toe shoes.
In 1996, an employee was transferring a corrosive
substance between storage tanks without eye protection. A small splash
of the liquid struck him in the face and eyes, resulting in
hospitalization.
In 1995, an employee working for a building maintenance
service was cleaning a glass window without fall protection when he
fell 70 feet and died.
In 1995, an employee was using a gas cutting torch to cut
the metal shell of a rail tank car without welding PPE. The heat and
flame of the torch set his work uniform on fire, resulting in burn
injures that required six days of hospital treatment.
In 1995, a shipyard employee was attaching a 300 pound
steel plate to a flange while not wearing protective footwear. The
plate fell and struck his feet, resulting in partial amputation of his
toes.
Further, OSHA commonly finds PPE problems during its inspections.
In 2006 the Agency issued over 13,000 PPE violations, nearly 8,000 of
them serious in nature.
Finally, even if OSHA needed to find in this rule that employee
payment for PPE is a significant risk and requiring employers to pay
for PPE would substantially reduce that risk--which OSHA does not need
to demonstrate--OSHA's estimate of injuries avoided meets that test. As
set forth in detail in the benefits analysis, a conservative estimate
of the beneficial impacts of the rule show that once promulgated, it
will prevent approximately 2,700 injuries per year. This is a
significant reduction in injuries by any measure and is based on the
most conservative assumption with respect to the benefits of the final
rule. (The highest estimate of the benefits of the final rule is that
it will prevent 21,798 injuries per year.)
One commenter disagreed with OSHA's position taken in the
proposal--and in the final rule--that the Agency need not make a
significant risk finding for each provision in a standard. The AISI
stated that OSHA's position is ``[i]nconsistent with the Constitutional
principles under which Congress delegated rule making authority to the
agency, and contrary to the requirements of Sections 6(b) and 3(8) of
the OSH Act as defined by the United
[[Page 64388]]
States Supreme Court in the Benzene and Cotton Dust decisions'' (Ex.
12: 188, p. 10).
AISI's interpretation of the OSH Act's requirements for
promulgating standards is incorrect. As the Supreme Court has stated
and as discussed above, before promulgating a standard, OSHA must
demonstrate that significant risk exists and that the standard will
substantially reduce that risk. This requirement applies to the
standard as a whole. OSHA is not required to make a provision-by-
provision significant risk finding, which would be an impossible burden
to meet. There are sometimes over a hundred different provisions in
OSHA standards that operate together to reduce the significant risk
faced by employees at the worksite. These provisions include exposure
monitoring, medical surveillance, respiratory protection, protective
clothing, training, hazard communication, information sharing, and so
on. OSHA has never in the past, nor is it required to, make a
significant risk finding for each of these provisions. In fact, this
issue was squarely addressed in the review of OSHA's hearing
conservation standard, where the Fourth Circuit stated that the
appropriate test was whether the individual requirements of the
standard were reasonably related to the purposes of the enabling
legislation (Noise, 773 F.2d at 1447).
2. Cost Effectiveness
OSHA concludes that the final standard is also cost effective. A
standard is cost effective if the protective measures it requires are
the least costly of the available alternatives that achieve the same
level of protection (Cotton Dust, 452 U.S. at 514 n.32). Cost
effectiveness is one of the criteria that all OSHA standards must meet.
The OSH Act does not support a requirement that imposes greater costs
than available alternatives without any safety benefit. For employer
payment to be more cost-effective, it must provide the same or better
level of safety at a lower cost than permitting employers and employees
to determine who pays for PPE. After carefully reviewing the rulemaking
record, OSHA has concluded that this final rule is the most cost-
effective of the available alternatives.
OSHA considered the effect on safety of permitting employees to pay
for PPE in comparison to imposing an employer payment requirement, with
limited exceptions. (OSHA considered four specific alternatives to the
final rule, which are discussed in more detail in the Alternatives
Section above.) While there are many reasons why employer payment for
PPE will increase safety and OSHA finds these reasons compelling, some
commenters suggested reasons why employee payment may have some safety
advantages in certain circumstances.
A few commenters argued that safety would be enhanced when
employees pay for PPE because they would be able to select PPE that is
comfortable for them and they would take better care of its condition
(see, e.g., Exs. 12: 31, 48, 68, 140, 165, 203; 45: 5, 6; 46: 4, 17,
32, 42). For example, a representative of HBC Barge stated in a written
comment that: ``By having the employee pay for PPE that is classified
as `tools of the trade' the effect on workplace safety and health can
only be positive. Ownership of equipment on the average will bring a
pride in maintaining their equipment in proper working order'' (Ex. 46:
4). A representative of the National Rural Electric Cooperative
Association commented that:
If employees pay for their own tools-of-the-trade PPE there is a
greater likelihood of accurate fitting to the individual and a
greater likelihood that individual preferences will be met. As a
result, employees are more likely to wear PPE that they provide
themselves. The more that workers wear appropriate PPE, the safer is
the workplace (Ex. 46: 42).
The National Electrical Contractors Association (NECA) stated that
employees who work on construction sites were in the best position to
provide certain personal protective equipment and tools, and suggested
that safety could be compromised in some situations where employers
provide the equipment to be shared by employees:
Certain Lineman's tools have long been considered `tools of the
trade.' Lineman's belts must be measured and sized to fit the
individual employee. Exchanging such belts with other employees
would cause belts to have wider or smaller loops, which could lead
to dropped tools. For fall protection, Lineman's hook gaffs are
sharpened to the `taste' of the lineman, hooks are individually
adjusted to the lineman's calf length and preference, and hook pads
are broken in to fit the individual for fatigue and stress
reduction. Constantly transferring hooks, belts, and safeties would
cause a disconcerting concern for linemen (Ex. 12: 16).
NECA also commented that flame-resistant clothing is best purchased
by the employee, in part because the employee can better ensure daily
care, proper fit, and adequate laundering of the clothing, which ``[i]s
vital to the longevity of the clothing and health of employees * * * ''
(Ex. 12: 16).
These and other commenters stated that employees who regularly
carry the same PPE from job to job may have greater familiarity with
their PPE than employees who are provided new PPE each time they work
for a new employer. This consistency may also assure employees that the
PPE they will be using is best fitted and suited to their own needs.
Given this, these commenters suggest that it may be more cost-effective
for employees in some industries with high turnover rates to supply
basic PPE such as hardhats, safety glasses, and gloves that can be
carried easily from establishment to establishment.
OSHA does not agree with commenters that employee payment will
result in greater safety benefits than the final rule. As discussed in
detail above, OSHA finds that the final rule will result in significant
benefits for employees and will reduce the risk underlying the existing
PPE standards. Employers are in the best position to know and address
the hazards in their workplaces, and payment for PPE will provide an
incentive to better understand those hazards and take appropriate
measures to ensure PPE is used by their employees. The rulemaking
record strongly supports OSHA's finding of safety benefits from the
final rule.
The commenters who suggested greater safety benefits under an
employee payment scenario seem to base their suggestion on the fact
that since PPE is ``personal,'' if employees select and purchase it, it
will be more suited to their tastes and they will wear it more often.
While it is true that PPE is more effective when it is suited to the
size and fit of the employee, OSHA does not believe that this is
relevant to the question of whether employers or employees should pay
for the PPE. The employer is responsible under existing OSHA standards
to ensure that the right PPE is used in the workplace and that it fits
the employee; OSHA has found, on the basis of this rulemaking record,
that an employer payment requirement will help ensure that employers
carry out this responsibility. OSHA does not believe that having
employees pay for the PPE will result in improved employee use of the
equipment.
In addition, OSHA has crafted the final rule in a cost effective
manner. It recognizes the safety benefits of employer payment for most
types of PPE, but exempts certain PPE from the general payment
requirement. Much of the exempted PPE can be used off of the job and is
the kind of PPE that employees may take with them from job to job or
employer to employer. The final rule also specifically recognizes that
OSHA standards allow for
[[Page 64389]]
employees to bring on the worksite and use PPE that they already own.
Thus, the final rule addresses much of the cost-effectiveness concerns
raised by commenters for certain PPE in high-turnover industries.
OSHA also believes that employer payment for PPE will result in PPE
purchases that are on the whole less costly than if employees paid for
the PPE. Employers can frequently utilize bulk purchase discounts,
which means that the same amount of PPE will be provided at a lower
cost, or more PPE will be provided for the same cost. Requiring
individual employees to purchase individual pieces of equipment is not
an efficient way to provide this critical protection.
Finally, according to OSHA's survey data, the vast majority of
employers, found in all industries, are already paying for all of their
employees' PPE. OSHA does not believe this would be the case if
employer payment was not cost effective. This demonstrates that most
employers have made a business decision that paying for PPE is a cost
effective method of providing protection for their employees.
XV. Final Economic and Regulatory Flexibility Analysis
A. Introduction
OSHA has prepared this Final Economic Analysis to examine the
feasibility of the rule on Employer Payment for Personal Protective
Equipment and to meet the requirements of Executive Order 12866 and the
Regulatory Flexibility Act (as amended). The rule will clarify that,
with certain exceptions, employers are required to pay for protective
equipment, including personal protective equipment (PPE), whenever OSHA
standards mandate that employers provide such equipment to their
employees. The employer is not required to pay for non-specialty
safety-toe protective footwear (including steel-toe shoes or steel-toe
boots) and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site. The employer
is also not required to pay for the logging boots required by 29 CFR
1910.266(d)(1)(v); everyday clothing, such as long-sleeve shirts, long
pants, street shoes, and normal work boots; or ordinary clothing, skin
creams, or other items, used solely for protection from weather, such
as winter coats, jackets, gloves, parkas, rubber boots, hats,
raincoats, ordinary sunglasses, and sunscreen.
OSHA's requirements for PPE appear in many health, safety, shipyard
employment, marine terminal, longshoring (referred to as maritime
standards), and construction standards. In some cases, the standard is
explicit in stating that employers are to provide the PPE at no cost to
the employee (see, for example, OSHA's substance-specific health
standards, which are codified in Subpart Z of 29 CFR 1910.1000). In
other cases, however, such as in paragraph (a) of 29 CFR 1910.132 and
paragraph (a) of 29 CFR 1926.28, who is required to pay for the PPE is
not expressly specified. (For a complete list of OSHA's PPE
requirements, see the Summary and Explanation section, above.)
This rule will apply to general industry, construction, and
maritime workplaces covered by the PPE provisions in existing OSHA
standards. The rule will clarify OSHA's position that, with the
exceptions noted, employers must provide required PPE to their
employees at no cost to those employees. The kinds of PPE addressed by
this rule include nonprescription eye and face protection; hard hats;
metatarsal protection; gloves and protective clothing; fall protection
and welding equipment; and hearing protection. (A more detailed list of
the kinds of PPE covered appears in the Summary and Explanation
section, above.)
B. Need for the Rule and Market Failure
The justification for imposing appropriate occupational safety and
health standards generally, and for adopting this change to the PPE
standards in particular, is that without these requirements, fatality
and injury risks to employees would remain unacceptably high. OSHA has
determined that this rule meets the standards for regulation
established by Congress through the passage of the Occupational Safety
and Health Act. In addition, risks would be too high in terms of
imposing large net costs (both pecuniary and non-pecuniary) on society,
producing an inefficient allocation of resources, and reducing overall
social welfare.
OSHA has found that in this case, market incentives alone are
unable to allocate sufficient resources to provide for social welfare
enhancing improvements in safety and health. By itself, however, the
existence of constraints which prevent optimal efficiency would not
necessarily justify regulatory intervention because regulations
themselves may introduce costs, rigidities, and distortions. However,
in this case the negative consequences of not regulating are outweighed
by the net benefits of regulation. The sources of market failure could
include the existence of externalities, the high cost of or lack of
necessary information, including large uncertainties that are costly to
remedy.
Measures for improving occupational safety and health involve
significant externalities. The consequences of an injury or fatality
usually extend beyond the affected employee and employer. A substantial
part of the emotional and financial costs associated with an injury or
fatality is often borne by third parties that are not compensated for
their costs, including other workers, families and friends. Thus, a
substantial part of the benefits associated with improvements in safety
and health is externalized. As a result, even a mutually agreeable
arrangement between employers and employees could represent a socially
undesirable outcome.
A second market failure concerns the cost of and lack of necessary
and sufficient information. The risks of injuries or fatalities
specific to a particular job at a particular firm for a future time
period are difficult to know or predict. The compilation of more
detailed and current information on employer- and job-specific risks
could provide improvement, but at immense cost, difficulty, and
controversy. For example, such risk estimates would have to take into
account the presence or absence of any number of combinations of
controls or procedures in the context of innumerable different
circumstances. Without adequate information regarding occupational
risks and how they may be affected by innumerable diverse factors,
employer and employee negotiations regarding pay and working conditions
may not adequately reflect the nature of such risks. Typically, the
employee will be at a disadvantage in assessing and controlling these
risks, especially with regard to employer- and worksite-specific
considerations; in addition, employers are not always fully aware of
the nature of risks, the full costs associated with an injury incident,
the extent to which they can be reduced, and the methods and resources
that can achieve reductions in risk.
A third source of market failure involves the high costs and
uncertainties associated with attempts at restitution. The costly
nature of the legal system, together with the uncertainties associated
with the outcome of cases, limits the prospect for tort liability to
create the proper incentives. Problems with tort liability laws have
been recognized for decades and were partially addressed through the
establishment of no-fault workers' compensation programs in every
state.
[[Page 64390]]
However, even the workers' compensation systems do not adequately
correct the market failures because insurance rates are frequently not
employer-specific, coverage and compensation are only partial, and the
outcome still leaves injury and fatality rates above levels achievable
through cost-effective regulatory requirements.
This rule is a response to these market failures. When it
promulgated the OSH Act, Congress noted the failure of the market to
prevent a significant number of occupational injuries and fatalities.
Congress concluded that promulgation of the OSH Act was necessary to
create a safe and healthful working environment. As stated by Senator
Cranston:
[T]he vitality of the Nation's economy will be enhanced by the
greater productivity realized through saved lives and useful years
of labor. When one man is injured or disabled by an industrial
accident or disease, it is he and his family who suffer the most
immediate and personal loss. However, that tragic loss also affects
each of us. As a result of occupational accidents and disease, over
$1.5 billion in wages is lost each year (1970 dollars), and the
annual loss to the gross national product is estimated to be over $8
billion. Vast resources that could be available for productive use
are siphoned off to pay workmen's compensation and medical expenses
* * *. Only through a comprehensive approach can we hope to effect a
significant reduction in these job death and casualty figures (Id.
at 518-19).
As explained in detail above, Congress established that employers
should bear the cost of creating a safe and healthful workplace, and
thus directed them to comply with health and safety standards
promulgated by OSHA. This rule is consistent with the OSH Act to the
extent this rule simply clarifies Congress's determinations that
employers must bear the cost of compliance with OSHA standards.
OSHA has also determined that the rule is necessary to further
reduce the significant risk associated with OSHA's standards requiring
the use of PPE. It has become clear that employees frequently fail to
perceive the risk of having worn out PPE. Furthermore, the workers'
compensation system, aside from raising the cost of restitution, has
introduced distortions into the market. Workers' compensation premiums
are frequently not experience-rated; many employers are thus given
limited incentive to reduce injuries--they end up paying the same
amount into the system regardless of the level of safety at the
workplace.
In most OSHA rulemakings, the cost of providing safety falls
squarely on the shoulders of the employer, although in efficient
markets, the cost of rulemaking may be passed on, to an extent, to
other market participants such as employees and consumers. Regardless,
our research has shown that often employers pay for PPE. However, OSHA
has also found in this analysis that requiring all employers to pay for
all PPE, with few exceptions, leads to a better regulatory outcome. For
example, with workers' compensation benefits paid to the employee
remaining fixed under state law, the employee's incentive to acquire
proper PPE or replace it in a timely manner may be less than the total
costs associated with a possible accident as a result of the assurances
provided by the workers' compensation system. The risky and tragic
results of this market distortion are written about extensively in the
Legal Authority section of the preamble. One way to correct this is to
require that employers pay for PPE.
The PPE payment rule will improve efficiency and social welfare by
producing net benefits in conjunction with correcting the deleterious
outcomes resulting from the market failures associated with the
protection of occupational safety and health.
C. Nonregulatory Alternatives
Market failures in general can often be addressed through
approaches other than regulation, and OSHA considered the potential for
such approaches for the market failures in the market for occupational
safety and health. For example, additional and more readily available
information regarding occupational risks and practical solutions
relevant for particular workplaces could help raise awareness. Efforts
to provide direct assistance for reducing risks could be expanded.
As a practical matter, however, frequently regulation is required
to facilitate the transmission of information. As outlined in the Legal
Authority section, one goal of the rule is to clarify the
responsibility for providing PPE. In the absence of clear lines of
responsibility stretching back to the employer, there is often a
failure to provide the information. On another level, the failure of
the employer to pay for the PPE is interpreted by the employee as a
sign the employer is not serious about the importance of safety and
health.
OSHA intends to continue to strive to address occupational hazards
through these alternatives to regulation where appropriate. However,
due to the nature of the market failures as described above, these
measures by themselves would not sufficiently reduce risks. As outlined
in the Legal Authority section, not only is there a significant risk
existing to employees from the lack of adequate PPE, but the OSH Act
implicitly requires employers to pay for it. OSHA concludes that for
the hazards requiring PPE, a mandatory standard clearly setting forth
an employer's obligation to pay for PPE is necessary, just as it is for
engineering and work practice controls.
D. Industry Profile
The rule is concerned only with who pays for OSHA-required PPE;
that is, it will not require employers to provide PPE where none has
been required before. Instead, the rule merely stipulates that required
PPE be paid for by the employer. If all employers are in full
compliance with requirements that PPE be provided, then PPE is already
being paid for by either the employer or the employee, and the rule
will shift the cost of that portion of the PPE currently being paid for
by the employee to the employer. (See the Legal Authority section of
the preamble, above, for details of OSHA's interpretation of this
issue.) Such a shift in who pays the costs will represent a transfer
within the economy and not a net cost to the economy. However, to the
extent that a change in payment results in more or better PPE being
used, then this rule will lead to costs and benefits to the economy.
OSHA believes that this rule will result in improved PPE use and, thus,
will lead to both social costs and benefits. This issue is discussed in
more detail below.
To determine the extent of current PPE usage, the potential
magnitude of any shift in costs, and possible social costs, OSHA has
developed a profile of industry PPE use and payment patterns.\17\ Most
employers are already paying for the PPE they provide to their
employees to comply with OSHA standards. The most recent study of
collective bargaining agreements showed that 55 percent of contracts
mentioning safety equipment stipulate that employers are to pay for
PPE, while only 11 percent of such agreements require the employee to
pay for any PPE \18\ (BNA, 1995). Employers currently pay for PPE for a
variety of reasons: Because of labor-management agreements; for
workers' compensation purposes; because if employers pay for the PPE,
they know what kinds of PPE their employees are using and they can
[[Page 64391]]
ensure that it is replaced when needed; and because they can require
standardized procedures for cleaning, storing, and maintaining it.
Employers can control what PPE is used and how it is used, and thus can
have greater assurance that they are in fact in compliance with OSHA's
standards, and can ensure they will minimize any liabilities associated
with accidents preventable by proper PPE use. Other reasons why
employers prefer to pay for PPE, according to the expert panel convened
by OSHA to obtain information on PPE patterns of use and payment for
the proposed rule, are:
---------------------------------------------------------------------------
\17\ This rulemaking primarily affects non-State Plan States, as
the majority of employees in State Plan States are already covered
by requirements equal to or greater than this final rule.
Approximately 59 percent of U.S. private sector workers work in
states not covered by OSHA State Plans for the private sector [BLS,
2004], and are thus affected by this rule.
\18\ This figure includes payment for all types of safety shoes.
---------------------------------------------------------------------------
The employer has experience with injuries that could have
been prevented by PPE use;
The employer has received input from his/her insurance
carrier;
The employer is concerned about the likelihood of an OSHA
inspection (Ex. 1).
E. Data on PPE Usage Patterns
The data relied on to develop this industry profile come from a
large-scale nationwide telephone survey of 3,722 employers conducted
for OSHA by Eastern Research Group (ERG) in 1999 (Ex. 14). The survey
collected information on the extent to which employers currently pay
for their employees' PPE in the general industry, construction, and
maritime sectors. Three basic types of information were collected about
eight categories of PPE: (1) Is the PPE used at the respondent's
establishment?; (2) How many employees use the PPE?; and (3) Who pays
for the PPE? The survey report describes the sample design,
disposition, and weighting of the responses. This survey constitutes
the best available evidence regarding PPE usage patterns.
OSHA did not rely on this survey in formulating its industry
profile for the proposed rule because the survey was completed after
the proposed rule was published. However, OSHA made the survey
available in its public docket when it was completed in June 1999, and
provided the public an opportunity to comment on its design and
methodology (64 FR 33810). Some stakeholders commented on the survey
and OSHA has carefully considered those comments. OSHA also thoroughly
reviewed the results and the methodology of the survey in preparing
this final rule and made some adjustments to it.
In particular, OSHA made two adjustments to the results of the
survey to better reflect PPE usage patterns. First, the Agency realized
that retaining the weights for numbers of employees assigned from the
original Dun's database identifiers was resulting in misleading
information in some cases. OSHA has therefore reweighted the survey
responses for numbers of employees based on actual information from the
survey (ERG, 2007). Second, in order to benchmark the data to recent
Census figures, ERG converted the original Standard Industrial
Classification (SIC)-based results to a North American Industrial
Classification System (NAICS)-based industry profile. In most
industries, the two-digit SICs mapped directly into their three-digit
NAICS counterpart. Some industries (e.g., maritime) mapped directly at
a greater level of detail. In other industries, it was necessary to
consolidate a few two-digit SICs into a single three-digit NAICS
code.\19\
---------------------------------------------------------------------------
\19\ For example, SICs 75 (Auto Repair) and 76 (Miscellaneous
Repair Services) were consolidated into NAICS 811, Repair and
Maintenance.
---------------------------------------------------------------------------
Table XV-1 shows OSHA's estimate, based on the survey, of the
extent of PPE use in the non-State Plan State workplaces covered by the
rule. A total of 24.9 million employees are estimated to wear one or
more kinds of PPE in workplaces within OSHA non-State Plan States. Non-
prescription safety glasses are worn by approximately 11.3 million
employees, while 9.2 million employees wear gloves for abrasion
protection, 6.5 million wear safety goggles, 5.8 million wear gloves
for chemical protection, and 5.7 million wear hardhats. Industries with
the largest number of PPE-wearing employees include administrative and
support services (NAICS 561), with 1.9 million such employees;
specialty trade contractors (NAICS 238), with 1.8 million such
employees; and professional, scientific and technical services (NAICS
541), with 1.7 million employees. There are also four other industries
with more than one million PPE-wearing employees each: wholesale
merchants--durable goods (NAICS 423), ambulatory health care services
(NAICS 621), hospitals (NAICS 622), and food services and drinking
places (NAICS 722). In many cases, much of the PPE needed is
concentrated in particular items, such as gloves.
BILLING CODE 4510-26-P
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[[Page 64393]]
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[[Page 64395]]
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BILLING CODE 4510-26-C
[[Page 64396]]
Table XV-2 lists the rate of employer payment for various PPE item
categories, as indicated in OSHA's 1999 survey. For nearly all
industries, payment rates are very high--in excess of 90 percent. The
largest exception to this pattern is marine cargo handling (NAICS
48832), averaging 78 percent for all items covered by this rulemaking.
For most PPE items, rates of employer payment are very high--ranging
between 96 percent for welding protective gear to almost 99 percent for
eye and face protection. The primary exception to this pattern is foot
protection (including metatarsal protection and chemical protective
footwear, but not safety-toe shoes), for which the employer payment
rate (including some sharing) is between 50 percent and 55 percent
.\20\ For all items except footwear, employers pay an average of 96.5
percent of the cost. For the items covered by this final rule,
including metatarsal guards, weighted by the total societal cost (both
the employee and employer share) of the various items, employers are
currently paying approximately 95 percent of the costs of PPE.
---------------------------------------------------------------------------
\20\ Most items are either paid for by the employer or employee.
However, some establishments, particularly for footwear, have
established a variety of shared payment systems. In these systems,
employers typically pay approximately 50 percent of the shared cost.
---------------------------------------------------------------------------
BILLING CODE 4510-26-P
[[Page 64397]]
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[[Page 64398]]
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BILLING CODE 4510-26-C
[[Page 64399]]
A few comments (Ex. 12: 173, 189) suggested that OSHA should
compare survey response rates to make sure there is no bias. It was
suggested that given that employers were aware OSHA was conducting a
survey of employer payment for PPE, they tried to avoid participating
in the survey, despite the assurance of confidentiality. It was further
asserted that ``a substantial percentage of the `not available'
category consists of employers who, if contacted, would have explicitly
refused to participate'' (Ex. 12: 173, 189). Presumably, these
employers would avoid participation or refuse to participate because
they do not currently pay for their employee's PPE. This, in turn,
could have inflated the survey's findings of the percentage of
employers paying for PPE.
OSHA disagrees with these comments and believes that survey bias
did not have a significant impact on the data used. First, most of the
establishments listed as ``non-completes'' were not refusals.\21\ Of
the 53 percent of non-completed phone calls, 37.5 percent were not
available; only 14.9 percent refused to participate. Many simply could
not be reached given the time allotted for the survey. As described by
ERG (Ex. 14, pp. 66-67):
\21\ The ``non-completes'' were divided primarily between
``refusals'' and ``not available''. ``Refusal'' is a term of art
with regard to surveys which denotes respondents who tell the
questioner explicitly that they do not wish to participate in the
survey. ``Not available'' describes the group of those who could not
be reached; most ``non-completes'' were ``not available'', as
opposed to ``refusals''.
---------------------------------------------------------------------------
[a]mong the 2,963 not-available respondents, 1,862 (62.8
percent) were called fewer than six times. This group of potential
respondents was drawn almost entirely as part of the supplemental
sample, and, as noted, interviewers stopped calling them when simple
targets were achieved near the end of the survey. For stratum-one,
not-available respondents, fully 68 percent (1,407 out of 2,065)
were part of this supplemental sample group that was called fewer
than six times. If calling had continued so that each of these
numbers had been called at least six times, the response rate would
have been significantly higher. Doing so, however, would have
resulted in oversampling the stratum one respondents. The response
rate for stratum-one establishments in the primary sample was 52.6
percent; by comparison, the response rate for stratum-one
establishments in the entire sample was 34.7 percent.\22\
---------------------------------------------------------------------------
\22\ As discussed in the ERG report [Ex. 14], the survey
targeted three employment size establishment strata, Stratum 1 (1-19
employees), Stratum 2 (20-499 employees), and Stratum 3 (500 or more
employees), to ensure that each size group was adequately
represented in the sample.
---------------------------------------------------------------------------
Comments speculating that employers were attempting to avoid
mentioning that they do not pay for PPE and thus did not respond (Ex.
12: 173, 189) also suggested that the survey was more likely to be
avoided by large employers:
Knowledgeable employers, especially large employers who employ
the bulk of the workforce, are aware of OSHA's demands that
employers should purchase personal-PE * * *. Accordingly, employers
who do not pay for personal-PE would be less likely to respond to a
survey about payment for personal-PE for fear of adverse action by
OSHA. This fear is the most obvious potential bias to the survey,
yet ERG made no attempt to test it.
In fact, the survey results showed just the opposite pattern.
Larger employers (strata 2 and 3) generally showed higher rates of
response to the survey than smaller employers (stratum 1) (61.7 percent
and 58 percent for strata 2 and 3, as opposed to 34.7 percent complete
responses for stratum 1) (Ex. 14, Table 13). This stands in stark
contrast with the refusal rate for the survey, which was fairly
constant between 14.6 and 15.5 percent across the three strata. The
lower response rate for stratum 1 employers was entirely due to the
``not available'' segment. Smaller employers are less likely to
maintain a daytime office staff, thus making it more difficult to reach
them to conduct a survey. This may be particularly true for the
construction industry, which accounted for nearly half of the total
called sample; fully one-third of the entire called sample were
construction employers with fewer than 20 employees (Ex. 14, p. 66,
Table 12). In short, the pattern of nonreponse is consistent with a
simple inability to reach people on the phone, not a refusal to
participate for fear of an adverse action from OSHA.
Second, the response rate is not unusually low for surveys
conducted in the last decade. It is well documented that the public at
large, and probably employers in particular, are suffering from an
element of ``survey fatigue'', given the large number of survey
requests over the phone and on the Internet--people are simply less
likely to agree to do any particular survey, unless there is direct
payoff. In addition, individuals and employers are more likely to
``hide'' behind voice mail and answering machines than they were a few
decades ago (Curtain, et al, 2005). Thus, it would be improper to
assume that the failure to participate represents a response to this
particular survey.
Third, an analysis of the response rate of small establishments in
the survey suggests that many of the very small establishments OSHA did
not reach simply were not under OSHA jurisdiction by virtue of being
self-employed:
[t]he average size of not-available establishments, as reported
by D&B, was compared to that of establishments that completed the
survey. For stratum-one respondents, the average D&B-reported
employment size of not-available establishments was 3.9, compared to
5.6 for those who completed the survey. The relatively small size of
the not-available establishments, however, is misleading because
respondents for some of these (especially those for whom D&B
reported a single employee) would have indicated, if they had been
reached, that they were self-employed; their establishments,
therefore, would have been judged out-of-scope. Among successfully
contacted respondents with five or fewer employees (as reported by
D&B), 56.3 percent reported they were self-employed. If the not-
available respondents in stratum one were as likely to be self-
employed as those successfully contacted, the average reported
employment, adjusted for the projected number of screen-outs at each
employment level, would be 5.3. This is very close to the average
employment for stratum-one respondents who completed the survey (Ex.
14, pp. 67-69).
A potential source of bias not discussed in comments was the
possibility that the nonresponders skewed the sample in favor of
employers who used PPE (as opposed to those employers who paid for
PPE). It may be that a disproportionate percentage of people who either
declined to be interviewed directly, or simply did not return phone
calls did so because they considered the survey inapplicable to their
workplace because they do not use PPE. In that case, the sample ended
up with a disproportionate number of PPE users.
In any case, the estimated number of PPE-using establishments
approximately doubled between the analysis in the proposed rule and the
analysis here, after incorporating the results of the 1999 survey. In
fact, the estimated costs in this final analysis are higher than they
were for the proposed rule in large part due to significantly greater
reported use of PPE in certain items than indicated in the previous
OSHA telephone survey on PPE in 1989. For example, the proposed rule,
based on the 1989 survey data found 10.6 million employees using
chemical and non-chemically protective gloves (64 FR 15417). The 1999
survey found a combined total approximately 50 percent higher. Much of
this increase may have been related to the effectiveness of the 1994
PPE rulemaking at increasing the use of the PPE. At the same time,
employers may not have bothered to participate in the survey because
they simply did not use PPE, thus skewing upward the numbers of
employers using PPE. OSHA has no specific information that this
occurred;
[[Page 64400]]
if it did, however, then the cost to employers (and society) would be
less than estimated in this analysis. The Agency does not believe the
costs are overestimated in this regard, but acknowledges that there are
several different potential, and at least partially offsetting, sources
of bias in the survey results.
OSHA recognizes that the existence of non-responses is a source of
uncertainty with regard to the costs and benefits of the standard. The
Agency has performed a sensitivity analysis to probe the effects of
underestimating the extent to which employees currently pay for PPE.
Finally, it should be noted that absent vastly greater resources
and a substantially greater level of intrusion on employers, it would
be impossible, even on a subsample of the survey responders, to verify
whether or not the behavior of non-responders is significantly
different than responders. Given that many employers could not be
reached by phone, it ultimately might be necessary to send someone in
person to interview the non-responders. OSHA is limited in its
resources and would be unable to perform this type of analysis. On
balance, OSHA is confident that the results of this survey represent
the best available evidence on the profile of payment patterns for PPE
in industry.
F. Technological Feasibility
This rule does not change any PPE requirements, but affects only
the issue of who pays for PPE required by OSHA standards. These PPE
requirements have already been found to be technologically feasible in
other rulemakings. Personal protective equipment is widely
manufactured, distributed, and used in workplaces in all of the
industries covered by OSHA standards. The rule thus raises no issues of
technological feasibility.
G. Benefits of the Final Rule
OSHA concludes in this final rule that when employers do not
provide and pay for PPE, it is often not worn, is worn improperly, or
is not cared for and replaced appropriately. (See the Legal Authority
section for OSHA's analysis of this issue.) When employees are required
to pay for their own PPE, they are likely to minimize PPE costs and
thus fail to purchase proper personal protective equipment. Further
down the wage scale, these problems can be expected to worsen, and
employees will be less likely to purchase adequate PPE and replace it
when necessary, and are more likely to make cosmetic repairs, hide
defects, or purchase used PPE aged beyond its service life.
Thus, at least two problems can occur when employers fail to pay
for PPE: Either the PPE is not worn in cases where it is needed to
protect against injury or illness, or the PPE that is worn is
inadequate. The consequences of these failures are the same: Employees
are exposed to chemical, physical, or safety hazards in the workplace,
which, in turn, result in injuries, illnesses, and death.
In the proposed rule, OSHA estimated the quantitative differences
in the misuse or nonuse of PPE when employers pay for PPE versus when
employees pay for PPE. OSHA preliminarily determined that the rate of
nonuse or misuse of PPE would be approximately 40 percent for employee
purchased PPE verses 15 to 20 percent for employer purchased PPE. This
quantitative estimate was provided by one member of OSHA's expert
panel, but was consistent with the statements of other panelists, as
well as with OSHA's enforcement and regulatory experience. Most panel
members indicated that if the employer did not pay for PPE, the PPE was
typically not fully provided, in some cases falling short by a wide
margin. While commenters disagreed on whether the underlying premise
behind employer payment for PPE was correct, there were no alternative
point estimates provided (other than stating there was no difference
between the two) to the aforementioned estimates. Thus, in this final
rule, OSHA is continuing to use the point estimates given in the
proposal as a basis for the benefits in the final rule. (However, as
explained below, OSHA has also conducted a sensitivity analysis to
evaluate concerns by commenters that OSHA's benefits estimate in the
proposal was too high.)
1. Benefits From Injuries Prevented
To estimate the benefits of the final rule OSHA calculated the
total number of injuries prevented annually by requiring employers to
pay for PPE by body part. OSHA used the point estimates above and the
steps which are illustrated in Table XV-3.
OSHA determined the number of injuries judged to be preventable by
multiplying the total number of injuries \23\ by body part (derived
from 2005 lost work day data and shown in column A) \24\ by the
preventability factors OSHA developed in 1994 for the types of PPE
examined (column B) (59 FR 16352).\25\ In the 1994 analysis, most
injuries were not considered preventable by PPE. For example, sprains
and strains (nature) and injuries caused by overexertion
(circumstance), were not considered to be preventable by PPE. On the
whole, approximately one-third of injuries in general industry were
considered preventable with PPE. However, within this group, it was
apparent that PPE could be particularly effective in protecting certain
body parts (e.g., eye injuries were estimated to be 95 percent PPE-
preventable; foot and toe, 75 percent; face and ear, 68 percent; and
hand and finger, 63 percent). These estimates were based on a careful
review of the descriptions of the accidents. Over 90 percent of these
injuries were incurred by production employees in the subset of high-
hazard industries selected for study in the PPE survey. This analysis
did not cover the construction sector. OSHA assumes that the same
preventability factors by body part would apply in construction as in
the general industry and maritime sectors (see column B). The full
analysis of the injuries judged to be preventable through the proper
use of PPE is presented in detail in the Regulatory Impact Assessment
of the 1994 rulemaking (Docket S060, Ex. 56).
---------------------------------------------------------------------------
\23\ This analysis does not examine the impact of the rule on
occupational illnesses, such as contact dermatitis prevented by
chemically protective PPE, but OSHA is confident the rule will
produce additional benefits not accounted for here.
\24\ OSHA extrapolated total injuries by body part from the
number of detailed lost workday cases with days away work [BLS,
2006b] by multiplying by the overall ratio of total recordable cases
[BLS, 2006a] to cases with days away from work. Body parts not
included in this analysis: Trunk (e.g., back & shoulder); wrist and
other upper extremities except hand and finger; knee and other lower
extremities except foot and toe; body systems, multiple body parts;
and ``other body parts''. Together these excluded cases account for
about 75% of LWD injuries.
\25\ To calculate the preventability factors, OSHA reviewed
1,170 OSHA Form 200s describing almost 64,000 injuries. The profile
of injuries, as defined by body part, very closely tracked those in
BLS's injury data base [OSHA 1994, pp. V-11-13]. Information on the
nature of the injury and the circumstances surrounding the accident
was used to determine the extent to which PPE would have prevented
the injury.
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BILLING CODE 4510-26-P
[[Page 64401]]
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BILLING CODE 4510-26-C
Column C shows the number of preventable injuries based on the 1994
preventability factors and the 2005 data on total injuries. OSHA then
reduced the numbers shown in column C by the percentage of employees in
State Plan States where employer-payment requirements are already in
place. (These reduction factors are shown in column D.) The resulting
totals of preventable injuries, which includes both employee or
employer paid PPE, are shown in Column E.
Next OSHA estimated the percentage of PPE-related injuries where
employees paid for their own PPE. OSHA estimates that if employees are
required to pay for their own PPE, this equipment will be lacking or
inadequate 40 percent of the time, while if employers pay for PPE,
[[Page 64402]]
the equipment will be lacking or inadequate 17.5 percent of the time.
Using these parameters, OSHA estimates that employees who pay for their
own PPE are 2.3 times (0.4 divided by 0.175) as likely as employees
whose PPE is paid for by their employers to suffer an injury that would
otherwise be preventable by PPE use.
The number of such preventable injuries, however, depends on the
percentage of employees that currently pay for their own PPE. The
larger this percentage is, the greater of number of injuries are
potentially preventable. Percentages of preventable injuries among
employees paying for their own PPE were estimated by multiplying the
number of employees paying for their own PPE by 0.4 and dividing this
amount by the sum of the product of the number of employees paying for
their own PPE and 0.4 and the product of the number of employees with
employer-paid PPE and 0.175. The numerator of this ratio is the number
of employees required to pay for their own PPE whose equipment will be
lacking or inadequate, while the denominator is the total number of
employees (both employee- and employer-paid PPE users) whose equipment
will be lacking or inadequate. These percentages are shown in column F.
Assuming injuries occur in proportion among employers, applying the
resulting percentages to column E yields the total number of PPE
related injuries where the employee is paying for PPE (shown in column
G).
Once the number of preventable injuries among the employee-paying
group is derived, it has to be recognized that not all of these will be
preventable by switching payment systems. Requiring employer payment
will reduce the injury rate to the level currently suffered by
employees with employer-paid equipment. As outlined above, employees
paying for their own equipment are 2.3 times (0.4/0.175) as likely to
be injured as those with employer-paid equipment. The total number of
injuries prevented by switching to employer payment equals:
of PPE-related injuries among the employee-paying group multiplied by
[GRAPHIC] [TIFF OMITTED] TR15NO07.015
In terms of the specific numbers, this percentage reduction is
calculated as 1-((0.175/0.4) , or 1-0.4375, or 56.3 percent, as shown
in column H. Reducing the number of injuries in the employee-paying
group (column G) by 56.3 percent results in the total number of
injuries prevented by this rulemaking, as shown in column I.
As indicated in Table XV-3, this analysis indicates that the final
rule would avert approximately 21,798 injuries annually.\26\ OSHA
provides a sensitivity analysis of this below, to reflect uncertainties
in the strength of the employer payment effect.
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\26\ Within the 17,025 injuries estimated to be prevented in
general industry and maritime, the Agency estimates 214 will be in
maritime, the remainder in general industry.
---------------------------------------------------------------------------
While a number of commenters had concerns about the rule, there was
general agreement on the value of PPE in preventing injuries (see,
e.g., Exs. 12: 2, 4, 6, 9, 10, 11, 13, 15, 20, 21, 32, 58, 66, 79, 100,
101, 105, 110, 113, 117, 130, 134, 149, 184, 190, 210, 218, 230, 233,
247, 248). One commenter questioned the underlying basis for OSHA's
estimates in part because their experience has been that relatively few
injuries are actually preventable by PPE.
[w]e have approximately 50 accidents per year. I read every one of
them. I would say in a given year there may be at most one or two
accidents where the personal protective equipment was a factor in
preventing or minimizing the injury. Remember, that is the barrier.
That is the last resort is the personal protective equipment. As we
all know, there should be other steps taken to prevent an injury
before it gets to that point (Tr. 146).
OSHA disagrees with this commenter to the extent the commenter is
suggesting that employer payment for PPE will not help prevent
injuries. First, this represents one company's experience, which is not
generalizable to the economy as a whole. OSHA's analysis of injuries
allows for the fact that many injuries would not be preventable by PPE;
this company may have an unusually large number of such cases. The
commenter suggests, correctly, that engineering controls are the
logical first line of defense against hazards. The company may have an
excellent program in this regard. Second, the comment refers to cases
where PPE is being worn and prevented accidents; it says nothing about
any cases where PPE was not being worn and injuries resulted. A finding
that suggests that PPE prevents only a few injuries is dramatically at
odds with most of the rulemaking record both in this rulemaking and its
predecessor in 1994. In both cases PPE was found to be of considerable
value in reducing injuries.
Finally, it is worth noting the Agency is not claiming a dramatic
percentage reduction in total injuries as a result of the rule, in part
because most equipment is already paid for by most employers. A
reduction of 1 or 2 cases out of 50 represents a relatively small
number within one business unit, but extrapolated across the economy as
a whole represents a large number of injuries prevented, resulting in a
substantial net benefit for the nation as a whole.
2. Benefits From Prevented Fatalities
Although the primary benefits from this rule derive from the non-
fatal injuries and associated costs that will be averted by requiring
employers to assume the full costs of the covered types of PPE, some
benefits are associated with the preventability of fatal injuries.
Although most injuries preventable by appropriate PPE would not
otherwise result in fatalities, certain fatal head injuries,
particularly those classified as ``struck by'' or ``struck against''
injuries, would be prevented by PPE (i.e., hardhats). Recent data on
occupational fatalities collected by the Bureau of Labor Statistics
show that a yearly average of 112 such fatalities occurred in general
industry and maritime, and 43 in construction during the period 2003
through 2005 (BLS, CFOI, 2004).
OSHA estimated the number of fatalities likely to be prevented by
the rule by first considering the percentage of ``struck by'' and
``struck against'' fatalities that would be prevented if proper head
PPE had been used. Many types (or ``events'') of fatal head injuries
that would not be prevented by hardhats, such as those resulting from
falls, some explosions, and most transportation-related accidents, have
not been included in this analysis. In contrast, PPE should be
relatively effective in preventing fatal ``struck by'' and ``struck
against'' head injuries. Additional fatalities that would not be
prevented include crushing accidents (force exceeds the protection of
the head gear) and instances where the hazard could not be anticipated
and the victim
[[Page 64403]]
could not reasonably be judged to be at risk and required to use PPE
(passersby, for example.) For this analysis, OSHA estimates that 75
percent of fatal ``struck by'' and ``struck against'' injuries would
otherwise be prevented by proper use of head protection.
Applying the 75 percent estimate described above to the total
number of annual fatalities from the BLS data (112 in general industry
and maritime, and 43 in construction) results in an estimated 84
fatalities in general industry and maritime and 32 fatalities in
construction that would be preventable by wearing hardhats if all the
fatalities occurred in industries within OSHA jurisdiction. However,
approximately 59.1 percent of these preventable fatalities are
estimated to occur in non State-Plan States.27 28
Accordingly, the actual number of fatalities preventable by this rule
is approximately 50 in general industry and maritime, and 19 in
construction. In addition, only a subset of these preventable
fatalities would be affected by switching payment systems, i.e. the
subset where employees are currently paying for their own PPE. This is
because the number of preventable fatalities affected by this rule
depends on the percentage of employees that currently pay for their own
PPE. The larger this percentage is, the greater the number of
fatalities that are potentially preventable.
---------------------------------------------------------------------------
\27-28\ As indicated in Table XV-3, Census Bureau [Census,
2005a] data indicate non State-Plan States account for 59.1% of
private sector employment.
---------------------------------------------------------------------------
Data from OSHA's PPE payment survey suggest that about 1.2 percent
of general industry and maritime employees and 4.1 percent of
construction employees pay for their own head PPE. Combining these
percentages with the point estimates for PPE nonuse/misuse discussed
above (40 percent nonuse/misuse when employees pay for PPE versus 17.5
percent nonuse/misuse when employers pay for PPE), OSHA calculated the
ratio of employee paid-PPE-related fatalities to all PPE related
fatalities (i.e., the sum of the employee- and employer-paid PPE
fatalities).
[GRAPHIC] [TIFF OMITTED] TR15NO07.016
Using the same methodology used for non-fatal injuries, the ratio for
general industry is equal to (0.40*0.012)/(0.40*0.012 + 0.175*0.988) =
2.8 percent. For construction the ratio is equal to (0.40*0.041)/
(0.40*0.041 + 0.175*0.959) = 8.9 percent.
In short, OSHA estimates that employees paying for their own PPE
suffer 2.8 percent (1.4 fatalities annually) of the fatal ``struck by''
and ``stuck against'' head injuries in general industry and 8.9 percent
(1.7 fatalities annually) of the fatal ``struck by'' and ``stuck
against'' head injuries in construction. However, it is not the case
that all of the employee-paying preventable fatalities (1.4 and 1.7 in
general industry and construction respectively) will be prevented by
switching payment systems because there is still a 17.5 percent nonuse/
misuse rate among the employer-paying group. OSHA's estimate that
requiring employer payment will reduce the rate of misuse or nonuse of
PPE from 40 to 17.5 percent implies a resultant 56.3 percent reduction
((0.4-0.175)/0.40) in fatal head injuries among employees who pay for
their own PPE. Thus OSHA estimates that 0.8 fatal head injuries (0.563
times 1.4) in general industry and 0.9 fatal head injuries (0.563 times
1.7) in construction will be prevented annually by this rule.
The Agency also believes that the final rule will achieve
substantial benefits in the area of fall protection, particularly in
construction. The rule will prevent a number of fatalities and severe
injuries that are now occurring either because employee-provided PPE
offers inadequate protection or because the employee arrives on site
without the necessary PPE. For example, OSHA estimated in the
Regulatory Impact Analysis for 29 CFR Part 1926 Subpart M that fall
protection systems would prevent nearly 80 fatalities and 26,600 lost
workday-injuries annually. To the extent that employers supply more
effective harnesses and lanyards than those currently being provided by
employees, or ensure that this equipment is available for use by the
employee, this rule will prevent deaths and injuries caused by falls.
However, at the current time, the Agency does not have sufficient
detail on these accidents to quantify the benefits of this effect.
3. Uncertainties
As outlined elsewhere in this analysis, benefits associated with
the rule are subject to uncertainty with respect to the number and
types of accidents that will be avoided or mitigated by the use of PPE
and cost and benefits estimates are further subject to uncertainty due
to the survey's non-response levels. Further, this analysis assumes
that the effect of the rule will be limited to situations where
employees are now required to pay for their own PPE. This, however,
while a simplifying assumption, may not be wholly accurate. As
indicated in the Legal Authority section, there is evidence that
employer payment for PPE is important to send a signal to employees on
the importance of wearing PPE. The record is also clear that certain
sectors, such as construction, have relatively high rates of employee
turnover (BLS, 2004), and even where they are not so high, they do not
remain static. If the rule has the effect of engendering a greater
appreciation of the importance of wearing PPE, then this effect would
logically extend into workplaces where employers pay for the equipment
currently, through employee turnover as well as a general shift in
norms of behavior in the industry. The analysis currently assumes that
employees will fail to wear PPE 15-20 percent of the time even when the
employer pays for PPE. Given that employers pay for most PPE items most
of the time currently (typically greater than 95 percent of the time),
if this percentage were to fall even a small amount as a result of this
rulemaking, the benefits would be substantially greater than assumed in
this analysis.
4. Willingness To Pay for Injuries and Fatalities Avoided
OSHA also performed an analysis of the value of injuries and
fatalities avoided based on a willingness to pay approach. This
approach employs the theory of compensating differentials in the labor
market. A number of academic studies have drawn a correlation between
higher risk on the job and higher wages, suggesting that employees
demand monetary compensation in return for a greater risk of injury or
fatality. OSHA has used this approach
[[Page 64404]]
in many recent proposed and final rules (See, e.g., 71 FR 10099, 70 FR
34822).
In performing its willingness to pay analysis, OSHA uses an
estimate of $50,000 per lost workday-injury avoided, based on two
studies: Viscusi, 1993, and Viscusi & Aldy, 2003. In his 1993 paper
(Viscusi, 1993, p. 1935), Viscusi reviewed the available literature and
found the value of lost workday injuries to be: ``[i]n the area of
$50,000, or at the high end of the range of estimates for the implicit
value of injuries overall.'' His 2003 paper with Aldy broadly
reaffirmed this, finding the literature to estimate the value in the
$20,000-$70,000 range. While the literature covered many types of
injuries, they focused primarily, particularly for many of the higher
valuations, on lost workday injuries. The Agency has conservatively
chosen to apply this value to only cases resulting in days away from
work, even though there would be additional value attached to the
larger class of injuries, especially cases resulting in restricted
work. As shown in Table XV-4, the Agency estimates the value of
injuries prevented using this approach to be $337 million per year.
By this methodology, a single fatality avoided is valued at $7
million [Viscusi 2003, p. 63]. As explained above, OSHA estimates that
1.7 fatalities may be prevented each year by this rule. Accordingly,
this brings total the total monetized value of benefits to $349
million.
An alternate approach for valuing injuries is the direct cost
approach, which OSHA used in the analysis for the proposal. A full
discussion of this estimate is provided in an Appendix at the end of
the Final Economic Analysis. Using a direct cost approach to monetize
benefits for injuries avoided, and a willingness to pay approach to
monetize fatalities avoided, OSHA estimates total benefits to be $228.3
million (See Table XV-14).
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H. Costs of Compliance to Employers
OSHA also used the survey results to estimate the costs to
employers of compliance with the final rule. Based on the survey, OSHA
estimated, by PPE type, the percentage of PPE users in non-State Plan
States whose employers bear the full PPE costs and the percentage of
PPE users in non-State Plan States whose employers pay some share of
the PPE costs. The remaining employees are those who now pay for their
own PPE. Under the final rule, employers will have to assume the PPE
costs for these employees and, in addition, make up the share of PPE
costs currently borne by employees who pay some portion of the
equipment expense.
OSHA also determined unit cost estimates for PPE, based in part on
assumptions used in the Preliminary Economic Analysis for the proposed
rule (64 FR 15425), updated according to current price data obtained
from safety equipment vendors. The unit costs represent annualized
equipment costs, based on the prices and the estimated lifetimes of the
PPE items, and are as follows:
Based on prices from a current safety equipment catalog,
hardhats costing $8.20, non-prescription safety glasses costing $6.20,
and face shields costing $14.90 are all assumed to a have a useful life
of one year.
Chemical splash goggles costing $6.20 and safety goggles
costing $4.65 are assumed to be replaced every six months with
annualized costs of $13.05 and $9.79, respectively.
Gloves for abrasion protection costing $8.30 are assumed
to be replaced four times a year resulting in an annualized cost of
$34.64 (Lab Safety, 2007).
Welding helmets were assumed to have a life expectancy of
2 years and to cost $40.00; welding goggles were assumed to have a life
expectancy of 1 year and to cost $13.62 (these assumptions yield a
combined annualized welding unit cost of $36.69). According to OSHA's
expert panel, welders need both helmets and goggles at different times
of the year.
Fall protection (body harness or belt, and lanyard) is
assumed to have a life expectancy of 2 years, and to cost $93.90
(harnesses), $45.70 (belt), and $51.10 (lanyards), respectively,
yielding a combined annualized fall protection unit cost of $80.20.
Reusable chemical protective clothing is assumed to be
replaced every 6 months and to cost $41.30, while chemical protective
gloves costing $3.50 are assumed to be replaced every 10 working days
(20 times a year), based on prices in the safety equipment catalog (Lab
Safety, 2007).
Paragraph (h)(3) of the revised rule requires employers to
pay only for the cost of metatarsal guards, as opposed to the entire
footwear item. The annualized cost of external metatarsal guards,
assuming replacement every 2 years, is $15.49, based on a unit cost of
$28 (Lab Safety Supply, 2007, Omark Safety Online, 2007, Working
Person's Store, 2007, Grainger, 2007, Alpenco, 2007).
To derive the incremental cost to employers of compliance with the
final rule, for each type of PPE, OSHA (a) multiplied the unit PPE cost
by the number of employees in non-State Plan States who now pay for
their equipment and (b) added to this, the unit PPE cost multiplied by
1 minus the percentage share of cost now paid by employers who share
costs, multiplied by the number of employees in non-State Plan States
who now pay some portion of the cost of their PPE.
Costs were adjusted for additional PPE expenditures resulting from
employee turnover, based on turnover estimates prepared by the Bureau
of Labor Statistics from their Job Openings and Labor Turnover Survey
(JOLTS) (BLS, 2004). Two factors determine the impact of turnover on
compliance costs. First, if the protective equipment is transferable to
other employees and can be reused, turnover does not affect compliance
costs. In this case, departing employees' equipment can be passed on to
new employees. Second, for non-transferable PPE, the lifetime of the
equipment determines the number of additional purchases required for
new employees.\29\ For example, turnover has less impact for PPE types
with short lifetimes, because such equipment is regularly replaced even
in the absence of employee turnover. To account for this, OSHA used a
factor that was equal to the PPE lifetime (in fractions of a year) for
PPE types with lifetimes less than one year and equal to 1 for PPE with
lifetimes of one year or greater. For example, suppose that the
turnover rate is 10 percent and the lifetime of the equipment is six
months (0.5 years). If the hiring of new employees is spread out evenly
over the year, half the new employees can be provided with equipment
that would have been replaced even without employee turnover. In this
case, the additional PPE required as a result of turnover would be 5
percent (10 percent times 0.5).
---------------------------------------------------------------------------
\29\ This analysis assumes the following items are transferable:
chemical splash goggles, faceshields, hardhats, metatarsal
protection, splash aprons, chemical protective clothing, body
harnesses, body belts, lanyards, welding helmets, welding goggles
and ear muffs. Non-prescription safety glasses, safety goggles,
chemical protective footwear, gloves for abrasive and chemical
protection, protective welding clothing and ear inserts were assumed
to be non-transferable.
---------------------------------------------------------------------------
Table XV-5 presents compliance costs of the final rule to
employers, by NAICS code. Table XV-6 summarizes the cost estimates by
general category of PPE. Total compliance costs are estimated to be
$85.7 million for all establishments. The cost of gloves for abrasion
protection is estimated to be $27.8 million, or 32.5 percent of total
costs. Chemical protective footwear is estimated to be $17.6 million,
or 20.5 percent of total costs. Metatarsal guards for footwear are
estimated to be $13.3 million, and gloves for chemical protection $10.2
million, at 15.5 percent and 11.8 percent of total costs respectively.
Several commenters stated that the cost analysis was unrealistic in
assessing the costs in their industries. Representatives from the
drilling industry (Ex. 12: 91) stated that the analysis failed to take
into consideration the high rate of cotton glove usage in their
industry, as they reported employees going through approximately one
pair a day. OSHA questions whether the gloves described by the
commenter constitute PPE; it is not clear for what safety or health
purpose the gloves are being worn. If the gloves are being used for the
purposes of abrasion protection, more durable and protective
alternatives are available than cotton gloves. Regulatory analyses
generally assume employers adopt the least-cost option, which may
differ from the pattern of employee purchases; this applies to both the
quantity (e.g., bulk discounts) and quality of PPE purchased. This
analysis assumes employers will use leather or Kevlar gloves for
protection, a costlier (per unit), but more durable form of protection.
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In a separate but related issue, this same commenter indicated
that, from talking with their members, they thought OSHA's survey had
underestimated the share of PPE which employees were paying for. OSHA
recognizes that such results are inevitable in relying upon a sample.
There will be instances where certain costs are underestimated.
Likewise, there will be situations where costs are overestimated. These
will tend to offset each other so that there is no systemic bias. For
example, based heavily on one survey response, the analysis suggests
that employers in wholesale trade are expected to have particularly
heavy costs for certain PPE items, notably fall protection. However, in
OSHA's professional judgment, uses of these PPE items in this sector
are not as high as the survey would suggest. Nonetheless, it would be
inconsistent and potentially in error to project a final estimate of
costs to the economy without taking into account the full pattern of
behavior indicated by the survey.
There may be instances where this analysis either fails to consider
certain specialized PPE or PPE use patterns in particular industries
that are more expensive than calculated. Alternately,
[[Page 64410]]
there will be instances where the analysis has overestimated the cost
of PPE for various industries. However, as indicated later in this
analysis, given the very limited costs of PPE as a percentage of
revenue and profits, its comparatively ``level'' distribution as a per
employee cost (i.e., costs as function of the size of employment), as
well as the established patterns of employee payment currently for most
types of PPE in most industries, cost estimates for particular
industries would generally need to be off by well over an order of
magnitude before these would begin to raise issues of economic
feasibility.
It should also be noted that since this analysis is accepting the
survey results at face value, there has been no attempt to correct for
situations where OSHA already requires payment for PPE, e.g., the
bloodborne pathogens standard and numerous single substance standards.
To the extent that employers are not adhering to existing requirements
in this regard, these costs are overstated in this rulemaking.
Finally, this analysis makes no attempt to estimate to what extent
employees will continue to voluntarily bring their own PPE into the
workplace. Rather, this analysis assumes employers will pay 100 percent
of the cost of the PPE covered by this rulemaking currently paid for by
employees. To the extent employees choose to bring their own PPE into
the workplace after the rule is issued, costs will be overstated.
I. Economic Feasibility and RFA Certification
A standard is economically feasible if it does not threaten massive
dislocation to or imperil the existence of an industry. See United
Steelworkers of America, 647 F.2d at 1265. That a standard is
financially burdensome or threatens the survival of some companies in
an industry is not sufficient to render it infeasible (Id. at 1265).
The cost of compliance with an OSHA standard must be analyzed ``in
relation to the financial health and profitability of the industry and
the likely effect of such costs on unit consumer prices.'' (Id.) [The]
practical question is whether the standard threatens the competitive
stability of an industry, or whether any intra-industry or inter-
industry discrimination in the standard might wreck such stability or
lead to undue concentration (Id.) (citing Industrial Union Dept., AFL-
CIO v. Hodgson, 499 F.2d 467 (DC Cir. 1974)). The courts have further
observed that granting companies reasonable time to comply may enhance
economic feasibility (Id.).
To assess the potential economic impacts of the final rule, OSHA
compared the anticipated costs of achieving compliance against revenues
and profits of PPE-using establishments in non-State Plan states. Per-
establishment average costs were calculated by dividing total
compliance costs for each industry by the number of affected
establishments. OSHA then compared baseline financial data (from the
U.S. Internal Revenue Service, Corporation Source Book, 2004) with
total annualized costs of compliance to compute compliance costs as a
percentage of revenues and profits. This impact assessment is presented
in Table XV-7.
This table is considered a screening analysis because it measures
costs as a percentage of pre-tax profits and sales but does not predict
impacts on pre-tax profits and sales. This screening analysis is used
to determine whether the compliance costs potentially associated with
the standard would lead to significant impacts on establishments in the
affected industries. The actual impact of the standard on the profits
and revenues of establishments in a given industry will depend on the
price elasticity of demand for the services sold by establishments in
that industry.
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[[Page 64413]]
Price elasticity refers to the relationship between the price
charged for a service and the demand for that service; that is, the
more elastic the relationship, the less able an establishment is to
pass the costs of compliance through to its customers in the form of a
price increase and the more it will have to absorb the costs of
compliance from its profits. When demand is inelastic, establishments
can recover all the costs of compliance simply by raising the prices
they charge for that service; under this scenario, profits are
untouched. On the other hand, when demand is elastic, establishments
cannot recover all the costs simply by passing the cost increase
through in the form of a price increase; instead, they must absorb some
of the increase from their profits. In general, ``when an industry is
subject to a higher cost, it does not simply swallow it, it raises its
price and reduces its output, and in this way shifts a part of the cost
to its consumers and a part to its suppliers,'' (ADA v. Secretary of
Labor, 984 F.2d 823, 829 (7th Cir. 1993)).
Specifically, if demand is completely inelastic (i.e., price
elasticity is 0), then the impact of compliance costs that amount to 1
percent of revenues would be a 1 percent increase in the price of the
product or service, with no decline in demand or in profits. Such a
situation would be most likely when there are few, if any, substitutes
for the product or service offered by the affected sector or if the
products or services of the affected sector account only for a small
portion of the income of its consumers. If the demand is perfectly
elastic (i.e., the price elasticity is infinitely large), then no
increase in price is possible, and before-tax profits would be reduced
by an amount equal to the costs of compliance (minus any savings
resulting from improved employee health and reduced insurance costs).
Under this scenario, if the costs of compliance represent a large
percentage of the sector's profits, some establishments might be forced
to close. This scenario is highly unlikely to occur, however, because
it can only arise when there are other goods and services that are, in
the eye of the consumer, perfect substitutes for the goods and services
the affected establishments produce or provide.
A common intermediate case would be a price elasticity of one. In
this situation, if the costs of compliance amount to 1 percent of
revenues, then production would decline by 1 percent and prices would
rise by 1 percent. The sector would remain in business and maintain
approximately the same profit rate as before but would produce 1
percent less of its services. Consumers would effectively absorb the
costs through a combination of increased prices and reduced
consumption; this, as the court described in ADA v. Secretary of Labor,
is the more typical case.
As indicated in Table XV-7, the screening analysis indicates the
highest revenue and profit impacts are for NAICS 48832, Marine Cargo
Handling (0.017 percent of sales and 0.56 percent of profits); NAICS
336611, Ship Building and Repairing (0.013 percent of sales and 0.24
percent of profits); NAICS 238, Specialty Trade Contractors (0.008
percent of sales and .21 percent of profits); and NAICS 485, Transit
and Ground Passenger Transportation (0.006 percent of sales and 0.3
percent of profits). Over the entire set of affected industries, the
average impact on sales is 0.001 percent and the average impact on
profits is 0.03 percent.
Costs of this magnitude do not threaten the financial health of
even the most marginal firm. Since most employers in most industries
already pay for PPE, the major competitive effect of the rule is to
limit any small short-term competitive advantage a few firms gain by
not paying for PPE, i.e., by requiring their employees to pay for PPE
that other employers in their industry pay for. As shown elsewhere,
many firms already pay for PPE because it proves cost-effective. Many
firms will find that, when benefits as well as costs are considered,
the costs of PPE are more than offset by these benefits.
It should be noted that these impacts could be nine times higher
without reaching the level of 5 percent of profits or 1 percent of
revenues in any industry. Thus, in spite of uncertainties about costs,
this rule does not come close to a level threatening the economic
viability of any affected industry. For all the aforementioned reasons,
the Agency concludes the final rule is economically feasible.
OSHA also assessed the economic impact of the rule on small firms
within each affected industry. Impacts on two size categories of small
firms were estimated: Firms with fewer than 500 employees, and firms
with fewer than 20 employees. In using 500 employees and 20 employees
to characterize firms for this screening analysis for impacts, OSHA is
not proposing definitions of small business that are different from
those established by the Small Business Administration (SBA) in its
``Table of Size Standards''. The SBA size definitions are NAICS-code
specific, and are generally expressed either in terms of number of
employees or as annual receipts. Instead, OSHA is using 500 employees
and 20 employees as a simple method of screening for significant
impacts across the large number of industries potentially affected by
the rule. Because the survey used the 500- and 20-employee levels, it
is appropriate to retain these levels in the final rule. This approach
also avoids the interpolation that would be necessary because the
underlying industry profile data do not correspond with the NAICS-
specific size categories established by the SBA. (OSHA notes that, for
almost all of the industries affected by this rulemaking, the SBA size
definitions fall within the 20- to 500-employee range.) OSHA believes
that this screening approach will capture any significant impacts on
small firms in affected industries.
As a conservative approach, in order to analyze the impact on firms
with fewer than 500 employees, OSHA divided the total annual cost in
each NAICS for establishments with fewer than 500 employees by the
total number of firms with fewer than 500 employees in that NAICS. This
approach tends to overstate the impact because some of the costs will
be for establishments with fewer than 500 employees that are part of
firms with more than 500 employees. These calculated costs per firm
with fewer than 500 employees were then compared to average sales per
firm with fewer than 500 employees and average pre-tax profits per firm
with fewer than 500 employees. The same methodology was used to analyze
the impact on firms with fewer than 20 employees.
The results of these analyses are shown in Tables XV-8 and XV-9,
which demonstrate that the annualized costs of compliance do not exceed
0.035 percent of sales or 0.65 percent of profits for small firms in
any industry, whether defined as fewer than 500 employees or as fewer
than 20 employees. It should be noted that these impacts could be 8
times higher without reaching the level of 5 percent of profits or 1
percent of revenues that OSHA uses to determine if a Regulatory
Flexibility Act (5 U.S.C. 605) Analysis (RFA) is necessary. Thus, in
spite of uncertainties about costs, it is very unlikely that this rule
would even rise to the level of needing more detailed analysis beyond
this screening analysis. Based on these analyses, in accordance with
the Regulatory Flexibility Act (5 U.S.C. 605), OSHA certifies that the
rule will not have a significant impact on a substantial number of
small entities.
[[Page 64414]]
Because for most industries statistically meaningful survey data
are available largely only at the three-digit North American Industrial
Classification System level, OSHA has conducted this analysis of
economic impacts primarily at the 3-digit level. OSHA believes that
this level of analysis adequately captures meaningful variations in
economic impacts. Further, the costs are so low that even if a sub-
industry has substantially higher costs as a percentage of sales or
profits, the financial health of that sub-industry would not be in any
danger.
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[[Page 64419]]
J. Social Costs and Social Benefits
For the most part, the rule will simply shift the cost of
purchasing PPE from employees to employers. However, the record
demonstrates that employer payment will also result in more PPE used
and improved PPE use at the workplace. This will lead to social costs
and social benefits. For purposes of estimating the social costs, OSHA
assumed, based largely on expert opinion as discussed above in the
benefits analysis, that employees lack the proper PPE an average of
17.5 percent of the time when employers pay, and 40 percent of the time
when employees pay. The social cost represents the cost of closing the
gap between the two numbers; the remainder of the employers' cost is
merely an economic transfer from the employee to employer. Thus, the
social costs of requiring employer payment would represent the
following portion of the total cost to employers: 1-((1-0.4)/(1-
0.175)), where (1-0.4)/(1-0.175) represents the relative likelihood
that employees are actually wearing the proper PPE. If the relative
likelihood were 1 (the numerator and denominator equal), there would be
no social cost. Calculated out, this becomes 1-(0.6/0.825), 1-0.727, or
27.3 percent. As indicated in Table XV-10 this suggests that about
$23.4 million out of the total $85.7 million estimated costs to
employers are social costs.
In the case of comparing social costs and social benefits, the
magnitude of social costs and benefits are closely linked--the benefits
of reducing the injuries are dependent upon the purchase and use of
PPE. To assess the benefits of the final rule, OSHA estimated that PPE
is misused or not used at all 40 percent of the time when employees pay
and 17.5 percent of the time when employers pay. There is necessarily
uncertainty in these estimates. Accordingly, OSHA has performed an
analysis of the social costs and social benefits of the rule given
different sets of assumptions, commonly referred to as a sensitivity
analysis, in this case with respect to different rates of PPE misuse/
nonuse. The Agency found that if the difference in PPE usage patterns
between the employee- and employer-pay groups is much smaller than
OSHA's assumption, the social benefits are still several times larger
than the social costs.
If one assumed the gap between the two groups were only half of
what was assumed in the benefits estimate based on direct cost (i.e.,
assume employees paying for their own PPE were lacking the proper PPE
28.75 percent of the time, and employees who had the PPE paid for by
their employer were lacking it 17.5 percent of the time, meaning a
difference of 11.25 percent, as opposed to 22.5 percent in main
estimate), OSHA estimates total social costs of $11.7 million and total
social benefits of $125.3 million, for a net benefit of $113.6 million.
If the ``employer payment effect'' were only 10 percent of the main
benefits estimate (i.e., assume employees paying for their own PPE were
lacking the proper PPE 19.75 percent of the time, and employees who had
the PPE paid for by their employer were lacking it 17.5 percent of the
time), the social costs would be only $2.3 million; the remainder of
the cost to employers would simply be a transfer. The estimated
benefits would be $27.6 million, for a net benefit of $25.3
million.\30\
---------------------------------------------------------------------------
\30\ Total social benefits include fatalities prevented, which
are valued at $7 million per fatality avoided, using the willingness
to pay approach [Viscusi, 2003, p. 763].
---------------------------------------------------------------------------
OSHA performed an analysis of these alternate assumptions
incorporating the estimated value of willingness to pay for injuries
avoided, estimated at approximately $50,000 per lost workday injury
(Viscusi 1993, Viscusi & Aldy 2003). As shown in Table XV-11, OSHA
estimates the net social benefits of the rule to be $334 million using
the main benefits estimate, and $185 and $39 million using the
alternate 50 percent and 10 percent assumptions on the ``employer
payment effect''.
The Agency also examined the effect of doubling the estimated share
of PPE employees currently pay for to examine the consequences of the
survey underestimating the employees' share of payment. Both the costs
of the standard to employers and the social costs would double--the
estimated social costs would increase to $47 million. The estimated
annual benefits of the standard would increase to 37,188 injuries and
3.4 fatalities prevented, producing an estimated social value of $609
million, and raising the net social benefit to $562 million. Therefore,
the Agency concludes that if the survey did underestimate the current
employee-paying share, the net benefits of the standard would be larger
than OSHA's primary estimate.
As discussed previously, these sensitivity analyses of the net
social benefits are intended to explore the implications of the
uncertainties outlined previously in this analysis. Nonetheless, under
any scenario, the rule will produce a high ratio of benefits to costs
and positive net benefits; the primary uncertainty is the magnitude of
the social costs and benefits.
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K. Direct Savings Resulting From the Reduction in Injuries Attributable
to the Final Rule
This section evaluates the direct savings associated with the
injuries prevented by the final rule. It should be noted that
occupational injuries impose an enormous burden on society in addition
to the direct outlays of money for medical expenses, lost wages and
production, and other purely economic effects. This section of the
analysis does not attempt to place a monetary value on the pain and
suffering experienced by employees and their families, loss of esteem,
disruption of family life, feelings of anger and helplessness and other
effects. However, many of these considerations go into the monetary
calculation of the social benefits of injury reduction used in the
social costs and benefits above (see Section J). In
[[Page 64422]]
addition, there are some purely economic costs that have not been
captured in this analysis, such as legal costs to employees and lost
output at home.
Some aspects of the burden of occupational injuries can be
quantified in monetary terms. These aspects of the problem of work-
related injuries and illnesses can be measured by the losses
experienced by employees and by the other costs that are externalized
to the rest of society. One consequence of the failure of PPE programs
to prevent job-related injuries is the growth of enormously expensive
income maintenance programs such as workers' compensation and long-term
disability programs. These costs impose a burden on society separate
from and in addition to the human toll in pain and suffering caused by
workplace-related injuries.
One measure of some of the losses associated with lost time due to
work-related injuries is the lost output of the employee, measured by
the value the market places on his or her time. This value is measured
as the employee's total wage plus fringe benefits. Other costs include:
(1) Medical expenses, (2) costs of workers' compensation insurance
administration, and (3) indirect costs to employers (other than those
for workers' compensation administration).
a. Lost Output
OSHA estimates the value of lost output by starting with workers'
compensation indemnity payments and then adding other losses associated
with work-related injuries. The Agency follows four steps to arrive at
a value for lost output:
(1) Calculate PPE-related injury in terms of workers' compensation
indemnity payments;
(2) Add the difference between the value of these indemnity
payments and the employee's after-tax income, based on various studies
comparing workers' compensation payments with after-tax income. This
step estimates the magnitude of lost after-tax income;
(3) Add the estimated value of taxes, based on the typical value of
taxes as a percentage of after-tax income. This step estimates the
value of total income lost; and
(4) Add the value of fringe benefits, based on data on fringe
benefits as a percentage of total income. This step estimates the total
market value of the lost output.
In this approach, injuries are clearly undervalued, because OSHA
assumes that the value associated with injuries is the same as the
value of claims for workers' compensation. An analysis of 1993 workers'
compensation claim data from the Argonaut Insurance Company, updated to
reflect current dollars using a ratio of claims value to total
injuries, shows that the weighted average claim value of the injuries
shown in Table XV-3 is $3,833. Based on nationwide estimates from the
U.S. Social Security Administration, an average of 53 percent of these
payments are paid out for indemnity, and the remaining 47 percent are
paid out for medical costs (NASI, 2006).
b. Indemnity/Lost Income
Workers' compensation indemnity payments typically take two forms:
temporary total disability payments, which cover absences from work
prior to the stabilization of the condition, and permanent disability
payments, which compensate the employee for the long-term effects of a
stabilized condition. On a nationwide basis, the National Academy of
Social Insurance (NASI) estimates that permanent disability payments
account for 79 percent of all indemnity payments. Considering all
payments, those cases classified as permanent partial disability
account for 67 percent of the total, while those classified as
permanent total disability account for 12 percent of the total. The
remaining indemnity payments are for temporary total disability cases
and account for 21 percent of the total (NASI, 2006).
The extent to which income is replaced by each type of indemnity
payment (i.e., temporary or permanent) differs. First, although rules
vary by State, temporary disability income is designed in most States
to replace two-thirds of the employee's before-tax income. However,
most States place a maximum and minimum on the amount of money paid out
to the employee, regardless of his/her actual former income. Studies by
the Worker Compensation Research Institute (WCRI) show that temporary
total disability payments replace between 80 to 100 percent of the
after-tax income of the majority of employees (WCRI, 1993). From 3 to
44 percent of the employees receive less than 80 percent of their
after-tax income, and from 0 to 16 percent receive more than 100
percent of their after-tax income. Unfortunately, WCRI does not provide
estimates of average replacement rates as they vary significantly by
State for a number of reasons, including policy differences, injury
rates, employee demographics, and wage and price variations (NASI,
2006). However, based on these data, it seems reasonable to assume
that, on average, employees receive no more than 90 percent of their
after-tax income while on temporary disability.
On the other hand, data show that permanent partial disability
payments replaced 75 percent of income lost in Wisconsin, 58 percent in
Florida, and 45 percent in California [Berkowitz and Burton]. OSHA uses
the simple average of these three--59 percent--to estimate the extent
of after-tax income replacement for permanent partial disabilities.\31\
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\31\ The use of a simple average rather than a population-
weighted average results in a lower estimate of income loss and is
thus a more conservative approach.
---------------------------------------------------------------------------
Based on these data and the NASI estimates of the distribution of
payments by type, OSHA estimated after-tax income from the total
indemnities paid for injuries preventable by the proposed rule by
assuming payments for temporary disabilities account for 21 percent of
all PPE-preventable indemnity payments and replace 90 percent of after-
tax income and that payments for permanent disabilities account for 79
percent of PPE-preventable indemnity payments and replace approximately
60 percent of after-tax income.
c. Fringe Benefits
In addition to after-tax income loss, lost output includes the
value of taxes that would have been paid by the injured employee and
fringe benefits that would have been paid by the employee's employer.
Total income-based taxes (individual Social Security payments, Federal
income tax, and State income tax) paid were assumed to be 30 percent of
total income.\32\ Fringe benefits were estimated as 40.4 percent of
before-tax income, based on the average fringe benefit data provided by
BLS (BLS, 2005).
---------------------------------------------------------------------------
\32\ A CBO (CBO, 2004) study estimated the current effective
Federal tax rate, averaged over all income levels, at 21.6% (Table
2, p. 18). To this Social Security taxes and state and local income
taxes must be added, so that the number 30% should be a conservative
estimate in most cases.
---------------------------------------------------------------------------
Tables XV-12 and XV-13 apply the estimation parameters developed
above to calculate the total value of the lost output associated with
temporary and permanent disabilities, respectively. As shown, the total
value of the lost output associated with potentially avoidable approved
workers' compensation claims for temporary total disability is
estimated at $17.3 million, and that associated with permanent
disabilities (partial and total) at $93.9 million a
[[Page 64423]]
year. By preventing injuries that lead to disability, the PPE payment
rule will also prevent this lost output.
BILLING CODE 4510-26-C
[GRAPHIC] [TIFF OMITTED] TR15NO07.036
[[Page 64424]]
[GRAPHIC] [TIFF OMITTED] TR15NO07.037
BILLING CODE 4510-26-C
d. Medical
Most elements of medical costs are included in the share of
payments paid for medical costs, estimated to be 47 percent of the cost
of the claims. However, medical costs do not include any first-aid
costs incurred by the employer and, in some cases, costs for
transportation to a medical facility. It should be noted that costs for
treating injuries will remain relatively constant, regardless of who is
actually paying for the medical care (i.e., the employer through
workers' compensation, or a medical insurer). As presented in Table XV-
14, OSHA estimates the medical costs of injuries preventable by the
proposed standard to be $39.2 million a year.
e. Administrative Costs
The administrative costs of workers' compensation insurance include
any funds spent directly on claims adjustment, as well as all other
administrative costs incurred by the insurer in conjunction with
experienced losses.
OSHA calculates the administrative costs of PPE-related injury
claims based on the estimates of benefits and costs to employers for
workers' compensation as provided by the National Academy of Social
Insurance (NASI, 2006). Table XV-15 presents administrative costs as a
percent of the value of claims, by type of insurer. Administrative
costs for private carriers, State funds, and self-insured companies are
estimated to be 71.8 percent, 73.5 percent, and 16.2 percent,
respectively. To estimate the aggregate value of the administrative
costs of insurance, these costs were weighted by the value of the
benefit payments made by each type of insurer. The aggregate value of
the administrative costs of workers' compensation insurance is
estimated to be 58.1 percent of the value of claims. The total value of
claims includes both the indemnity and medical portions of insurance
company payments. As indicated in Table XV-14, the Agency estimates
that the revisions to the PPE standard will save $48.5 million annually
in administrative costs.
It should be noted that cases that fall outside the workers'
compensation system will typically have administrative costs associated
with them--indeed, to the extent they are borne by private medical
insurers, they will carry relatively greater administrative expenses
than the average estimated here.
[[Page 64425]]
[GRAPHIC] [TIFF OMITTED] TR15NO07.038
Table XV-15.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of
Insurance
[$ millions]
----------------------------------------------------------------------------------------------------------------
Ratio of
Type of insurance Total cost Benefits Administrative administrative costs
cost to benefits
----------------------------------------------------------------------------------------------------------------
Private........................ $48,695 $28,346 $20,349 71.8 percent.
State.......................... $19,157 $11,044 $8,113 73.5 percent.
Self-Insured................... $15,478 $13,321 $2,157 16.2 percent.
All Insurance.................. $83,330 $52,711 $30,619 58.1 percent.
----------------------------------------------------------------------------------------------------------------
Source: National Academy of Social Insurance, Workers Compensation: Benefits, Coverage, and Costs, 2004
(Washington, DC, 2006).
f. Indirect Costs
The term ``indirect costs'' describes the costs of work-related
injuries that are borne directly by employers but are not included in
workers' compensation claim costs. Such costs are best estimated by
looking at the costs an employer actually incurs at the time a workers'
compensation claim is filed. These costs include a number of different
social costs, not included elsewhere in these calculations, such as
loss of productivity measured by sick leave to employees for absences
that are shorter than the workers' compensation waiting period, losses
in production associated with the injured workers' departure and return
to work, losses in the productivity of other employees, and a wide
variety of administrative costs other than those borne directly by the
workers' compensation insurer, e.g., medical management costs for the
injured employee. Based on a study (Hinze & Applegate) of indirect
costs of injuries in the construction industry, OSHA estimates that
indirect costs are 20.8 percent of the value of workers' compensation
medical and indemnity payments. As indicated in Table XV-14, the Agency
estimates that the PPE payment rule will save $17.4 million annually in
these indirect costs.
Taken in its entirety, this final rule is estimated to save $216
million annually by avoiding preventable injuries. See Table XV-14.
These cost savings do not include the economic value of the loss of
leisure time. They do not account for
[[Page 64426]]
the burden of chores that are forced on other household members or
hired out. The direct savings also do not include the value of
preventing pain and suffering or loss of life.
L. References
Alpenso, 2007. www.alpenco.com. Accessed May 8, 2007 (Docket
OSHA-S042-2006-0667).
American Association of Railroads, 2006. North American Freight
Railroad Statistics. November 6 (Docket OSHA-S042-2006-0667).
Berkowitz, M., and Burton, J. Permanent Partial Disability
Benefits In Worker Compensation. W. E. Upjohn Institute for
Employment Research, Kalamazoo, Michigan, 1987 (Docket S777, Ex.
1605).
Bureau of Labor Statistics. ``Employer Costs for Employee
Compensation Summary,'' News Release, December 9, 2005.
Bureau of Labor Statistics, 2004. Job Openings and Labor
Turnover Survey, 2004.
Bureau of Labor Statistics. ``Workplace Injuries and Illnesses
in 2005,'' News Release, October 19, 2006.
Bureau of Labor Statistics. ``Nonfatal Occupational Injuries and
Illnesses Requiring Days Away From Work, 2005,'' News Release,
November 17, 2006.
Bureau of National Affairs. Basic Patterns in Union Contracts,
Fourteenth Edition, BNA Books, 1995 (Docket OSHA-S042-2006-0667).
Curtin, R., Presser, S., and Singer, E., ``Changes in Telephone
Survey Nonresponse Over the Past Quarter Century'', Public Opinion
Quarterly, Vol. 69, No. 1, Spring 2005, pp. 87-98 (Docket OSHA-S042-
2006-0667).
Congressional Budget Office, Effective Tax Rates Under Current
Law, 2001-2004, 2004.
Eastern Research Group, Patterns of PPE Provision. 1998 (Ex. 1).
Eastern Research Group, PPE Cost Survey, 1999 (Ex. 14).
Eastern Research Group, Revised Estimates of PPE Use and Payment
Patterns, 2007 Business Roundtable. Improving Construction Safety
Performance: A Construction Industry Cost Effectiveness Project.
Report A-3, January, 1982 (Docket OSHA-S042-2006-0667).
Grainger, 2007. www.grainger.com, Accessed May 8, 2007 Business
Roundtable. Improving Construction Safety Performance: A
Construction Industry Cost Effectiveness Project. Report A-3,
January, 1982 (Docket OSHA-S042-2006-0667).
Hinze, J. and Applegate, L.L. ``Costs of Construction
Injuries'', Journal of Construction Engineering and Management,
117(3):537-550, 1991 (Docket S777, Ex. 26-1589).
Klein, R.W., Nordman, E.C., and Fritz, J.L. Market Conditions in
Workers' Compensation Insurance. Interim Report Presented to the
NAIC Workers' Compensation Task Force, July 9, 1993 (Docket S777,
Ex. 26-1586).
Lab Safety Supply, http://www.labsafety.com. Accessed May 1,
2007 Business Roundtable. Improving Construction Safety Performance:
A Construction Industry Cost Effectiveness Project. Report A-3,
January, 1982 (Docket OSHA-S042-2006-0667).
National Academy of Social Insurance, Workers Compensation:
Benefits Coverage, and Costs, 2004 (Washington, DC, 2006) Business
Roundtable. Improving Construction Safety Performance: A
Construction Industry Cost Effectiveness Project. Report A-3,
January, 1982 (Docket OSHA-S042-2006-0667).
Occupational Safety and Health Administration, Office of
Regulatory Analysis, Background Document to the Regulatory Impact
and Regulatory Flexibility Assessment for the PPE Standard, 1994,
(Docket S060, Ex. 56).
Office of Technology Assessment, Preventing Illness and Injury
in the Workplace, Volume 2-Part B: Working Papers, 1994 (Docket
H049, Ex. 189).
Omark Safety Online, 2007. www.omarksafety.com. Accessed May 8,
2007 Business Roundtable. Improving Construction Safety Performance:
A Construction Industry Cost Effectiveness Project. Report A-3,
January, 1982 (Docket OSHA-S042-2006-0667).
Ryscavage, Paul. ``Dynamics of Economic Well-Being: Labor Force,
1991 to 1993'', U.S. Census Bureau, Current Population Reports,
Household Economic Studies, P70-48, August 1995.
U.S. Census Bureau, 2004. State and Local Employment and
Payroll, March 2004.
U.S. Census Bureau, 2005a. County Business Patterns, 2004.
U.S. Census Bureau, 2005b. Statistics of U.S. Businesses 2004.
U.S. Internal Revenue Service, Corporation Source Book, 2004.
Accessed online at http://www.irs.gov/taxstats/bustaxstats/article/0,,id=149687,00.html, March 2007.
U.S. Postal Service. 2006. Annual Report, 2006.
U.S. Small Business Administration, 2004. Table of Small
Business Size Standards Matched to the North American Industry
Classification System, Effective July 31, 2004. Accessed on-line at
<http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf>, March, 2007.
U.S. Social Security Administration. Annual Statistical
Supplement to the Social Security Bulletin. Washington, DC, 2006.
Viscusi, K., ``The Value of Risks to Life and Health'', Journal
of Economic Literature, Vol. 31, No. 4. (Dec., 1993), pp. 1912-1946
(Docket OSHA-S042-2006-0667).
Viscusi, K. and Aldy, J. ``The Value of a Statistical Life: A
Critical Review of Market Estimates Throughout the World'', The
Journal of Risk and Uncertainty, 2003, 27:1:5-76, 2003 (Docket OSHA-
S042-2006-0667).
Worker Compensation Research Institute. Income Replacement in
California. December, 1993 (Docket S777, Ex. 26-1586).
Working Person's Store, 2007. www.workingperson.com, Accessed
May 8, 2007 (Docket OSHA-S042-2006-0667).
XVI. Environmental Impacts
OSHA has reviewed this rule in accordance with the National
Environmental Policy Act (NEPA), (42 U.S.C. 4321 et seq.), the
regulations of the Council on Environmental Quality (40 CFR Part 1500),
and DOL's NEPA procedures (29 CFR Part II). As a result of this review,
OSHA has determined that this action will have no significant impact on
the external environment.
XVII. Federalism
OSHA has reviewed this final rule in accordance with the Executive
Order on Federalism (Executive Order 13132, 64 FR 43255, August 10,
1999), which requires that federal agencies, to the extent possible,
refrain from limiting State policy options, consult with States prior
to taking any actions that would restrict State policy options, and
take such actions only when there is clear constitutional authority and
the presence of a problem of national scope. Executive Order 13132
provides for preemption of state law only if there is a clear
congressional intent for the Agency to do so. Any such preemption is to
be limited to the extent possible.
Section 18 of the OSH Act (29 U.S.C. 651 et seq.) expresses
Congress' intent to preempt state laws where OSHA has promulgated
occupational safety and health standards. Under the OSH Act, a state
can avoid preemption on issues covered by federal standards only if it
submits, and obtains federal approval of, a plan for the development of
such standards and their enforcement (state plan state) (29 U.S.C.
667). Occupational safety and health standards developed by such state
plan states must, among other things, be at least as effective in
providing safe and healthful employment and places of employment as the
federal standards. Subject to these requirements, state plan states are
free to develop and enforce under state law their own requirements for
safety and health standards.
This final rule complies with Executive Order 13132. As Congress
has expressed a clear intent for OSHA standards to preempt state job
safety and health rules in areas addressed by OSHA standards in states
without OSHA-approved state plans, this rule limits state policy
options in the same manner as all OSHA standards. In states with OSHA-
approved state plans, this action does not significantly limit state
policy options.
XVIII. Unfunded Mandates
This final rule has been reviewed in accordance with the Unfunded
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and
Executive Order 12875. As discussed in the Final Economic Analysis,
OSHA estimates that compliance with the rule will require expenditures
of $85.7 million per year by affected employers.
[[Page 64427]]
Therefore, this rule is not a significant regulatory action within the
meaning of Section 202 of UMRA (Pub. L. 104-4, 2 U.S.C. 1532). OSHA
standards do not apply to State and local governments except in States
that have voluntarily elected to adopt an OSHA State plan.
Consequently, the rule does not meet the definition of a ``Federal
intergovernmental mandate'' (Section 421(5) of UMRA) (2 U.S.C. 658).
In addition, the Agency has concluded that virtually all State Plan
States, the only States in which this rule could have any effect on
State and local government employers, already require that employers
pay for all types of PPE that will be covered by this rule. Thus, this
rule will not have a significant impact on employers who are State and
local governments. In sum, this rule does not impose unfunded mandates
within the meaning of UMRA.
XIX. OMB Review Under the Paperwork Reduction Act of 1995
The final PPE payment rule simply clarifies that employers must pay
for PPE used to comply with OSHA standards, with a few limited
exceptions. As such, the rule does not contain collection-of-
information (paperwork) requirements that are subject to review by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
of 1995 (PRA-95), 44 U.S.C. 3501 et seq., and OMB's regulations at 5
CFR part 1320. PRA-95 defines ``collection of information'' as ``[t]he
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public of facts or opinions by or
for an agency regardless of form or format * * *.'' (44 U.S.C.
3502(3)(A)).
A number of commenters questioned whether they would be required to
keep receipts to prove PPE purchases and, thus, whether the final rule
contains paperwork requirements (See, e.g., Exs. 12: 22, 31, 36, 44,
54, 56, 68, 72, 73, 78, 80, 95, 102, 115, 118, 127, 128, 136, 140, 157,
158, 165, 166, 176, 186, 194, 197, 202, 208, 212, 219, 224, 226, 232,
238, 241). In a representative comment, the NAHB asked:
How will OSHA enforce this standard? When a compliance officer
comes on to the jobsite and sees every employee wearing a hard hat
and safety glasses, will he request to see a receipt from the
employer for the purchase of the PPE? Will the employer then be
cited if he does not have a receipt to prove that he did, in fact,
pay for the PPE being used? (Ex. 12: 212).
The final standard does not require employers to maintain receipts
or any other form of paperwork involving PPE payment, and OSHA will not
cite an employer for failure to have such paperwork. The Agency
understands that businesses commonly keep receipts to comply with
standard accounting codes, for tax accounting purposes, and as a
standard good business practice. However, an employer is not required
to do so by this final rule.
In response to the comment from NAHB, in most instances, an OSHA
inspector will interview employers and employees to determine if an
employer is complying with the PPE payment rule. OSHA does not believe
it will be difficult to ascertain whether an employer paid for a
particular piece of PPE and employers will not need to justify their
purchases with receipts. After publishing the final rule, OSHA will
instruct its inspectors in the requirements of the final rule and that
the final rule does not require employers to keep a record of receipts
or otherwise document determinations made.
XX. State Plan Standards
When federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 26 states or U.S. territories
with their own OSHA-approved occupational safety and health plans must
revise their standards to reflect the new standard or amendment, or
show OSHA why there is no need for action, e.g., because an existing
state standard covering this area is already ``at least as effective''
as the new federal standard or amendment (29 CFR 1953.5(a)). The state
standard must be at least as effective as the final federal rule, must
be applicable to both the private and public (state and local
government employees) sectors, and must be completed within six months
of the publication date of the final federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than an existing standard, states are
not required to revise their standards, although the Agency may
encourage them to do so. These 26 states and territories are: Alaska,
Arizona, California, Connecticut (plan covers only State and local
government employees), Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, New Jersey (plan covers only
State and local government employees), New York (plan covers only State
and local government employees), North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands
(plan covers only Territorial and local government employees),
Washington, and Wyoming.
While this final rule does not change the types of PPE that are
required, it imposes additional or more stringent PPE payment
requirements on employers than existing OSHA standards. Therefore, the
states will be required to revise their standards within six months of
this Federal Register notice or show OSHA why their existing standard
is already ``at least as effective'' as the new federal standard.
Thirteen states require payment for most PPE through regulation or
policy. In addition, three states (California, Minnesota, and Puerto
Rico) currently require payment for all PPE. (In these states, the
employer may be required to pay for the minimal PPE needed to do the
job, but can require the employee to pay for equipment upgraded at the
employee's request.)
OSHA received very few comments concerning implementation of the
final rule in the state plan states. The State of Minnesota noted that
it has required PPE payment by employers since 1973, without any
exceptions, under Minnesota Statute Sec. 182, subd. 10(a). Minnesota
advocated federal adoption of the State's policy of requiring the
employer to pay at least the minimum cost of all PPE needed for the
job, including items of a personal nature that can be used off the job,
e.g., safety-toe footwear and prescription safety eyewear, without
exception. The State expressed concern that employers in Minnesota
would be confused if OSHA adopted a requirement different from the
State's (Ex. 12: 20). It is the employer's responsibility to know and
comply with the applicable occupational safety and health requirements,
whether they are federal or OSHA-approved state plan requirements.
States that choose to operate state programs are free to adopt more
stringent standards but in doing so have a responsibility to
communicate those requirements to employers in their state. A state
plan state may always adopt standards identical to the federal if they
wish to avoid such differences.
While each state plan is ultimately responsible for communicating
its state-specific standards and policies to the employers and
employees within the state, federal OSHA will continue to work with the
state plans to make information about state-specific policies and
regulations that differ from the federal, including PPE payment
requirements, publicly available to employers and employees through Web
postings and other outreach activities.
XXI. Authority and Signature
This document was prepared under the direction of Edwin G. Foulke,
Jr.,
[[Page 64428]]
Assistant Secretary of Labor for Occupational Safety and Health, 200
Constitution Avenue, NW., Washington, DC 20210. This action is taken
pursuant to sections 4, 6, and 8 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657), the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 941), the Contract Work Hours and
Safety Standards Act (Construction Safety Act) (40 U.S.C. 333), and
Secretary of Labor's Order No. 5-2007 (72 FR 31160), and 29 CFR part
1911.
List of Subjects
29 CFR Part 1910
Chemicals, Electric power, Fire prevention, Gases, Hazardous
substances, Health facilities, Health professions, Laboratories,
Logging, Occupational safety and health, Protective equipment,
Radiation protection.
29 CFR Part 1915
Chemicals, Electric power, Fire prevention, Gases, Hazardous
substances, Health facilities, Health professions, Laboratories,
Longshore and harbor workers, Occupational safety and health,
Protective equipment, Radiation protection.
29 CFR Part 1917
Chemicals, Electric power, Fire prevention, Gases, Hazardous
substances, Health facilities, Health professions, Laboratories,
Longshore and harbor workers, Occupational safety and health,
Protective equipment, Radiation protection.
29 CFR Part 1918
Chemicals, Electric power, Fire prevention, Gases, Hazardous
substances, Health facilities, Health professions, Laboratories,
Longshore and harbor workers, Occupational safety and health,
Protective equipment, Radiation protection.
29 CFR Part 1926
Chemicals, Construction industry, Electric power, Fire prevention,
Gases, Hazardous substances, Health facilities, Health professions,
Laboratories, Occupational safety and health, Protective equipment,
Radiation protection.
Signed at Washington, DC this 2nd day of November, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
0
Accordingly, the Occupational Safety and Health Administration amends
parts 1910, 1915, 1917, 1918, and 1926 of Title 29 of the Code of
Federal Regulations as follows:
XXII. Final Rule
General Industry
PART 1910--[AMENDED]
0
1. The authority citation for subpart I of 29 CFR part 1910 is revised
to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable, and 29 CFR Part 1911.
0
2. A new paragraph (h) is added to Sec. 1910.132, to read as follows:
Sec. 1910.132 General requirements.
* * * * *
(h) Payment for protective equipment.
(1) Except as provided by paragraphs (h)(2) through (h)(6) of this
section, the protective equipment, including personal protective
equipment (PPE), used to comply with this part, shall be provided by
the employer at no cost to employees.
(2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots)
and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site.
(3) 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 reimburse the
employee for the shoes or boots.
(4) The employer is not required to pay for:
(i) The logging boots required by 29 CFR 1910.266(d)(1)(v);
(ii) Everyday clothing, such as long-sleeve shirts, long pants,
street shoes, and normal work boots; or
(iii) Ordinary clothing, skin creams, or other items, used solely
for protection from weather, such as winter coats, jackets, gloves,
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and
sunscreen.
(5) The employer must pay for replacement PPE, except when the
employee has lost or intentionally damaged the PPE.
(6) Where an employee provides adequate protective equipment he or
she owns pursuant to paragraph (b) of this section, the employer may
allow the employee to use it and is not required to reimburse the
employee for that equipment. The employer shall not require an employee
to provide or pay for his or her own PPE, unless the PPE is excepted by
paragraphs (h)(2) through (h)(5) of this section.
(7) This paragraph (h) shall become effective on February 13, 2008.
Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to Sec. 1910.132(h): 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.
PART 1915--[AMENDED]
0
1. The authority citation for 29 CFR part 1915 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections. 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
0
2. A new paragraph (f) is added to Sec. 1915.152, to read as follows:
Sec. 1915.152 General requirements.
* * * * *
(f) Payment for protective equipment. (1) Except as provided by
paragraphs (f)(2) through (f)(6) of this section, the protective
equipment, including personal protective equipment (PPE), used to
comply with this part, shall be provided by the employer at no cost to
employees.
(2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots)
and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site.
(3) 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 reimburse the
employee for the shoes or boots.
(4) The employer is not required to pay for:
(i) Everyday clothing, such as long-sleeve shirts, long pants,
street shoes, and normal work boots; or
(ii) Ordinary clothing, skin creams, or other items, used solely
for protection from weather, such as winter coats, jackets, gloves,
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and
sunscreen.
(5) The employer must pay for replacement PPE, except when the
[[Page 64429]]
employee has lost or intentionally damaged the PPE.
(6) Where an employee provides appropriate protective equipment he
or she owns, the employer may allow the employee to use it and is not
required to reimburse the employee for that equipment. The employer
shall not require an employee to provide or pay for his or her own PPE,
unless the PPE is excepted by paragraphs (f)(2) through (f)(5) of this
section.
(7) This paragraph (f) shall become effective on February 13, 2008.
Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to Sec. 1915.152(f): 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.
Longshoring
PART 1917--[AMENDED]
0
1. The authority citation for 29 CFR part 1917 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
0
2. A new Sec. 1917.96 is added, to read as follows:
Sec. 1917.96 Payment for protective equipment.
(a) Except as provided by paragraphs (b) through (f) of this
section, the protective equipment, including personal protective
equipment (PPE), used to comply with this part, shall be provided by
the employer at no cost to employees.
(b) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots)
and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site.
(c) 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 reimburse the
employee for the shoes or boots.
(d) The employer is not required to pay for:
(1) Everyday clothing, such as long-sleeve shirts, long pants,
street shoes, and normal work boots; or
(2) Ordinary clothing, skin creams, or other items, used solely for
protection from weather, such as winter coats, jackets, gloves, parkas,
rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.
(e) The employer must pay for replacement PPE, except when the
employee has lost or intentionally damaged the PPE.
(f) Where an employee provides adequate protective equipment he or
she owns, the employer may allow the employee to use it and is not
required to reimburse the employee for that equipment. The employer
shall not require an employee to provide or pay for his or her own PPE,
unless the PPE is excepted by paragraphs (b) through (e) of this
section.
(g) This section shall become effective on February 13, 2008.
Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to Sec. 1917.96: 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.
Marine Terminals
PART 1918--[AMENDED]
0
1. The authority citation for 29 CFR part 1918 is revised to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections. 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
0
2. A new Sec. 1918.106 is added, to read as follows:
Sec. 1918.106 Payment for protective equipment.
(a) Except as provided by paragraphs (b) through (f) of this
section, the protective equipment, including personal protective
equipment (PPE), used to comply with this part, shall be provided by
the employer at no cost to employees.
(b) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots)
and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site.
(c) 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 reimburse the
employee for the shoes or boots.
(d) The employer is not required to pay for:
(1) Everyday clothing, such as long-sleeve shirts, long pants,
street shoes, and normal work boots; or
(2) Ordinary clothing, skin creams, or other items, used solely for
protection from weather, such as winter coats, jackets, gloves, parkas,
rubber boots, hats, raincoats, ordinary sunglasses, and sunscreen.
(e) The employer must pay for replacement PPE, except when the
employee has lost or intentionally damaged the PPE.
(f) Where an employee provides adequate protective equipment he or
she owns, the employer may allow the employee to use it and is not
required to reimburse the employee for that equipment. The employer
shall not require an employee to provide or pay for his or her own PPE,
unless the PPE is excepted by paragraphs (b) through (e).
(g) This section shall become effective on February 13, 2008.
Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to Sec. 1918.106: 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.
Construction
PART 1926--[AMENDED]
0
1. The authority citation for subpart E of 29 CFR part 1926 is revised
to read as follows:
Authority: Section. 107, Contract Work Hours and Safety
Standards Act (Construction Safety Act) (40 U.S.C. 333); Sections.
4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 653, 655, 657); Secretary of Labor's Order No. 12-71 (36 FR
8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-
96 (62 FR 111), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; and 29 CFR Part 1911.
0
2. A new paragraph (d) is added to Sec. 1926.95, to read as follows:
Sec. 1926.95 Criteria for personal protective equipment.
* * * * *
(d) Payment for protective equipment. (1) Except as provided by
paragraphs (d)(2) through (d)(6) of this section, the protective
equipment, including personal protective equipment (PPE), used to
comply with this part, shall be
[[Page 64430]]
provided by the employer at no cost to employees.
(2) The employer is not required to pay for non-specialty safety-
toe protective footwear (including steel-toe shoes or steel-toe boots)
and non-specialty prescription safety eyewear, provided that the
employer permits such items to be worn off the job-site.
(3) 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 reimburse the
employee for the shoes or boots.
(4) The employer is not required to pay for:
(i) Everyday clothing, such as long-sleeve shirts, long pants,
street shoes, and normal work boots; or
(ii) Ordinary clothing, skin creams, or other items, used solely
for protection from weather, such as winter coats, jackets, gloves,
parkas, rubber boots, hats, raincoats, ordinary sunglasses, and
sunscreen.
(5) The employer must pay for replacement PPE, except when the
employee has lost or intentionally damaged the PPE.
(6) Where an employee provides adequate protective equipment he or
she owns pursuant to paragraph (b) of this section, the employer may
allow the employee to use it and is not required to reimburse the
employee for that equipment. The employer shall not require an employee
to provide or pay for his or her own PPE, unless the PPE is excepted by
paragraphs (d)(2) through (d)(5) of this section.
(7) This section shall become effective on February 13, 2008.
Employers must implement the PPE payment requirements no later than May
15, 2008.
Note to Sec. 1926.95(d): 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.
[FR Doc. 07-5608 Filed 11-14-07; 8:45 am]
BILLING CODE 4510-26-P