Rule: Occupational Safety and Health Standards: Personal Protective Equipment Employer Payment

Thursday,
November 15, 2007
Part III
Department of Labor
Occupational Safety and Health
Administration
29 CFR Parts 1910, 1915, 1917 et al.

Employer Payment for Personal
Protective Equipment; Final Rule
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64342 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations
DEPARTMENT OF LABOR Table of Contents standards require employers to provide

I. Introduction PPE to their employees or to ensure the
Occupational Safety and Health II. Background use of PPE. Some standards indicate in
Administration III. The Proposed Rule broad performance terms when PPE is to
IV. Rationale for Requiring PPE Payment and be used, and what is to be used (See,
29 CFR Parts 1910, 1915, 1917, 1918 Description of the Final Rule e.g., 29 CFR 1910.132). Other provisions
and 1926 V. PPE for Which Employer Payment Is are very specific, such as 29 CFR
Required
[Dockets S–042 (OSHA docket office) and 1910.266(d)(1)(iv), which requires that
VI. Employee Owned PPE
OSHA–S042–2006–0667 (regulations.gov)] VII. Industries Affected chain saw operators be provided with
VIII. Acceptable Methods of Payment protective leggings during specific
[RIN No. 1218–AB77] operations, and 29 CFR 1910.1027(g)(1),
IX. Effective Dates
X. Effect on Existing Union Contracts which requires respiratory protection
Employer Payment for Personal for employees exposed to cadmium
XI. Effect on Other OSHA Standards
Protective Equipment XII. Miscellaneous Issues above a certain permissible exposure
AGENCY: Occupational Safety and Health XIII. Other Alternatives Considered During limit (PEL).
Administration (OSHA), Labor. the Rulemaking Process Some OSHA standards specifically
XIV. Legal Authority require the employer to pay for PPE.
ACTION: Final Rule. XV. Final Economic and Regulatory However, most are silent with regard to
Flexibility Analyses
SUMMARY: Many Occupational Safety whether the employer is obligated to
XVI. Environmental Assessment
and Health Administration (OSHA) XVII. Federalism pay. OSHA’s health standards issued
health, safety, maritime, and XVIII. Unfunded Mandates Reform Act after 1978 have made it clear both in the
construction standards require XIX. OMB Review Under the Paperwork regulatory text and in the preamble that
employers to provide their employees Reduction Act the employer is responsible for
with protective equipment, including XX. State Plan Standards providing necessary PPE at no cost to
personal protective equipment (PPE), XXI. Authority and Signature the employee (See, e.g., OSHA’s
when such equipment is necessary to XXII. Regulatory Text inorganic arsenic standard, 29 CFR
protect employees from job-related I. Introduction 1910.1018(j)(1) and 43 FR 19584). In
injuries, illnesses, and fatalities. These addition, the regulatory text and
requirements address PPE of many In 1999, OSHA issued a proposal to preamble discussion for some safety
kinds: hard hats, gloves, goggles, safety require employers to pay for all standards have also been clear that the
shoes, safety glasses, welding helmets protective equipment, including employer must both provide and pay for
and goggles, faceshields, chemical personal protective equipment (PPE), PPE (See, e.g., the logging standard, 29
protective equipment, fall protection with explicit exceptions for certain CFR 1910.266(d)(1)(iii) and (iv) and 59
equipment, and so forth. The provisions safety shoes, prescription safety FR 51701).
in OSHA standards that require PPE eyewear, and logging boots (64 FR For most PPE provisions in OSHA’s
generally state that the employer is to 15402). The proposal cited two primary standards, however, the regulatory text
provide such PPE. However, some of reasons for requiring employers to pay does not explicitly address the issue of
these provisions do not specify that the for PPE. First, OSHA preliminarily payment for personal protective
employer is to provide such PPE at no concluded that the Occupational Safety equipment. For example, 29 CFR
cost to the employee. In this and Health Act of 1970 (OSH Act, or the 1910.132(a) is the general provision
rulemaking, OSHA is requiring Act) implicitly requires employers to requiring employers to provide PPE
employers to pay for the PPE provided, pay for PPE that is necessary to protect when necessary to protect employees.
with exceptions for specific items. The the safety and health of employees. This provision states that the PPE must
rule does not require employers to Second, OSHA preliminarily concluded be provided, used, and maintained in a
provide PPE where none has been that an across-the-board employer- sanitary and reliable condition. It does
required before. Instead, the rule merely payment requirement would result in not state that the employer must pay for
stipulates that the employer must pay safety benefits by reducing the misuse it or that it must be provided at no cost
for required PPE, except in the limited or non-use of PPE (64 FR 15406–07). to employees. The provisions that are
cases specified in the standard. Following an initial notice and silent on whether the employer must
comment period, an informal pay have been subject to varying
DATES: This final rule becomes effective
rulemaking hearing, a second notice and interpretation and application by
on February 13, 2008. The final rule
comment period on specific issues, and employers, OSHA, the Occupational
must be implemented by May 15, 2008.
careful Agency deliberation, OSHA Safety and Health Review Commission
ADDRESSES: In accordance with 28 (Review Commission), and the courts.
finds that its preliminary conclusions
U.S.C. 2112(a), the Agency designates are appropriate and is therefore issuing In 1994, OSHA established a
the Associate Solicitor of Labor for this final standard requiring employers nationwide policy on the issue of
Occupational Safety and Health, Office to pay for PPE, with limited exceptions. payment for required PPE in a
of the Solicitor of Labor, Room S–4004, memorandum to its field staff dated
U.S. Department of Labor, 200 II. Background October 18, 1994, ‘‘Employer Obligation
Constitution Avenue, NW., Washington, Employees often need to wear to Pay for Personal Protective
DC 20210, to receive petitions for protective equipment, including Equipment.’’ OSHA stated that for all
review of the final rule. personal protective equipment (PPE), to PPE standards the employer must both
FOR FURTHER INFORMATION CONTACT: Mr. be protected from injury, illness, and provide, and pay for, the required PPE,
Kevin Ropp, OSHA Office of death caused by exposure to workplace except in limited situations. The
Communications, Room N–3647, U.S. hazards. PPE includes many different memorandum stated that where PPE is
Department of Labor, 200 Constitution types of protective equipment that an very personal in nature and used by the
Avenue, NW., Washington, DC 20210. employee uses or wears, such as fall employee off the job, such as is often the
Telephone: (202) 693–1999. arrest systems, safety-toe shoes, and case with steel-toe safety shoes (but not
SUPPLEMENTARY INFORMATION: protective gloves. Many OSHA metatarsal foot protection), the issue of
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64343
payment may be left to labor- pay for PPE was a logical extension of were excepted from the employer
management negotiations. the undisputed principle that employers payment requirement, in large part
However, the Review Commission must pay for engineering controls. The because these items were considered to
declined to accept the interpretation proposal noted that most standards be very personal in nature and were
embodied in the 1994 memorandum as require employers to install engineering often worn off the jobsite. The proposal
it applied to 29 CFR 1910.132(a). In controls, such as ventilation devices, would have allowed the exceptions if
Secretary of Labor v. Union Tank Car and to implement administrative they met the following conditions: (1)
Co., 18 O.S.H. Cas. (BNA) 1067 (Rev. measures, such as establishing specific The employer permits such footwear or
Comm. 1997), an employer was issued regulated areas or danger zones, as the eyewear to be worn off the jobsite; (2)
a citation for failing to pay for primary means for reducing employee the footwear or eyewear is not used at
metatarsal foot protection and welding exposure to hazardous conditions. Since work in a manner that renders it unsafe
gloves. The Review Commission vacated the Agency viewed PPE as another type for use off the job-site; and (3) such
the citation, finding that the Secretary of hazard control measure used to footwear or eyewear is not designed for
had failed to adequately explain the protect employees, there was no basis to special use on the job. In addition,
policy outlined in the 1994 distinguish PPE from other hazard under the proposed revision, the
memorandum in light of several earlier controls such as engineering controls employer would not have to pay for
letters of interpretation from OSHA that and administrative controls for purposes logging boots required by 29 CFR
it read as inconsistent with that policy. of cost allocation (64 FR 15408). OSHA 1910.266(d)(1)(v) (Id. at 15403).
In response to the Union Tank decision, also indicated that requiring employers The limited exceptions to the general
OSHA issued the proposed standard on generally to pay for PPE would be payment rule recognized that there are
March 31, 1999 (64 FR 15402–15441). consistent with the Agency’s approach certain types of PPE that fall outside the
of including explicit requirements in scope of the general statutory
III. The Proposed Rule
many health standards that PPE must be requirement for employers to pay for the
The proposed rule would have provided at no charge to employees. means of compliance with OSHA
established a uniform requirement that standards. While safety-toe protective
employers pay for all types of PPE B. Safety and Health Benefits shoes and boots, prescription safety
required under OSHA standards, except Although OSHA proposed the PPE eyewear, and logging boots are
for certain safety-toe shoes and boots, payment rule primarily to clarify necessary to protect employees, the
prescription safety eyewear, and logging employers’ obligations under its Agency considered other factors in
boots. The proposal cited two main standards that require employers to deciding to exempt this equipment from
justifications for requiring employers to provide PPE, the Agency also believed the employer payment requirement,
pay for PPE. First, OSHA preliminarily that the revised rules would improve including that the equipment is very
concluded that the OSH Act requires protections for employees who must personal, is often used outside the
employers to pay for PPE that is wear PPE. OSHA cited a number of workplace, and that it is taken by
necessary for employees to perform reasons underlying this belief in the employees from jobsite to jobsite and
their jobs safely. Second, OSHA preamble to the proposed rule. First, the employer to employer. The Agency
preliminarily concluded that the Agency believed that employers were stated that there is ‘‘little statutory
proposed rule would enhance more knowledgeable about hazards justification’’ for requiring employers to
compliance with existing PPE existing in the workplace, and were pay for this type of PPE (Id. at 15407).
requirements in several practical ways, therefore in the best position to identify The proposal asked for comment on
thereby significantly reducing the risk of and select the correct equipment and the exceptions to the general employer
non-use or misuse of PPE (64 FR 15406– maintain it properly (Id. at 15409). payment requirement. One alternative
07). Second, the Agency believed that on which public input was specifically
employer payment for PPE would requested would have excepted any
A. Preliminary Statutory Analysis reduce the risk of employees not using type of PPE that the employer could
OSHA advanced three main or misusing PPE by ensuring that demonstrate was personal in nature and
justifications for preliminarily employers maintain central control over customarily used off the job (Id. at
interpreting the OSH Act to require the selection, issuance, and use of PPE 15416). OSHA also sought comment on
employers to pay for virtually all PPE. (Id.). Third, OSHA believed that whether there were other specific types
As a threshold matter, OSHA cited the employees would be more likely to of PPE besides safety-toe shoes and
statute and legislative history that cooperate in achieving full compliance boots and prescription safety eyewear
Congress intended that employers bear with existing standards if protective that should be excepted, or whether
general financial responsibility for the equipment was provided at no charge employers should pay for all PPE
means necessary to make workplaces (Id.). In the Agency’s opinion, all of including safety-toe shoes and boots and
safe (64 FR 15404). The Agency believed these considerations together would prescription safety eyewear (Id.).
that this intent was evidenced by the serve to increase the use and Finally, the proposal sought comment
fact that the statute makes employers effectiveness of PPE, and thus reduce on whether the exceptions were
solely responsible for compliance with the incidence of injuries and illnesses appropriate in high-turnover industries
safety and health standards. The that are caused by non-use or misuse of like construction and whether unique
employer’s legal responsibility to ensure PPE. issues in the maritime industry should
compliance implies an obligation to pay affect the issue of who pays for PPE
for the means necessary to that end (Id.). C. Proposed Exceptions (Id.).
OSHA also relied upon statements in OSHA proposed to require the On July 8, 2004, OSHA published a
the legislative history demonstrating employer to pay for all PPE required by notice to re-open the record on another
that lawmakers expected employers to OSHA standards, with explicit category of PPE—tools of the trade—that
bear the costs of complying with OSHA exceptions for certain safety-toe some commenters suggested should be
standards (Id.). protective footwear and prescription exempted from an employer payment
OSHA further preliminarily safety eyewear. Safety-toe protective requirement (69 FR 41221–41225).
concluded that requiring employers to footwear and prescription safety glasses Specifically, OSHA asked a number of
questions and solicited comment on example, the standards for logging OSHA’s conclusions that an employer
whether and how a final rule should (§ 1910.266), noise (§ 1910.95), lead payment rule would result in significant
address situations where PPE has been (§ 1910.1025), asbestos (§ 1910.1001) safety benefits.
customarily provided by employees. and bloodborne pathogens (§ 1910.1030)
The comments received by the 3. Clarity in PPE Payment Policy
require employers to provide employees
Agency during this limited re-opening with PPE at no cost to employees. In Another benefit of the final PPE
are included in the discussion of the litigation following the issuance of some payment rule is clarity in OSHA’s
rulemaking record below.1 of these standards, the courts and the policy. While it is true that most
Review Commission have upheld employers pay for most PPE most of the
IV. Rationale for Requiring PPE
OSHA’s legal authority to require time, the practices for providing PPE are
Payment and Description of the Final
employers to pay for PPE. quite diverse. Many employers pay for
Rule
some items and not for others, either as
A. Rationale for Requiring PPE Payment 2. The Rule Will Result in Safety a matter of collective bargaining or long
Benefits standing tradition. In some cases, costs
In this final rule, OSHA is requiring
employers to pay for the PPE used to Separate from effectuating the are shared between employees and
comply with OSHA standards, with a statutory cost allocation scheme, this employers. In other workplaces, the
few exceptions. OSHA is promulgating rule will also help prevent injuries and employer pays for more expensive or
the final rule for three primary reasons. illnesses. OSHA has carefully reviewed technologically advanced PPE while
First, the rule effectuates the underlying the rulemaking record and finds that requiring employees to pay for more
requirement in the OSH Act that requiring employers to pay for PPE will common items. However, in some
employers pay for the means necessary result in significant safety benefits. As workplaces exactly the opposite is true.
to create a safe and healthful work such, it is a legitimate exercise of Collective bargaining agreements
environment. This includes paying for OSHA’s statutory authority to often contain pages of text describing
the requirements in OSHA’s safety and promulgate these ancillary provisions in PPE provisions, including lists of the
health standards. Second, the rule will its standards to reduce the risk of injury items employers will pay for and those
reduce work-related injuries and and death. that will be the responsibility of
illnesses. It is thus a legitimate exercise There are three main reasons why the employees. Even these have little or no
of OSHA’s rulemaking authority to final rule will result in safety benefits: consistency. For example, Ms. Nowell of
promulgate ancillary provisions in its • When employees are required to pay for the United Food and Commercial
standards that are reasonably related to their own PPE, many are likely to avoid PPE Workers Union (UFCW) pointed to
the purposes of the underlying costs and thus fail to provide themselves differences in PPE payment practices
with adequate protection. OSHA also across food processing establishments:
standards. Third, the rule will create a believes that employees will be more
clear policy across OSHA’s standards, Our contracts show differences across
inclined to use PPE if it is provided to them
thus reducing confusion among industries, as well as across companies. We
at no cost.
have also found differences between union
employers and employees concerning • Employer payment for PPE will clearly
plants and those that are non-union. Non-
the PPE that employers must provide at shift overall responsibility for PPE to
union workers [are] paying for more of their
no cost to employees. employers. When employers take full
PPE.
responsibility for providing PPE to their
1. The OSH Act Requires Employer This variation has led to disparate
employees and paying for it, they are more
treatment of workers who do the same jobs,
Payment for PPE likely to make sure that the PPE is correct for sometimes for the same company, but at
OSHA is requiring employers to pay the job, that it is in good condition, and that different locations. * * * One of the most
the employee is protected. inconsistent items, both as to their
for PPE used to comply with OSHA • An employer payment rule will
standards in order to effectuate the requirement and the issue of who pays, is
encourage employees to participate whole- rubber boots, often steel toed, for production
underlying cost allocation scheme in the heartedly in an employer’s safety and health workers. The floors in poultry and meat
OSH Act. The OSH Act requires program and employer payment for PPE will plants and other food processing as well
employers to pay for the means improve the safety culture at the worksite. * * * are wet, often from standing water,
necessary to create a safe and healthful OSHA’s conclusions regarding the and slippery from fat and product that
work environment. Congress placed this safety benefits of the employer payment invariably covers the floors (Tr. 184–186).
obligation squarely on employers, rule are supported by the numbers of Improved clarity in OSHA’s
believing such costs to be appropriate in independent occupational safety and standards, as well as a more consistent
order to protect the health and safety of health experts in the record who stated approach from company to company,
employees. This final rule does no more that employer payment for PPE will will have benefits for both employers
than clarify that under the OSH Act result in safer working conditions. and employees. The record shows that
employers are responsible for providing Independent safety groups that PPE provision has been a contentious
at no cost to their employees the PPE supported the rule and agreed with issue, and that employers and
required by OSHA standards to protect OSHA’s analysis that it will result in employees are spending an inordinate
employees from workplace injury and safety benefits include: The American amount of time and effort discussing,
death. College of Occupational and negotiating, and generally working out
This policy is consistent with OSHA’s Environmental Medicine (ACOEM); the who is to pay for PPE. The rulemaking
past practice in numerous rulemakings. American Association of Occupational will put some of that discussion to rest
Since 1978, OSHA has promulgated Health Nurses (AAOHN); and the by providing clear requirements. As
nearly twenty safety and health American Society of Safety Engineers noted by ASSE ‘‘[a] key issue for ASSE
standards that explicitly require (ASSE). The National Institute for members in improving the efficiency/
employers to furnish PPE at no cost. For
Occupational Safety and Health effectiveness of safety and health

1 Comments received in response to the re-
(NIOSH), the federal agency with expert programs is consistency’’ (Ex. 12: 110).
opening are indicated as Exhibits ‘‘45: X’’ or ‘‘46:
responsibility for occupational safety For these reasons, OSHA is
X.’’ All other citations refer to comments and and health research created by Congress promulgating this final rule requiring,
testimony in response to the proposal. in the OSH Act, also strongly supported with limited exceptions, employer
payment for PPE used to comply with 1910.132(h)(2); 1915.152(f)(2); The final rule also clearly addresses
OSHA standards. (See Section XIV, 1917.96(a); 1918.106(a); 1926.95(d)(2)) the use of employee-owned PPE. (See 29
‘‘Legal Authority,’’ for a more detailed The final rule clarifies that an employer CFR 1910.132(h)(6); 1915.152(f)(6);
discussion of the justification for the is not required to pay for shoes with 1917.96(f); 1918.106(f); 1926.95(d)(6))
final rule.) integrated metatarsal protection as long The rule acknowledges that employees
as the employer provides and pays for may wish to use PPE they own, and if
B. Description of the Final Rule
metatarsal guards that attach to the their employer allows them to do so, the
This rule does not set forth new shoes. employer will not need to reimburse the
requirements regarding the PPE that A third exception to the final rule is employees for the PPE. However, the
must be provided and the circumstances located only in the general industry regulatory text also makes clear that
in which it must be provided. The rule standard (at 29 CFR 1910.132(h)(4)(i)) employers cannot require employees to
merely requires employers to pay for the and exempts logging boots from the provide their own PPE or to pay for
PPE that is used to comply with the employer payment requirement. The their own PPE. The employee’s use of
Parts amended. The rule generally logging standard does not require PPE they own must be completely
requires employers to pay for PPE, and employers to pay for the logging boots voluntary.
sets forth specific exceptions where required by 1910.266(d)(1)(v), but leaves The final provision in the rule
employers are not required to pay for the responsibility for payment open to provides an enforcement deadline of six
such equipment. The final rule includes employer and employee negotiation. months from the date of publication to
the exceptions in the proposed rule, The final rule makes clear that logging allow employers time to change their
which have been clarified and boots will continue to be excepted from existing PPE payment policies to
simplified; clarifications of OSHA’s the employer payment rule. accommodate the final rule. (See 29 CFR
intent in the proposed rule regarding 1910.132(h)(7); 1915.152(f)(7);
The fourth exception to employer
everyday clothing and weather-related 1917.96(f); 1918.106(f); 1926.95(d)(7)) A
payment in the final rule relates to
clothing; and clarifications regarding note to the final standard also clarifies
everyday clothing. (See 29 CFR
employee-owned PPE and replacement that when the provisions of another
PPE that were raised by various 1910.132(h)(4)(ii); 1915.152(f)(4)(i);
1917.96(d)(1); 1918.106(d)(1); OSHA standard specify whether or not
commenters. While these clarifications the employer must pay for specific
have added several paragraphs to the 1926.95(d)(4)(i)) The final rule
recognizes that there are certain equipment, the payment provisions of
regulatory text, the final rule provides that standard will prevail.
employees no less protection than that circumstances where long-sleeve shirts,
long pants, street shoes, normal work Sections V through XI below further
provided by the proposal. describe the final rule and discuss the
The first paragraph in the final rule boots, and other similar types of
clothing could serve as PPE. However, comments received during the
contains the general requirement that rulemaking process:
employers must pay for the protective where this is the case, the final rule
excepts this everyday clothing from the • Section V describes the PPE
equipment, including personal required to be paid for by employers,
protective equipment that is used to employer payment rule. Similarly,
employers are not required to pay for and the exceptions to the payment
comply with the amended OSHA requirement. It also explains the final
standards. (See 29 CFR 1910.132(h)(1); ordinary clothing used solely for
protection from weather, such as winter rule’s treatment of replacement PPE.
1915.152(f)(1); 1917.96; 1918.106; • Section VI discusses the exception
1926.95(d)(1)) The provisions that coats, jackets, gloves, and parkas (See 29
from employer payment when an
follow the first paragraph modify this CFR 1910.132(h)(4)(iii);
employee owns appropriate PPE and
general requirement for employer 1915.152(f)(4)(ii); 1917.96(d)(2);
asks to use it in place of the equipment
payment and include the limited 1918.106(d)(2); 1926.95(d)(4)(ii)). In the
the employer provides.
exceptions to the employer-payment rare case that ordinary weather gear is • Section VII discusses the industries
rule. Employers are responsible for not sufficient to protect the employee, affected by the final rule and how
paying for the minimum level of PPE and special equipment or extraordinary employer payment applies to different
required by the standards. If an clothing is needed to protect the employment situations.
employer decides to use upgraded PPE employee from unusually severe • Section VIII describes acceptable
to meet the requirements, the employer weather conditions, the employer is means for employers and employees to
must pay for that PPE. If an employer required to pay for such protection. comply with the final rule and discusses
provides PPE at no cost, an employee OSHA also notes that clothing used in various payment mechanisms
asks to use different PPE, and the artificially-controlled environments employers and employees have created
employer decides to allow him or her to with extreme hot or cold temperatures, to effectuate payment for PPE.
do so, then the employer is not required such as freezers, are not considered part • Sections IX through XI explain the
to pay for the item. of the weather gear exception. effective date of the final rule, the effect
The first exception addresses non- The final rule clarifies the issue of of the rule on collective bargaining
specialty safety-toe protective footwear who pays for replacement PPE. The agreements, and how employer payment
and non-specialty prescription safety final rule requires that the employer pay provisions in other standards affect the
eyewear. (See 29 CFR 1910.132(h)(2); for the replacement of PPE used to provisions in the final rule.
1915.152(f)(2); 1917.96(a); 1918.106(a); comply with OSHA standards. (See 29
1926.95(d)(2)) The regulatory text makes CFR 1910.132(h)(5); 1915.152(f)(5); V. PPE for Which Employer Payment Is
clear that employers are not required to 1917.96(e); 1918.106(e); 1926.95(d)(5)) Required
pay for ordinary safety-toe footwear and However, in the limited circumstances In this section, OSHA will address
ordinary prescription safety eyewear, so in which an employee has lost or several key issues, including the
long as the employer allows the intentionally damaged the PPE issued to personal protective equipment that
employee to wear these items off the him or her, an employer is not required employers are required to provide at no
job-site. to pay for its replacement and may cost to their employees and the
The second exception relates to require the employee to pay for such protective equipment that is exempted.
metatarsal protection. (See 29 CFR replacement. OSHA wishes to emphasize that this
rulemaking does not change existing discusses those items that are not PPE that the rule could be interpreted to
OSHA requirements as to the types of or are not required by OSHA standards mean that employers would be required
PPE that must be provided. Instead, the and thus not covered by the final rule. to pay for ‘‘[e]ven the most basic work
rule merely stipulates that the employer Second, the Agency addresses the clothes, hats, ear muffs, sunglasses, long
must pay for PPE that is required by exceptions to the general employer sleeve shirts, pants, socks, etc.’’ (Ex. 12:
OSHA standards, with the exceptions payment requirement in the final rule. 129).
listed. And third, OSHA describes other items Under the final rule, employers are
The items excepted from payment by the Agency determined needed more not required to pay for items that are not
this rule are: extensive discussion, based on the PPE. This includes some of the items
• Non-specialty safety-toe protective comments to the record. identified by commenters above.
footwear (including steel-toe shoes or Uniforms, caps, or other clothing worn
steel-toe boots) and non-specialty A. Items That Are Not Considered To Be solely to identify a person as an
prescription safety eyewear, that is PPE or Are Not Required by OSHA employee would not be considered to be
allowed by the employer to be worn off Standards PPE because such items are not being
the job-site; The final rule clarifies that an worn for protection from a workplace
• Shoes or boots with built-in employer’s obligation to pay for PPE is hazard. Similarly, items worn to keep
metatarsal protection that the employee limited to PPE that is used to comply employees clean for purposes unrelated
has requested to use instead of the with the OSHA standards amended by to safety or health are not considered to
employer-provided detachable this rule, except for the specific listed be PPE. Thus, items such as denim
metatarsal guards; exceptions. Thus, if a particular item is coveralls, aprons or other apparel, when
• Logging boots required by not PPE or is not required by OSHA worn solely to prevent clothing and/or
1910.266(d)(1)(v); standards, it is not covered by the final skin from becoming soiled (unrelated to
• Everyday work clothing; or rule. safety or health), are not considered to
• Ordinary clothing, skin creams, or Many commenters sought clarification be PPE and employer payment is not
other items used solely for protection as to whether certain items were PPE required by this rule.
from the weather. and would therefore need to be paid for The same is true for items worn for
This section is particularly important by employers. These items included product or consumer safety or patient
because commenters to the rulemaking coveralls (See, e.g., Exs. 12: 111, 163, safety and health rather than employee
record identified a number of items that 206; 45: 28); aprons (See, e.g., Exs. 12: safety and health. Several hearing
they thought would be subject to the 111, 163, 206); uniforms (See, e.g., Exs. participants in the food industry
rule and asked the Agency to clarify 12: 19, 55. 91); overalls (See, e.g., Ex. 45: mentioned use of hair nets and beard
whether the final rule would cover the 28); standard work clothing (See, e.g., nets in their discussion of PPE worn in
items. Some of these items are: gloves Exs. 45: 28, 48; 12: 55, 91; 46: 44); and food processing plants (Tr. 186–187,
(see, e.g., Exs. 12: 7, 17, 19, 55, 68, 111, everyday work gloves (See, e.g., Exs. 12: 190). To the extent that these items are
129, 149, 163, 171, 217, 235), metatarsal 6, 7, 22, 55, 68, 91, 109, 111, 129, 163, not used to comply with machine
shoes (see, e.g., Exs. 12: 149, 235) , 171, 172, 173, 189, 206, 212, 221, 222; guarding requirements, but are worn
sunglasses (see, e.g., Exs. 12: 129, 222), 45: 13, 28). In a representative comment, solely to protect the food product from
goggles (see, e.g., Exs. 12: 111, 163), Rowan Companies, Inc. remarked that contamination, this rule does not
flame retardant clothing (see, e.g., Exs. the standard should not be ‘‘[a]n ‘‘open require employer payment. Similarly,
12: 16, 132, 133, 183, 206, 221, 46: 46), checkbook’’ to force employers to plastic or rubber gloves worn by food
personal apparel (see, e.g., Exs. 12: 10, provide for common and routine items service employees solely to prevent food
16, 28), standard work apparel (see, e.g., not necessary for personal protection.’’ contamination during meal preparation,
Exs. 12: 55, 129), long-sleeve shirts (see, This commenter added: and surgical masks worn by healthcare
e.g., Exs. 12: 210, 222), long pants (see, [o]ther items could be considered personal personnel solely to prevent transmitting
e.g., Exs. 12: 117, 222), jeans (see, e.g., protective equipment by those wishing to organisms to patients are not covered by
Ex. 12: 10), cotton coveralls (see, e.g., unfairly benefit from this rulemaking * * * this rule. Of course, cut-proof gloves
Ex. 12: 210), cold weather gear (see, e.g., by using overly broad interpretations of the used to prevent lacerations will be
Exs. 12: 129, 210), non safety-toe work proposed wording, items such as cotton work covered by the rule, and employer
boots (see, e.g., Ex. 12: 10), hard hats gloves, rubber boots, rain suits, and uniforms payment is required.
(see, e.g., Exs. 12: 29, 55, 68, 91, 112), could be labeled personal protective Ordinary hand tools are also not PPE.
aprons (see, e.g., Exs. 12: 111, 163), rain equipment (Ex. 12: 55).
While some specific and specialized
suits (see, e.g., Exs. 12: 55, 91, 210), A number of electrical contractors tools have protective characteristics,
back belts (see, e.g., Ex. 12: 111, 163), raised the issue of tools required for such as electrically insulated ‘‘hot
coveralls (see, e.g., Ex. 12: 111, 129, performing electrical work under the sticks’’ used by electric utility
163), tool belts (see, e.g., Ex. 12: 129), National Fire Protection Association’s employees to handle live power lines,
and face masks in areas where NFPA 70E (Standard for Electrical these tools are not considered to be PPE.
respirators are not required (see, e.g., Ex. Safety in the Workplace) voluntary They are more properly viewed as
12: 109). consensus standard, which requires engineering controls that isolate the
While OSHA believes it is setting certain tools to be voltage rated (See, employee from the hazard—similar to
forth a clear requirement in this final e.g., Exs. 41: 1; 45: 6, 7, 8, 9, 10, 11, 12, safe medical devices (e.g., self-sheathing
rule—that employers pay for PPE 14, 15, 16, 19, 20, 22, 23, 24, 29, 31, 38, needles) required under OSHA’s
required by OSHA standards except for 41, 44, 45, 46, 47; 46: 21, 22, 23, 24, 26, Bloodborne Pathogens (BBP) standard—
the exceptions listed in the standard— 29, 38, 40). Several electric utility firms and thus would not be covered by this
OSHA understands the request by noted that ‘‘[s]ome equipment can be final rule. (As an engineering control
commenters to provide guidance on the considered to be personal tools, or it method, however, employers must pay
applicability of the standard to certain may be used for convenience or for this equipment.)
pieces of equipment. OSHA does that in cleanliness versus protection from Numerous commenters noted that
this section. The section is divided into hazards * * *’’ (See, e.g., Exs. 12: 107, many types of equipment or clothing
three discussions. First, the Agency 114, 150, 201, 206). Dow was concerned could be considered PPE and that the
proposed rule might then require employees to use under the voluntary and is not generally worn by other
employers to pay for those items. More use provisions of the § 1910.134 employees due to size and hygienic
specifically, Organization Resource respiratory protection standard are not concerns; was often worn away from the
Counselors, Inc. (ORC) stated: required to comply with an OSHA jobsite; was readily available in
Many companies have long-standing standard. Because of this, employer appropriate styles; and was customarily
general safety rules or policies requiring payment is not required. paid for by employees in some
workers to wear types of work clothing or use The NAA also raised the question of industries (Id. at 15415). OSHA also
items which are not specifically regulated by whether Section 5(a)(1) of the OSH Act noted that the 1994 policy
other OSHA standards, but which may help would require the provision of PPE that memorandum exempted safety shoes
workers to avoid workplace injury. Examples would be subject to an employer from the employer payment requirement
are long sleeved shirts, long-legged pants, payment requirement (Ex. 12: 10, p. (Id.). The Agency proposed to exempt
and simple work gloves (fabric or leather). 11).2 OSHA’s PPE standards at prescription safety eyewear because it
All of these will help prevent abrasions to § 1910.132, § 1915.152, § 1917.95, also was very personal in nature, could
skin, but are not specified in any OSHA
standard, are not currently viewed as PPE
§ 1918.105, and § 1926.95, already generally be used by only one employee,
* * * Similarly, coats, hats, and gloves worn require employers to determine the PPE and was commonly used away from
by employees working outdoors have an necessary for their work settings. OSHA work (Id.).
employee health enhancement aspect in that is not aware of PPE that would protect Many commenters supported the
they protect against exposure to the elements against hazards subject to enforcement proposed exceptions for safety-toe
* * * (Ex. 12: 222). under the general duty clause that protective footwear and non-specialty
In a similar discussion, Bell Atlantic would not also be identified by such a prescription safety eyewear (See, e.g.,
commented: ‘‘Bell Atlantic requires its determination. If there are any such Exs. 12: 4, 7, 9, 28, 111, 113, 117, 163,
technicians to wear long sleeve shirts hazards, then the PPE payment 184, 201). In a representative comment,
and long pants when climbing utility provisions of this standard would not BP-Amoco stated:
poles; this PPE protects the employee’s apply since the provisions apply only to BP-Amoco concurs with OSHA’s approach
skin from abrasion, irritation, splinters, equipment used to comply with the to this topic in the proposed rule. These two
etc. This clothing is personal in nature Parts of OSHA’s standards that this rule items are different than other types of
and it is worn off the job; we do not amends, not with section 5(a)(1) of the personal protective equipment in that they
specify what types of long sleeve shirts OSH Act. are individually fitted and the styling of
Although employer payment is not these items is important to many employees.
and long pants must be worn’’ (Ex. 12: Therefore, eyewear and safety shoes should
required when an item of PPE is not
117). The National Arborist Association be excluded from a general requirement for
used to comply with an OSHA standard,
(NAA) also was concerned that the employers to pay for personal protective
OSHA encourages employers to pay for
proposed rule would potentially: equipment. We further agree that the three
this PPE, given the safety benefits OSHA conditions associated with this exception are
[y]ield absurd results such as shifting to finds will accrue when employers are appropriate and should be retained without
employers the cost of purely personal responsible for providing and paying for modification in the final rule (Ex. 12: 28).
clothing items which are required to be worn PPE.
on the job for a protective function, but The Voluntary Protection Program
which are uniquely personal to the employee B. Exceptions Participants Association (VPPPA)
and are ubiquitously worn as much off the added:
job as on the job—such items as required 1. Safety-Toe Protective Footwear and
Non-Specialty Prescription Safety As OSHA has proposed, it is reasonable for
blue jeans rather than shorts to protect legs
Eyewear employees to pay for PPE that is used off the
from being scratched from branches; tighter-
job as well as on (i.e. PPE that satisfies the
fitting tee shirts or pants to prevent clothes The proposed rule included proposed standard’s 3 conditions) and it
from inadvertently becoming caught in a exemptions for safety-toe protective should be left to the employees and employer
chain saw being used to cut a branch, or to reach an agreement for the purchase of this
sturdy work boots required to be worn to
footwear, often called steel-toe shoes,
and prescription safety eyewear. The kind of PPE. Some facilities may decide it is
provide ankle support and sole protection on in their best interest—for employee morale or
rough terrain (Ex. 12: 10 pp. 2–3). proposal would have placed conditions
other reasons—to pay for this equipment, but
on these exemptions: (1) The employer the decision should be voluntary (Ex. 12:
In response to each of these concerns, permits such footwear or eyewear to be
OSHA has included language in the 113).
worn off the jobsite; (2) the footwear or
standard to explicitly exclude normal eyewear is not used at work in a manner Other commenters strongly objected
work clothing from the employer that renders it unsafe for use off the to any exceptions, and urged OSHA to
payment requirement. OSHA believes jobsite; and (3) such footwear or require employers to pay for all types of
that this reflects the original intent of eyewear is not designed for special use PPE. Several stated that PPE is part of
the proposal (See Section B below). on the job (64 FR 15415). The final rule the hierarchy of controls, and while
Thus, if the protective equipment is contains a similar condition; employers OSHA would not ask an employee to
used to comply with an OSHA standard, are not required to pay for these items pay for a ventilation system, neither
and is not exempted from payment by when they are permitted to be worn off should it expect the employee to pay for
this standard, the employer must the jobsite. any PPE (See, e.g., Exs. 12: 19, 12: 100,
provide it at no cost to his or her In the proposed rule, the Agency 22A, 23, 25, 26A, 37, 100; Tr. 173–174,
employees. Otherwise, the employer is reasoned that safety-toe protective Tr. 241, Tr. 320, Tr. 366, Tr. 463–464).
not required to pay for it. For example, footwear should be exempted because it Some commenters expressed the
hearing protectors are required to be was sized to fit a particular employee opinion that the ‘‘personal’’ nature of
provided in general industry and certain types of PPE was not an
construction under the provisions 2 Section 5(a)(1) is the general duty clause of the appropriate basis for exempting the PPE
§ 1910.95 and § 1926.101, respectively. Act, which requires employers to ‘‘furnish to each from an employer payment requirement
Therefore, employers are required to of his employees employment and a place of (Exs. 19, 23, 24A, 24B; Tr. 278, Tr. 337,
employment which are free from recognized
pay for hearing protection. hazards that are causing or are likely to cause death Tr. 342).
On the other hand, dust masks and or serious physical harm to his employees’’ (29 In addition, there were a number of
respirators that an employer allows U.S.C. 654). comments challenging the basis for
exempting safety-toe protective footwear Unlike non-specialty prescription requirement. (OSHA also notes that
and prescription safety eyewear because safety eyewear, the use of safety-toe normal work boots are exempted from
employees can and do use them off the protective footwear is clearly required employer payment under a different
job site (see, e.g., Exs. 22, 24B, 24C; Tr. by OSHA standards when employees provision of the final rule, discussed
198–199, Tr. 264, Tr. 274, Tr. 280, Tr. are exposed to hazards that could result later in this section.)
356–358, Tr. 372–373). NIOSH, ISEA, in foot injuries. However, OSHA has
Finally, the rule essentially retains the
and the United Auto Workers (UAW) historically taken the position that
argued that off-the-job use of PPE safety-toe protective footwear has conditions for the exceptions contained
should not relieve employers of their certain attributes that make it in the proposal, although OSHA has
obligation to pay for PPE and that unreasonable to require employers to tried to simplify them in the regulatory
employers should, in fact, encourage the pay for it in all circumstances, as further text. The rule states that the employer
use of PPE off the jobsite to promote safe discussed in Section XIV, ‘‘Legal is not required to pay for non-specialty
behaviors of their employees (Exs. 12: Authority’’. Safety footwear selection is safety-toe protective footwear (including
130, 230, 23; Tr. 72–73, Tr. 450, Tr. governed by a proper and comfortable steel-toe shoes or steel-toe boots) 3 and
598). fit. It cannot be easily transferred from non-specialty prescription eyewear,
After careful consideration of the one employee to the next. Unlike other provided that the employer permits
comments, OSHA has decided to retain types of safety equipment, the range of such items to be worn off the jobsite.
the exceptions for non-specialty safety- sizes of footwear needed to fit most The term ‘‘non-specialty’’ is used to
toe protective footwear and non- employees would not normally be kept indicate that the footwear and eyewear
specialty prescription safety eyewear in in stock by an employer and it would being exempted is not of a type
the final PPE payment standard. The not be reasonable to expect employers to designed for special use on the job (e.g.,
Agency believes that these two items stock the array and variety of safety-toe rubber steel-toe shoes). This is
have unique characteristics that footwear necessary to properly and consistent with the condition in the
continue to warrant exemption from comfortably fit most individuals. proposed rule that the equipment not be
employer payment. Furthermore, most employees wearing
OSHA believes employers should not ‘‘designed for special use on the job.’’
safety-toe protective footwear spend the
have to pay for non-specialty majority of their time working on their The final rule also incorporates the
prescription safety eyewear for several feet, and thus such footwear is condition from the proposed rule that
reasons. Prescription safety eyewear is particularly difficult to sanitize and requires the employer to pay for PPE
designed for the use of a single reissue to another employee. Other that is not permitted to be used off the
individual. Some of the employees who factors indicate as well that employers job.
require such correction wear contact should not be required to pay for safety- The proposed regulatory text also
lenses, thus allowing them to wear non- toe protective footwear in all contained an employer payment
prescription safety eyewear. circumstances. Employees who work in condition for footwear or eyewear based
Additionally, employers would rarely, if non-specialty safety-toe protective on whether its use at work renders it
ever, be required under an OSHA footwear often wear it to and from work, unsafe for use off the jobsite. The
standard to provide non-specialty just as employees who wear dress shoes Agency is concerned that this condition
prescription safety eyewear to their or other non-safety-toe shoes do. In could be construed as creating a general
employees. The eye protection contrast, employees who wear requirement that contaminated
standards for each affected industry specialized footwear such as boots
(§ 1910.133, § 1915.153, § 1917.91, equipment remain on-site. While this is
incorporating metatarsal protection are
§ 1918.101, and § 1926.102) allow the a prudent practice in many instances,
likely to store this type of safety
employer the option of providing either footwear at work, or carry it back and and a requirement in some substance-
appropriate prescription safety eyewear forth between work and home instead of specific standards, making this a general
or alternate protection that can fit over wearing it. As explained in detail in the requirement under the Parts amended
an employee’s regular prescription Legal Authority section, OSHA does not by this rule is outside the scope of this
glasses, such as goggles or a face shield. believe that Congress intended for rulemaking. OSHA also believes that an
Each standard specifies that the employers to have to pay for shoes of explicit condition for contaminated
alternate protection must not disturb the this type. equipment is unnecessary. The final
adjustment or positioning of the For all of these reasons, OSHA has rule, like the proposal, requires
spectacles. This requirement ensures decided to continue to exempt non- employer payment if the employer does
that an employee’s vision is not altered specialty safety shoes from the employer not permit the employee to take that
by the safety device, which could create payment requirement. OSHA, however, equipment off the jobsite for any reason.
an additional safety concern. While it is also wants to make clear that this Reasons for not permitting removal from
true that non-specialty prescription exemption applies only to non-specialty the jobsite can include a requirement in
safety eyewear may be less cumbersome safety-toe shoes and boots, and not other an OSHA standard that such equipment
than items worn over eyeglasses, types of specialty protective footwear. not be taken off site because it is
because non-specialty prescription Any safety footwear that has additional contaminated or an employer policy
safety eyewear is not the only PPE protection or is more specialized, such that contaminated equipment remain in
option for achieving adequate eye as shoes with non-slip soles used when a special area at the worksite. Because
protection, and is designed for the use stripping floors, or steel-toe rubber of this, OSHA does not believe it is
of a single individual, employers should boots, is subject to the employer necessary to include a separate
not be required to pay for this payment requirements of this standard. condition related to contaminated PPE
protection. Therefore, OSHA is retaining Put simply, the exempted footwear
in the final rule.
the exemption for non-specialty provides the protection of an ordinary

prescription safety eyewear in the final safety-toe shoe or boot, while footwear 3 The parenthetical phrase ‘‘including steel toe
standard. (Prescription inserts for full- with additional safety attributes beyond shoes or steel-toe boots’’ is included since this
facepiece respirators and diving helmets this (e.g., shoes and boots with special terminology is commonly used in reference to non-
are discussed later.) soles) fall under the employer payment specialty safety-toe protective footwear.
2. Everyday Work Clothing and citing the same reasons given above for other items. The following discussion
Weather-Related Items eliminating the exception for non- deals with each of these items,
In the regulatory text of the final rule, specialty safety-toe protective footwear, including prescription eyewear inserts
OSHA is also specifically exempting the submitted information has not in respirators, uniquely personalized
everyday work clothing and ordinary convinced the Agency that employer components of personal protective
clothing/items used solely for protection payment for logging boots is necessary. equipment, welding PPE, metatarsal foot
from the weather. OSHA did not intend This is particularly true given the protection, equipment used by electric
to cover these items in the proposed extensive rulemaking record developed utility employees, and fabric or leather
rule. A number of commenters to the in support of the exemption during the work gloves.
rulemaking record, however, questioned rulemaking for the logging standard.
1. Prescription Eyewear Inserts in
whether these items would be covered In addition to the provisions of the
Respirators
and requested that OSHA clarify its final rule clarifying the PPE that is not
position (See, e.g., Exs. 45: 28, 48; 46: subject to the employer payment Issue eight of the preamble to the
44; 12: 16, 55, 129). OSHA has requirement, OSHA has added a proposed PPE payment standard asked
determined that additional clarity was regulatory note to each of the affected for comment on specialized respirator
needed in the regulatory text regarding standards to make it clear that when the inserts, as follows:
payment for everyday clothing and provisions of another OSHA standard Full-facepiece respirators present a unique
ordinary clothing used solely for specify whether or not the employer problem for employees who need
protection from weather and has must pay for specific equipment, the prescription glasses. The temples of the
therefore made these exceptions explicit payment provisions of that standard prescription glasses break the face-to-face
shall prevail. This approach provides piece seal and greatly reduce the protection
in the final regulatory text. afforded by the respirator. Special glasses
As explained in the Legal Authority for Agency determinations in future
rulemakings that certain PPE should be and mounts inside the facepiece of the
section, OSHA does not believe that respirator are sometimes used to provide an
Congress intended for employers to specifically included or excluded from
adequate seal. Because of this special
have to pay for everyday clothing and the PPE payment rule. situation, OSHA believes that it is
ordinary clothing used solely for Table V–1 provides examples of PPE appropriate for the employer to provide and
protection from the weather. While and other items that an employer is not pay for the special-use prescription glasses
serving a protective function in certain required to pay for under the specific used inside the respirator facepiece. Is it
circumstances, employees must wear exceptions included in the standard. common industry practice for employers to
This table is intended to assist in pay for these special glasses? What is the
such clothing to work regardless of the typical cost for providing ‘‘insert-type’’
hazards found. OSHA is exercising its identifying items exempt from the
employer payment requirement. prescription glasses inside full-facepiece
discretion through this rulemaking to respirators? (64 FR 15416).
exempt jeans, long sleeve shirts, winter However, it should not be construed to
coats, etc., from the employer payment be an all-inclusive list. OSHA received no substantive
requirement. As stated, this is consistent adverse comment on employer payment
with OSHA’s intent in the proposal and TABLE V–1.—EXAMPLES OF PPE AND for this equipment. Commenters offered
is also supported by the rulemaking OTHER ITEMS EXEMPTED FROM THE a number of observations and
record. A number of commenters stated EMPLOYER PAYMENT REQUIRE- recommendations, however, including
that OSHA should exempt these items MENTS that the employer should pay for all
from the employer payment requirement components needed to ensure the
(See, e.g., Exs. 12: 10, 16, 28, 55, 117, Non-specialty safety-toe protective footwear effectiveness of the PPE (Ex. 12: 134,
129, 210, 222). (e.g., steel-toe shoes/boots). 190, 218), the eyewear is part of the
Thus, OSHA is not requiring Non-specialty prescription safety eyewear. respirator (12: 134, 218), and the
employers to pay for everyday clothing Sunglasses/sunscreen. employer should pay for lenses and
Sturdy work shoes. hardware, but the employee should pay
even though they may require their Lineman’s boots.
employees to use such everyday for the doctor’s exam (Ex. 12: 51). The
Ordinary cold weather gear (coats, parkas, ISEA noted that full-facepiece respirator
clothing items such as long pants or cold weather gloves, winter boots).
long-sleeve shirts, and even though they inserts:
Logging boots required under
may have some protective value. § 1910.266(d)(1)(v). [s]hould be supplied and paid for by the
Similarly, employees who work Ordinary rain gear. employer * * * A full-facepiece respirator
outdoors (e.g., construction work) will Back belts. insert costs roughly $50–$100, depending on
normally have weather-related gear to Long sleeve shirts. the prescription (single, bifocal, etc.), the
Long pants. material (polycarbonate, etc.), and the fitting-
protect themselves from the elements.
Dust mask/respirators used under the vol- delivery system used (Ex. 12: 230).
This gear is also exempt from the untary use provisions in § 1910.134.
employer payment requirement. Additional comment on respirator
inserts was provided by the ASSE,
3. Logging Boots and Items in Other C. Other Items Raised in the which stated that: ‘‘[m]ost prescription
OSHA Standards Rulemaking Record safety eyewear will fit into a full-face
Under the final rule, the employer If a particular item of PPE is used to respirator with the appropriate mounts.
would not have to pay for logging boots comply with OSHA standards, and does We are aware of some circumstances
required in 29 CFR 1910.266(d)(1)(v) (61 not fall under the PPE standard’s when an additional specific frame had
FR 15403). In the final logging standard, exceptions, then this PPE standard to be ordered to work with such a
OSHA concluded that logging boots requires the employer to provide the facemask. Most of our members
should be exempt from an employer item to his or her employees at no cost commented that from their experience,
payment. The final standard recognizes to the employees. OSHA solicited most employers would pay for the
this exemption, as did the proposed comment on several items in the additional product in such a situation’’
rule. While some commenters suggested preamble to the proposed standard, and (Ex. 12: 110). Blais Consulting offered a
the exception should be eliminated, commenters raised issues with several somewhat different view, stating that:
Full face respirators do present a problem [e]mployers have an obligation to properly custom insoles for safety shoes which are not
with spectacles as the temples frequently will protect employees from all occupational required in writing by a physician as a
break the face-to-face piece seal and greatly hazards. If uniquely personalized ‘‘reasonable accommodation’’ to performing
reduce the protection afforded by the components of PPE are protective in nature- the assigned job (Ex. 12: 3).
respirator. * * * I concur with OSHA that it such as winter liners for hardhats-then
is appropriate for the employer to provide employers should pay for them. Employers The question of when to require
and pay for the special-use prescription should pay for custom prescription lens employer payment for PPE components
glasses to use inside the respirator face piece inserts used under a welding helmet because and inserts is not easy to resolve due to
as the spectacle must be worn to fulfill the safety glasses should be worn when welding. their wide variety. However, the
requirements for the 29 CFR 1910.134 It is not functional to wear street prescription comments of ORC suggest a reasonable
Respiratory Protection Standard and is not of glasses, a protective goggle and a welding solution to the problem. ORC
a street-wear type spectacle (Ex. 12: 233). helmet. All equipment necessary for commented:
employees to adequately perform their jobs
Dow noted that: should be paid for by the employer (Ex. 12: The employer should be required to
[w]here full face respirators are required to be 230). provide and pay for PPE that is adequate to
worn on the job, it is reasonable for the The UFCW raised the issue of shoe inserts, protect an employee from the workplace
employer to pay for prescription glasses to be remarking that: hazards identified. If a personalized
worn. OSHA allows the use of contact lenses Shoe inserts, as personal protective component is necessary in order for the PPE
when a full face respirator is worn. Dow does equipment, are a control method for to provide adequate protection, it is not
not believe that this regulation should be alleviating the hazard of standing for something that is typically worn or used off
construed to require the employer provide prolonged periods of time on hard surfaces. the worksite and meets the criteria proposed
contact lenses for employees who also The United Auto Workers, through [by ORC] for exception of personal items, it
happen to wear respirators on the job (Ex. 12: workplace surveys, has recently documented should be the employer’s responsibility to
129). the need for shoe inserts for their members provide it and pay for it. However, if the
who work in the ‘‘big three’’ auto plants and protection afforded by the PPE is not
Corrective eyewear is necessary for stand all day. In fact, collective bargaining compromised by not providing the
the employee to see clearly in order to agreement language requires that the personalized component, the employer
safely perform his or her job, yet not all employer provide inserts, free of charge, to should be under no obligation to pay for the
employees who require vision workers who need them. personalized component (Ex. 12: 222).
correction and use full facepiece Anti-fatigue mats are common in retail
OSHA has decided to adopt the basic
food stores, and in some manufacturing
respirators wear contact lenses. A major plants. These are provided by the employer approach put forward by ORC. If the
concern with a full facepiece respirator to address this hazard, an acknowledgment component is needed for the PPE to
is that the seal between the employee’s on the part of the employer that this hazard adequately protect the employee from
face and the respirator must not leak. If does exist. As anti-fatigue mats are provided the workplace hazard the PPE is
it does, then the respirator will not at no cost to provide some support and relief designed to address, the employer must
provide the intended protection. of the lower extremities and lower back, so pay for it, provided the PPE does not fall
Therefore, items that pass under the should shoe inserts. In fact, shoe inserts can within one of the exceptions listed in
seal, such as the temple pieces of be used where anti-fatigue mats cannot, such the final rule. For example, if
prescription glasses, break the face to as in locations in meat and poultry plants
prescription lenses are needed so an
where they are impractical or a sanitation
facepiece seal. If the employee’s problem. Shoe inserts are also more practical employee can wear a diving helmet to
prescription glasses cannot be fitted into for jobs which may require some walking or do his or her job, then the prescription
the respirator without compromising the moving from one location to another, as the lenses must be provided at no cost by
seal, then there is no alternative. Special mats are stationary and do not move with the the employer. This approach is the same
lenses will be needed to protect the worker (Ex. 41). as that taken in the standard for
employee, and they must be provided at Others stated that the employer prescription lens inserts for full
no cost to that employee. OSHA has should pay up to the basic cost of the facepiece respirators.
determined that when special-use minimum PPE (See, e.g., Ex. 12: 228); However, if the component is not
prescription lenses must be used or the employer should pay if it is PPE needed for the PPE to provide adequate
mounted inside the respirator facepiece, (See, e.g., Ex. 12: 32); and the employer protection, then the employer would not
employers must pay for the lenses / should pay ‘‘[i]f it cannot stand on its be required to pay for the component.
inserts. own use’’ (Ex. 12: 52). For example, employers would not be
Still other commenters raised items or required to pay for shoe inserts to
2. Components of Personal Protective
situations where they believed the prevent fatigue because the inserts are
Equipment
employee, not the employer, should pay not needed for the PPE to perform as
Issue ten of the preamble to the for the equipment. The reasons behind designed. In addition, if the PPE in
proposed PPE payment standard asked these comments include: The employee which the component is placed is
for comment on PPE components, such should pay if the item is personal in otherwise exempted from the final rule,
as shoe inserts, head coverings used nature, such as shoe inserts (Ex. 12: 3); the employer is not required to pay for
under welding helmets and custom the employee should pay because this the component. Thus, employers would
prescription lens inserts worn under a equipment is too personal (Ex. 12: 19); not be required to pay for cold weather
welding helmet or a diving helmet (64 and employers should not be required to inserts worn under raincoats, because
FR 15416). pay for equipment that is personal in raincoats are otherwise exempt from
A number of commenters supported nature and goes beyond what is required employer payment.
employer payment for components in for employee safety (Ex. 12: 65). Douglas OSHA also notes that if the
some circumstances. Various Battery remarked that: component is needed for the PPE to fit
commenters suggested that employers the employee properly, then the
In a related issue, employers should have
should pay because the only function of the option of electing not to provide or
employer is required to provide the item
the component is to protect the reimburse employees for PPE which is at no cost to the employee. The various
employee from workplace hazards (See, personal in nature. An example of ancillary general PPE standards require the
e.g., Exs. 12: 190, 218). The ISEA ‘‘equipment’’ which is personal in nature, but employer to provide properly fitting
remarked that: not required for safety, would include PPE, and if it does not fit properly it will
not have the protective value it was The Specialty Steel Industry of North metatarsal guards be banned, asserting
designed to provide. Therefore, payment America (SSINA) remarked: that ‘‘The removable metatarsal guard
for items needed to make PPE fit SSINA member companies are committed does not provide the needed protection
properly is required. to employee safety and health, and provide that is provided by the built-in
Finally, although it may seem self- and pay for all types of personal protective metatarsal guard that was designed for
evident, personalized components or equipment (‘‘PPE’’). Although SSINA the specific shoe that it was attached
add-ons that do not affect safety are not supports the proposed rule in general, the to.’’ (Tr. 378–379).
covered by the final standard. For association is concerned about the absence of While OSHA appreciates the
example, items chosen for aesthetic a provision allowing payment terms for comment from the USWU, this
features (e.g., logos, color, style) that metatarsal shoes to be negotiated through rulemaking is limited to issues of PPE
have no additional safety purpose do collective bargaining agreements. Because of payment, and not the adequacy of
the importance of these shoes to specialty
not fall under the employer payment certain types of PPE. OSHA’s long-
steel workers, the payment terms for this type
requirements. of protective footwear are generally specified standing policy is that when conditions
in collective bargaining agreements at the workplace require metatarsal
3. Metatarsal Protection
negotiated with labor unions. SSINA believes protection, adequate protection can be
While the non-specialized safety-toe that the proposed PPE rule prohibits this achieved through the proper use of
protective footwear that is exempted process (12: 1498). metatarsal guards. If the employer
from the PPE payment requirements requires employees to wear metatarsal
contains a protective device for the toes, Consolidated Edison Company of
shoes or boots, the employer is required
metatarsal protection is designed to New York, Inc. asked OSHA to clarify
to pay for them. However, the final
protect the top of the foot from the toes in the final rule that employers are not
standard stipulates that when the
to the ankle over the instep of the foot. required to pay for shoes with
employer provides metatarsal guards
This protection is required by the OSHA metatarsal protection if the employer
and allows the employee, at his or her
standards when there is a potential for offers, free of charge, foot guards to be
request, to use shoes or boots with built-
injury to that part of the foot from worn over regular safety footwear (Ex.
in metatarsal protection, the employer is
impact or compression hazards that 12: 155).
not required to pay for the metatarsal
could occur, for example, from handling In the final standard, OSHA has
shoes or boots. In this circumstance, the
heavy pipes, or similar activities where decided not to exempt metatarsal
final standard does not prohibit
loads could drop on or roll over an protection from the PPE payment employers from contributing to the cost
employee’s feet. Metatarsal protection is provisions. OSHA disagrees with those of metatarsal shoes or boots should they
available both as an integrated part of commenters who suggested that choose to do so. Some employers
the footwear, and as a guard that can be metatarsal protection is ubiquitous and currently offer their employees a choice
attached to a shoe or boot to provide is frequently worn by employees away between using a metatarsal guard
protection. from the worksite. Several hearing provided and paid for by the employer
OSHA did not exempt metatarsal participants testified that this footwear or a metatarsal shoe or boot with some
protection from the employer payment is not normally worn off site (Tr. 203; portion of the cost of the shoe or boot
requirement in the proposed rule. In its 349; 390–391). Specifically, Jacqueline paid for by the employer, essentially
introductory remarks at the informal Nowell of the UFCW referenced a court establishing an allowance system. This
public hearing, OSHA explained that decision requiring the employer to pay practice is not prohibited by the rule, as
‘‘* * * the proposed exception would for metatarsal support boots. The judge described in the Acceptable Methods of
not apply to metatarsal protection, based his finding on testimony that ‘‘99 Payment section below.
metatarsal guards or protective footwear percent of the employees use their boots
exclusively for work’’ (Tr. 203). When 4. Welding Leathers
that incorporates metatarsal protection,
or special cut-resistant footwear because asked about his experiences with Issue six of the preamble to the
these kinds of footwear are not generally employees wearing shoes with proposed PPE payment standard
used off the worksite and employers metatarsal guards off site, William requested comment on PPE employers
often reissue metatarsal guards and cut- Kojola of the AFL–CIO testified, ‘‘I’m provide to welders to protect them from
resistant footwear to subsequent not aware of any, in my own experience welding hazards, such as molten metal.
employees’’ (Tr. 19–20). aware of any circumstance where a Specifically, the Agency asked: ‘‘The
A number of commenters suggested worker would actually use that piece of proposal covers protective equipment
that metatarsal shoes should be equipment offsite’’ (Tr. 349). Mr. Kajola and personal protective equipment used
exempted from the employer payment continued that this was his experience in welding, including protective gloves.
requirement (See, e.g., Exs. 12: 66, 149, regardless of whether the guard was Does welding PPE create any unique
155, 222, 235). Caterpillar, Inc. offered built into the footwear or put on as a problems on the PPE payment issue?
several reasons why metatarsal shoes separate piece. After considering the Does the employee usually pay for
should be exempted, stating: comments, OSHA remains convinced welding PPE?’’ (64 FR 15416).
that metatarsal protection is a A number of commenters, many from
Virtually all metatarsal shoes with integral the shipyard industry, recommended
guards are personal in nature and belong to
specialized form of foot protection. In
an individual employee. * * * OSHA states addition, OSHA has historically not that OSHA exempt welding PPE from
a belief that there is little statutory exempted metatarsal protection from an the employer payment requirement
justification for requiring employers to pay employer payment requirement. (See, e.g., Exs. 7, 29, 32, 39, 65, 112,
for personal protective equipment if it is used In the final standard, however, OSHA 228; 45: 52; 46: 32) indicating that it has
away from the workplace and if three is making clear that employers may been customary for welders in some
proposed conditions are met. The third provide metatarsal guards to their industries to provide their own PPE. For
condition contains an assumption that if ‘the
employees to protect against hazards example, a representative from the

footwear has built-in metatarsal guards as Shipbuilders Council of America (SCA)
well as safety-toes, it could not be worn off- and are not required to provide
site’, which is not a valid assumption. metatarsal protection that is integrated stated that:
Employees do wear their metatarsal shoes in the shoe. The United Steelworkers Tools of the trade for welding operations,
off-site (Ex. 12: 66). Union recommended that removable such as face shields/goggles, fire resistant
shirts/jackets, sleeves and leather gloves have that it is appropriate for the work to be that meet the same three conditions as
predominantly been provided by the performed, then the employer is not those proposed for safety-toe shoes. The
employee because of the equipment’s required to provide the PPE at no cost recommendation is based on the fact
personal nature. The industry considers these to that employee. that such PPE is also often allowed to
to be tools of the trade because it is neither
feasible for a different employee to wear the
be used off-site by employees (Ex. 12:
5. Non-Specialty Fabric or Leather Work
welders’ gloves and leathers each day for 171).
Gloves In the final standard, OSHA is
hygienic reasons, nor is it feasible that upon
resigning from the position that an employee Many commenters stated that non- requiring employer payment for work
will leave the leathers behind to be worn by specialty fabric or leather work gloves gloves when they are used for protection
another individual (Ex. 46: 32). should be excepted from the employer against workplace hazards. Thus, when
payment requirement (See, e.g., Exs. 12: used as PPE—to protect employees from
Other commenters stated that an
6, 7, 17, 19, 29, 55, 68, 91, 109, 111, 112, such hazards as lacerations, abrasions,
exception for welding PPE was not
129, 163, 171, 172, 183, 217, 221, 222). and chemicals—employers must
needed (Ex. 12: 9, 17, 32, 134, 172, 190,
Southwestern Bell (Ex. 12: 6) agreed that provide them at no cost. This is
191, 218, 233; 45: 27). Shell Offshore,
more specialized gloves should be consistent with the position OSHA has
Inc. stated that ‘‘* * * [a] problem
provided and paid for by the employer, taken in the past with this important
could result if employees were expected
but stated that ‘‘[w]e feel that everyday form of protection.
to pay for welding PPE. The problem Furthermore, OSHA does not believe
work gloves made of fabric and/or
being that by requiring employees to that gloves are similar to the other
leather do meet those conditions
pay for PPE may discourage use of PPE, exempted items in the standard. Gloves
because they can be worn off the job;
or result in use of ineffective PPE’’ (Ex. may be distinguished from general work
they are not used in a manner that
12: 9). The International Union of shoes and boots. Gloves are normally
renders them unsafe for work off the job;
Operating Engineers (IUOE) remarked manufactured in only a few sizes. While
and they are not designed for special
that they ‘‘* * * do not believe that gloves worn for a long period by one
use. Thus, we consider them to be
there are unique problems relating to employee may become soiled, abraded,
personal in nature’’ (Ex. 12: 6). The
welding PPE. Workers do not generally and so forth, they generally are not
NAHB added that ‘‘Many types of gloves
pay for welding PPE. All welding PPE considered to be as highly personal in
can be used for personal use. Unless it’s
should be supplied by employers’’ (12: nature or in the same manner as
a very special glove, such as welding or
134). The National Association of Home footwear. Wear patterns of footwear
wire-mesh gloves, these should be
Builders (NAHB) stated that ‘‘Employers differ between individuals resulting in a
considered as an exception’’ (Ex. 12:
customarily pay for the PPE that is fit that may not conform to another
212).
required for welding, including gloves, individual’s foot or gait. Gloves,
The Stevedoring Services of America
aprons, and face shields’’ (Ex. 12: 212). however, can normally be worn by
(SSA) and the National Maritime Safety
Testimony of members of the Maritime another employee. Finally, as opposed
Association (NMSA) remarked that
Advisory Committee for Occupational to work boots and shoes, many forms of
regular work gloves meet the intent of
Safety and Health (MACOSH) also gloves can be laundered and sanitized
the proposed exemptions because they
indicated that other maritime employers and used by more than one employee.
are purchased by size, are available in
provide and pay for welding PPE;
a variety of styles and are frequently 6. Electrical PPE
consequently, MACOSH declined to
worn off the job (Exs. 12: 17, 172). They
make a recommendation to OSHA on Table 1 of the preamble to the
also commented that most regular work
whether such PPE should be exempted proposal listed a number of PPE items
gloves cannot be cleaned and sterilized
from a payment requirement (69 FR required by OSHA standards, including
and therefore cannot be worn by more
41223). flame resistant jackets and pants (64 FR
than one employee (Id.). Specifically
OSHA has decided not to exempt 15408). As a result, several comments
they stated that ‘‘[r]egular work gloves,
welding equipment from the employer were received regarding the issue of
like safety shoes, certainly meet the
payment provisions of the final prohibited clothing in OSHA’s power
intent of the Secretary’s interpretation’’
standard. All of the equipment generation and transmission standard at
and continued with the reasoning that:
mentioned is clearly PPE, and the § 1910.269(l)(6). That standard
comments are inconsistent as to 1. Regular work gloves are purchased by specifically requires the employer to
whether or not this equipment has any size. ensure that each employee who is
2. Regular work gloves are available in a
special qualities that would warrant an variety of styles.
exposed to the hazards of flames or
exception. The most common concern is 3. Regular work gloves are frequently worn electric arcs does not wear clothing that,
that welders in some industries have off the job. when exposed to flames or electric arcs,
customarily supplied their own 4. It is not feasible that each day an could increase the extent of injury that
personal protective equipment. OSHA employee wears regular work gloves that would be sustained by the employee. It
has determined that this is not an have been worn by another employee. further notes that clothing made from
adequate basis to exempt PPE. To the 5. It is not feasible that upon resigning acetate, nylon, polyester, or rayon is
extent that these individuals are from a position that an employee leave prohibited unless the employer can
regular work gloves behind for another
independent contractors and not demonstrate that the fabric has been
employee to wear.
employees covered by the OSH Act, the 6. It is almost impossible to clean and treated to withstand the conditions that
standard does not apply to them. sterilize most regular work gloves that have may be encountered or that the clothing
Further, as noted in the employee- been previously worn. is worn in a manner that eliminates the
owned PPE section of this preamble, 7. The cost of issuing regular work gloves hazard. One method of meeting the
employers may allow employees to on a daily basis to thousands of dock workers requirements of § 1910.269, but not the
bring PPE they already own to work, nationwide would be extremely expensive to only method, is for employers to require
and are not required to reimburse the the employer (Id.). their employees to wear flame resistant
employee for that PPE. Thus, if a welder The American Trucking Association clothing (FR clothing). This clothing is
voluntarily brings his or her own PPE to recommended that OSHA exempt from specifically designed to protect
the worksite, and the employer ensures employer payment non-specialty gloves employees exposed to various levels of
heat energy from sustaining severe burn on this issue (70 FR 34866–34870). If into four hazard/risk classes. OSHA
injuries in areas covered by the clothing. OSHA determines in that rulemaking wants to make clear that this equipment
A number of comments were received that FR clothing is required, it will then would only be covered by the final rule
from electric utility employers, who become subject to the PPE payment in those instances where it is required
stated that FR clothing is not PPE (See, provisions of this rule, unless the final by OSHA standards.
e.g., Exs. 12: 107, 114, 133, 150, 183, § 1910.269 and Part 1926 Subpart V The first item noted by these
201, 206, 221), that OSHA should standards specifically exempt FR commenters is fire retardant clothing, as
exclude FR clothing from employer clothing from employer payment. discussed above. The second item
payment requirements (See, e.g., Exs. Several electrical contracting and includes a variety of PPE, including
12: 16, 133), and that requiring power companies also recommended hard hats, safety glasses or goggles, arc-
employers to pay for FR clothing would exemptions for certain pole climbing rated face shields, hearing protection,
conflict with previous interpretations by equipment (See, e.g., 12: 16, 38, 144, leather gloves, and leather work shoes.
OSHA (See, e.g., Exs. 12: 114, 133, 150, 161, 183, 206, 221; 46: 49). For example, Within the second item, except for
206, 221). In a representative comment, the National Electrical Contractors leather work shoes, these items are
the Edison Electric Institute (EEI) Association (NECA) commented that required by § 1910.335 and other OSHA
remarked: [b]ody belts and straps for climbing poles and
standards (depending on the exposures
EEI is also concerned that compliance towers, climbing hooks, flame resistant encountered) and are subject to the PPE
officers may inadvertently classify the clothing, and personal apparel of all payment provisions. Item three includes
apparel/clothing requirement under description and usages should also be voltage rated gloves used to handle
§ 1910.269(l)(6) of the Electric Power exempted from the final rule for the electrically charged lines. This is clearly
Generation, Transmission and Distribution contracting electric power industry. These a specialized item that employees are
standard as personal protective equipment. vary in design and material, have always not required to purchase. As required by
Classification of apparel/clothing as PPE been very much subject to personal § 1910.137, employers must inspect and
would be inconsistent with OSHA’s current preference and are not universally
transferable from employee to employee’’
test the gloves at regular intervals to
position stated in two interpretation
letters. * * * In both of these interpretation (Ex. 12: 16). ensure their continued integrity, and
letters it is stated that the apparel standard they are so critical to the protection of
In response to OSHA’s request for employees performing this work that
is not a PPE requirement. * * * EEI requests
that OSHA state in the preamble of the final comment on how a general requirement leather gloves are worn over them to
standard that the apparel/clothing required for employer payment for PPE should prevent abrasions and holes that could
under § 1910.269(l)(6) of the Electric Power address the types of PPE that are compromise their integrity. Therefore,
Generation, Transmission and Distribution typically supplied by the employee, employers are required to provide them
standard is not personal protective taken from job site to job site or from at no cost to their employees. The fourth
equipment. This statement would avoid employer to employer, (69 FR 41221
disagreements of interpretations after the rule item includes insulated hand tools such
(July 8, 2004)), a number of electrical as pliers, screwdrivers, diagonal cutters
is finalized (Ex. 12: 150).
contractors submitted identical and wire strippers. As discussed
Duke Energy suggested that OSHA comments suggesting that several types previously, the Agency has concluded
‘‘[c]learly specify that flame retardant of electrical safety equipment should be that electrically insulated tools, while
apparel is not considered personal exempted from employer payment (See, not considered to be PPE for the
protective equipment’’ (Ex. 12: 133). e.g., Exs. 45: 6, 7, 8, 9, 10, 11, 12, 14, purpose of this standard, are a
OSHA’s existing clothing requirement 15, 16, 19, 20, 22, 23, 24, 29, 31, 37, 38, protective control measure and the
in § 1910.269 does not require 41, 44, 45, 46, 47; 46: 21, 22, 23, 24, 25, employer must pay for them.
employers to protect employees from 26, 27, 28, 29). They remarked that Table V–2 provides examples of PPE
electric arcs through the use of flame- employers in general should pay for PPE items that an employer is required to
resistant clothing. It simply requires that used by their employees, but provide at no cost to employees under
an employee’s clothing do no greater recommended OSHA provide the final PPE payment standard. As with
harm. The use of certain heavy-weight exemptions for the following items: Table V–1, this table is not an
natural fiber materials, such as cotton, is 1. Protective clothing as listed in NFPA exhaustive list of PPE that employers
allowed where the employer can assure 70E Table 130.7 (C)(10) for all Hazard/Risk must provide to their employees at no
that the clothing will not contribute to Categories #2 and lower. cost.
injury to the employee. Thus, the 2. Protective equipment as listed in NFPA
clothing requirement in § 1910.269 does 70E Table 130.7 C (10) for all Hazard/Risk TABLE V–2.—EXAMPLES OF PPE FOR
not mandate employers provide any Categories #2 and lower. (Except for the
equipment listed in FR Protective equipment WHICH EMPLOYER PAYMENT IS RE-
particular type of PPE to their QUIRED
subpart ‘‘e’’).
employees and the payment 3. Voltage rated gloves required for work in [If used to comply with an OSHA standard]
requirement in this final rule would not NFPA 70E Hazard/Risk Categories #2 and
apply to clothing permitted by lower. Metatarsal foot protection.
§ 1910.269. 4. Tools the employee is required to Special boots for longshoremen working logs.
It should be noted that the issue of purchase, by an agreement between the Rubber boots with steel toes.
whether FR clothing should be required employer and the employee, that are required Shoe covers—toe caps and metatarsal
by § 1910.269 is currently being by NFPA 70E, Hazard/Risk Categories #2 and guards.
considered by the Agency in a separate lower, to be voltage rated. Non-prescription eye protection.
rulemaking to revise the electric power This particular equipment was Prescription eyewear inserts/lenses for full
generation, transmission and included in a table in the National Fire face respirators.
distribution standard (70 FR 34822– Protection Association (NFPA) 70E Prescription eyewear inserts/lenses for weld-
ing and diving helmets.
34980, June 15, 2005). The preamble Electrical Safety Code. Table Goggles.
discussion for the proposed § 1910.269 130.7(C)(9)(a) of the Electrical Safety Face shields.
revision included a full discussion of FR Code lists equipment that is to be used Laser safety goggles.
clothing in the electric utility industry when working on various types of Fire fighting PPE (helmet, gloves, boots,
and asked for specific public comment electrical systems, which are classified proximity suits, full gear).
TABLE V–2.—EXAMPLES OF PPE FOR employer may ask the employee to pay 1. Clarity
WHICH EMPLOYER PAYMENT IS RE- for replacement: Several commenters raised issues
QUIRED—Continued The proposed requirement would also about the clarity of OSHA’s position in
[If used to comply with an OSHA standard] make the employer responsible to provide,
and pay for, replacement PPE when the the proposed rule on replacement PPE.
original PPE wears out from normal wear and The majority of the comments on the
Hard hat.
Hearing protection. tear or in the event of occasional loss or issue of employer payment for
Welding PPE. accidental damage by the employee. replacement PPE asked OSHA to clarify
Items used in medical/laboratory settings to However, if an employee regularly and with its statements in the proposal as to
protect from exposure to infectious agents unreasonable frequency loses or damages the when employers would and would not
(Aprons, lab coats, goggles, disposable PPE, the employer may request that the be required to pay for replacement PPE.
gloves, shoe covers, etc). employee pay for the replacement PPE (64 FR
15415).
The comments received included a
Non-specialty gloves: number from employers who expressed
• Payment is required if they are PPE, In these discussions, OSHA attempted concern that they would be paying for
i.e. for protection from dermatitis, se- to set the parameters for when the an endless stream of PPE. These
vere cuts/abrasions. employer would be responsible for
• Payment is not required if they are commenters noted the uncertainty of
paying for replacement PPE (e.g., when determining the meaning of ‘‘normal
only for keeping clean or for cold
the PPE wears out from ‘‘normal wear wear and tear’’ and ‘‘occasional loss’’ in
weather (with no safety or health con-
sideration). and tear,’’ ‘‘occasional loss,’’ etc.) and the context of the wide variety of PPE
Rubber sleeves. when the employer may request that the that is required and used in various
Aluminized gloves. employee pay for the replacement (e.g., industries.
Chemical resistant gloves/aprons/clothing. ‘‘[r]egularly and with unreasonable
Barrier creams (unless used solely for weath- frequency loses or damages the PPE’’). A number of commenters suggested
er-related protection). This position was also consistent with that OSHA should strictly define
Rubber insulating gloves. the past positions OSHA has taken on ‘‘regular loss’’ or ‘‘occasional loss’’ that
Mesh cut proof gloves, mesh or leather the issue of employer payment for were used in the preamble to the
aprons. replacement PPE. For example, OSHA proposal, in the final rule by specifying
SCBA, atmosphere-supplying respirators (es-
determined that the employer must bear it as two, three, or four occurrences
cape only). (See, e.g., Exs. 12: 14, 17, 41, 62, 87,
Respiratory protection. the cost of replacing worn out hearing
protectors required under the 121, 143, 167, 168, 212, 242). BP-Amoco
Fall protection. recommended that ‘‘The particulars of
Ladder safety device belts. occupational noise exposure standard,
Climbing ensembles used by linemen (e.g., 29 CFR 1910.95, but stated its belief that any case of occasional loss or damage
belts and climbing hooks). employers should not have to pay for an are going to be unique to each case, and
Window cleaners safety straps. unlimited supply of protectors or bear the resolution of who should be
Personal flotation devices (life jacket). the expense in cases where an employee responsible to pay is best left up to the
Encapsulating chemical protective suits. has been irresponsible (46 FR 4078, contractual agreement or grievance
Reflective work vests.
4153–4154 (Jan. 16, 1981)). procedures in place between the
Bump caps. employer and employee group. For
While many commenters supported a
general requirement that employers pay OSHA to attempt to regulate this issue
D. Replacement PPE for replacement PPE (See, e.g., Exs. 12: would require OSHA to define what is
Replacing PPE that is no longer 9, 51, 110, 113, 116, 134, 141, 152, 188, occasional loss and when employee
functional is crucial to employee safety 190, 222, 230, 233; Tr. 326, 376, 600, conduct becomes negligent—something
and health. OSHA finds that timely 631), there were two major issues raised that is not possible or desirable’’ (Ex. 12:
replacement of PPE is more likely to by commenters regarding OSHA’s 28).
occur when the employer is responsible position in the proposal. First, a The Screenprinting & Graphic
for bearing the cost. OSHA is requiring substantial number of comments in the Imaging Association International
employers to not only pay for the initial rulemaking record suggested that the (SGIA) also questioned the meaning of
issuance of PPE, but also its proposed rule did not clearly set forth the term ‘‘lost’’:
replacement, except when the employee an employer’s obligation to pay for For example, an employee is wearing a pair
has lost or intentionally damaged the replacement PPE. Many commenters of gloves while out on the loading dock as
PPE. urged the Agency to more clearly define a shipment of ink is delivered. As the
In the proposed rule, OSHA did not those instances where an employer must employee reaches for the load coming from
include language in the regulatory text pay for replacement PPE and those the truck, one glove is pulled from the
setting forth an employer’s obligation to instances where it would be appropriate employee’s hand, falls to ground and is
for employees to pay for the PPE. blown away by the wind and cannot be
pay for replacement PPE. However, in found. In this instance, the PPE was not
the preamble to the proposal OSHA Several commenters suggested OSHA damaged, did not show normal wear and
stated: include specific regulatory language to tear, yet requires replacement. The employee
OSHA intends to require employers to pay
address replacement PPE to clarify these was not negligent, but the PPE is lost, and the
for the initial issue of PPE and for issues, rather than simply dealing with employer should be responsible to pay for
replacement PPE that must be replaced due the issue in the preamble (See, e.g., Exs. the replacement. If the same employee,
to normal wear and tear or occasional loss. 12: 3, 58, 188, 212; 46: 43). Second, however, were to have placed the gloves
Only in the rare case involving an employee commenters were concerned that down on a table, walked off, then came back
who regularly fails to bring employer- OSHA’s rule would prevent them from to find them missing, this can be seen as
supplied PPE to the job-site, or who regularly enforcing legitimate workplace rules neglect and the employee pays for the
loses the equipment, would the employer be replacement. Although these two examples
regarding employee misuse and damage are open for discussion, it shows that each
permitted to require the employee to pay for to PPE. OSHA addresses these issues
replacement PPE (64 FR 15414). worksite needs to make specific policies for
below. OSHA also addresses comments what will constitute a lost item, and how to
OSHA also noted that if an employee in the record questioning acceptable safe guard against abuse and negligence (Ex.
misuses or damages the PPE, the replacement schedules and allowances. 12–116, p. 2).
Other commenters expressed concern to pay for replacement PPE, following initial issue of PPE, the employer is not
about the proposed language addressing the criteria in OSHA’s existing required to pay for the replacement of
the duty to replace PPE that has been standards governing when PPE must be that PPE. However, if the working
lost or damaged beyond ‘‘normal wear replaced, except when the employee conditions have changed such that the
and tear.’’ For example, ORC, Inc. loses or intentionally damages the PPE. PPE the employee had provided at his
recommended that: By excepting employer payment for or her cost is now required under OSHA
How an employer deals with replacement
all ‘‘lost’’ PPE, OSHA hopes to avoid the requirements, then the employer is
of PPE that is lost or damaged by employees confusion caused by using the terms required to pay for the replacement PPE
beyond what would be expected through ‘‘occasional loss’’ in the proposal. it will have its employees use to comply
normal wear and tear, should be left to the ‘‘Occasional loss’’ lacks reasonable with those requirements. When the PPE
employer’s discretion’’ (Ex. 12: 222). precision given the universe of the employee already owns is adequate
In a comment that was echoed by circumstances in which a wide variety in these circumstances, the employee
approximately 60 associations of home of PPE may be lost either at work or off volunteers to use the PPE, and the
builders, the Ohio Home Builders of the worksite. For these reasons, this employer allows the employee to use it
Association stated that: rule does not require employers to bear in place of the PPE the employer must
the cost of replacing PPE that the now provide, then the employer is not
The proposed revision to the PPE standard employee has lost, even if it is a single
does not allow employers much flexibility in required to reimburse the employee.
how they manage safety and health on their
instance. In addition, the PPE may be This is the same exception provided in
jobsites. OSHA would require each employer considered ‘‘lost’’ if the employee comes the regulatory provision addressing
to pay for all PPE used by employees with to work without the PPE that has been employee-owned PPE. Similarly, as far
very few exceptions. Only in the rare case issued to him or her. as PPE that an employee has provided
involving an employee who regularly fails to The employer is free to develop and at his or her own cost, once that PPE is
bring employer-supplied PPE to the job-site, implement workplace rules to ensure no longer adequate, the employer must
or who regularly loses the equipment, would that employees have and use the PPE
the employer be permitted to require the pay for PPE that is required to comply
the employer has provided at no cost. with the rule, unless the employee
employee to pay for replacement PPE. How For example, an employer may require
are we to define ‘‘regularly’’ in these voluntarily decides to provide and pay
scenarios? (Ex. 12–34).
employees to keep their PPE in a for his or her own replacement PPE
secured locker, or turn in the PPE at the (which may occur if the employee wants
Furthermore, a large number of end of the shift. Alternatively,
commenters recommended OSHA personalized or upgraded PPE). As with
employers may enter an agreement with PPE owned by a newly hired employee,
include regulatory language in the final the employee allowing the employee to
rule to clearly articulate when an the employer is prohibited from
take the PPE that the employer has requiring employees to provide their
employer could require the employee to provided at no cost to the employee off
replace the PPE at his or her own cost own PPE. The same replacement issues
of the job site to use at home or for other
(See, e.g., Exs. 12: 3, 21, 51, 58, 68, 79, may arise if an employee no longer
employers. The agreement may stipulate
99, 101, 217; 46: 43). volunteers his or her own PPE for
that the employee is responsible for any
OSHA has carefully considered these workplace use, and the same policies
loss of the PPE while it is off of the job
comments and has made changes to the apply.
site. The rule does not prohibit an
approach in the proposed rule. First, employer from exercising his or her 2. Disciplinary Policies
OSHA has added new regulatory text to discretion to charge an employee for
address specifically an employer’s Commenters were also concerned that
replacement PPE when the employee OSHA’s rule would prevent them from
obligation to pay for replacement PPE. fails to bring the PPE back to the
OSHA believes that because the issue of effectuating their reasonable
workplace. disciplinary policies and infringe upon
replacement PPE was not included in Furthermore, by setting forth in the
the regulatory text of the proposed rule, legitimate management practices to
regulatory text that employers can ask
there was confusion amongst employers enforce safety and health rules at the
employees to pay for replacement PPE
as to their precise obligations. By worksite. Some commenters argued that
needed as a result of an employee
including replacement language in the without employer disciplinary
intentionally damaging PPE, OSHA is
regulatory text, OSHA believes that the programs, abuse would occur (See, e.g.,
addressing the concerns of many
rule will be clearer for employers and Ex 12: 49), and stated that there were no
commenters that the proposed rule
employees. would have required employers to pay provisions that would allow employers
Second, in formulating the regulatory for replacement PPE damaged due to to enforce employee accountability (See,
text, OSHA determined that using employee misconduct (See, e.g., Exs. 12: e.g., Exs. 12: 31, 34, 68, 95, 167, 172,
‘‘normal wear and tear’’ as a benchmark 21, 44, 58, 68, 79, 101, 152, 154, 165, 212). As ORC, Inc. stated:
was unhelpful, given the wide variety of 172, 182, 203, 210, 212, 228; Tr. 154, How the employer chooses to deal with
PPE covered by the rule and the wide 549; 46: 23). OSHA wants to make clear, situations where an employee has lost or
variety of uses for the PPE. OSHA was however, that the exception only caused damage to required PPE should
concerned that relying on ‘‘normal wear remain the decision of the employer. The
applies when the damage was
situation is analogous to that confronting an
and tear’’ could result in employers not intentional. Accidental damage of the employer when an employee fails to follow
providing required replacement PPE at PPE by the employee does not qualify other safety and health requirements. There
no cost to employees. Furthermore, for the exception. are a number of ways to deal with the
OSHA determined that the term Finally, OSHA emphasizes that the problem, depending on the particular
‘‘occasional loss’’ was vague and could final rule only requires the employer to workplace, circumstances surrounding the
be subject to varying interpretations. pay for PPE that is used to comply with particular incident, and the particular
OSHA thus determined that the rule the Parts that the rule amends. employee involved. It is up to the employer
would not rely on these terms, but Employers are not required to pay to to determine what works best in his or her
would specify when employers are not replace PPE that is not used to comply establishment (Ex. 12:222).
required to bear the cost of replacement with those Parts. Therefore, if the OSHA does not believe this rule
PPE. Thus, the rule requires employers employer is not required to pay for the would have that effect and certainly did
not intend this rule to have that effect. Committee, in discussing equipment understand the hazards to which they are
Therefore, OSHA wishes to emphasize abuse by employees, stated that exposed, why the hazards pose a threat, and
that the rule does not prohibit management ‘‘[e]ven has the right under how to protect themselves and others from
the hazards. Training for the purpose is
employers from fairly and uniformly our collective bargaining agreements in
reinforced by encouragement of attempts to
enforcing work rules within the context the management’s rights clause to instill work safely and by positive recognition of
of a system of reasonable and reasonable and fair rules, regulations, safe behavior.
appropriate disciplinary measures to and disciplines on a job site that govern If, in such a context, an employee,
ensure compliance with this rule. OSHA use of such equipment.’’ Mr. Krul supervisor, or manager fails to follow a safe
recommends that employers use related an incident involving the blatant procedure, it is advisable not only to stop the
employee disciplinary programs as part abuse of fall protection equipment: unsafe action but also to determine whether
of their overall effort to comply with some condition of the work has made it
Now there is the odd case of, you know, difficult to follow the procedure or whether
OSHA standards and establish effective somebody used as it was in the case of some management system has failed to
workplace safety and health programs. Roberts Roofing where an employee was seen communicate the danger of the action and
This is therefore also the case when using a safety harness to tow a pick up truck. the means for avoiding it. If the unsafe action
employers are providing PPE to their Well, good Lord. I mean, you’re the owner of was not based on an external condition or a
employees to protect them from the company and you see somebody abusing lack of understanding, or if, after such
workplace injury and illness. As the a piece of safety equipment like that. I’d external condition or lack of understanding
Society of Human Resource either fire the guy or make sure he got his has been corrected, the person repeats the
first notice of disciplinary action. What action, it is essential that corrective
Management (SHRM) stated: ‘‘An difference does it make if it’s PPE or if it’s
employer has both the right and the discipline be applied. To allow an unsafe
one of his expensive tools on the job? If it’s action to continue not only continues to
obligation (under the OSH Act) to use abuse of company property, it’s abuse of endanger the actor and perhaps others; it also
disciplinary procedures to ensure company property. And that goes to the heart undermines the positive discipline of the
compliance with safety and health of reasonable, fair discipline, rules and entire safety and health program. To be
requirements’’ (Ex. 46: 43, p. 9). regulations (Tr. 315–316). effective, corrective discipline must be
One aspect of ‘‘reasonable and OSHA has always encouraged applied consistently to all, regardless of role
appropriate’’ disciplinary measures is employers to exercise control over the or rank; but it must be applied.
whether they are proportionate to the conditions at their workplace. OSHA In 2000, OSHA issued revisions to the
employee offense. For example, docking also notes, as discussed in the preamble Voluntary Protection Programs (64 FR
an employee’s pay $100 for losing a $10 to the bloodborne pathogens standard, 45649–45663), which included the
reflective vest would not be allowed as, that disciplinary programs are not the following element of an effective safety
the penalty is unreasonably only alternative employers can use to and health program:
disproportionate to the cost of the PPE. encourage employees to follow their
Likewise, requiring an employee to c. Hazard Prevention and Control. Site
PPE policies. Positive reinforcement hazards identified during the hazard analysis
repay the full cost of a lost PPE item approaches, the individual employee’s
within days of its expected replacement process must be eliminated or controlled by
performance evaluation, or increased developing and implementing the systems
date is not a fair policy and would not education efforts, can also be used by discussed at (2) below and by using the
be allowed. Disciplinary systems must employers to improve compliance and hierarchy provided at (3) below.
be implemented consistently for all reduce employee misconduct (56 FR (1) The hazard controls a site chooses to
employees, regardless of rank or role. 64129). use must be:
Disciplinary systems that circumvent OSHA sets forth much of its policy for (a) Understood and followed by all affected
the PPE payment requirements and shift parties;
evaluating the effectiveness of (b) Appropriate to the hazards of the site;
payment to employees when the PPE is employers’ safety and health programs
not lost or intentionally damaged will (c) Equitably enforced through a clearly
in its Voluntary Protection Programs, or communicated written disciplinary system
be considered a violation of the VPP. In 1989, OSHA issued voluntary that includes procedures for disciplinary
standard. Finally, employers must take guidelines for safety and health action or reorientation of managers,
precautions to assure that disciplinary programs. In several sections of the supervisors, and non-supervisory employees
systems are not administered in a Federal Register notice (54 FR 3904– who break or disregard safety rules, safe work
manner that infringes upon an 3916) announcing the guidelines, OSHA practices, proper materials handling, or
employee’s rights under the OSH Act. stressed the need for effective, fair emergency procedures * * * [sections (2)
The use of disciplinary systems is also and (3) include information on hazard
disciplinary programs. For example, control systems and the hierarchy of
recognized by employees as a valid
OSHA stated that: controls].
means for dealing with PPE loss and
abuse issues. In discussing situations When safe work procedures are the means Further, the VPP policies and
where employers require that employees of protection, ensuring that they are followed
procedures manual (CSP 03–01–002 03/
pay for lost equipment, Jacqueline becomes critical. Ensuring safe work
practices involves discipline in both a 25/2003) advises the OSHA team
Nowell, representing the UFCW, stated positive sense and a corrective sense. Every reviewing a VPP applicant’s safety and
that management has full run of the component of effective safety and health health program that:
plant and is permitted and capable of management is designed to create a A documented disciplinary system must be
coming up with disciplinary policies disciplined environment in which all in place. The system must include
(Tr. 216). Similarly, George Macaluso of personnel act on the basis that worker safety enforcement of appropriate action for
the Laborer’s Health and Safety Fund and health protection is a fundamental value violations of the safety and health policies,
stated ‘‘If an employer has a problem of the organization. Such an environment procedures, and rules. The disciplinary
with a particular worker repeatedly depends on the credibility of management’s policy must be clearly communicated and
losing or damaging equipment, that’s a involvement in safety and health matters, equitably enforced to employees and
inclusion of employees in decisions which
management or disciplinary issue, not a management. The disciplinary system for

affect their safety and health, rigorous safety and health can be a sub-part of an all-
matter under OSHA’s jurisdiction’’ (Tr. worksite analysis to identify hazards and
274). Further, Robert Krul of the encompassing disciplinary system.
potential hazards, stringent prevention and
Building Construction Trade control measures, and thorough training. In Thus, employers that do not have
Department’s (BCTD) Safety and Health such an environment, all personnel will reasonable and appropriate safety and
health disciplinary systems are denied 3. Replacement Schedules and involved in service life estimation,
entry into the VPP program. As these Allowances stating that:
longstanding policies display, OSHA Several commenters raised issues Each worksite and employer would need to
not only allows employers to have related to regular replacement schedules include in their PPE assessment, when and
disciplinary programs, the Agency and allowances used to replace PPE how PPE will be replaced. The employer
encourages employers to have such (See, e.g., Exs. 12: 153, 188; 46: 43). The needs to find what factors are and/or will be
programs and to manage them in a present at the worksite to cause the normal
SHRM recommended that employers be
manner that supports occupational wear and tear and/or immediate damage to
allowed to set a pre-determined service the PPE specified. Anything outside the
safety and health objectives. life for PPE, and limit replacement of guidelines of the established factors should
OSHA has emphasized through its PPE to situations that involve normal require the employee to incur the
enforcement policies that employers wear and tear through a pre-determined replacement costs. However, a periodic
must exercise control over the working length of time, stating that: evaluation of the PPE specified, the PPE
conditions at their workplace. OSHA’s assessment, and the factors regarding
Employers that provide PPE should be able
replacement, need to be performed in order
Field Inspection Reference Manual to develop rules that take into account the
to ensure that a reasonable and appropriate
(FIRM) CPL 2.103 (Sept. 26, 1994) is service life of the PPE. Employers should not
be required to pay for PPE and all system is always in place (Ex. 11: 116).
OSHA’s primary reference document
identifying the Agency’s field office replacements, regardless of whether service OSHA believes that the expected
life has been met. Misuse and neglect will service life for any PPE depends on
inspection responsibilities. It provides greatly shorten the service life of any PPE.
OSHA’s field staff, including several factors, and the manufacturer’s
Employers often pay for PPE and HR [human
Compliance Safety and Health Officers recommendation is only one factor.
resources] professionals should be allowed to
(CSHOs) with direction on the Agency’s require employees to pay for their own OSHA believes other factors, such as the
inspection procedures, documentation replacement if such a replacement is needed working conditions under which the
requirements, citation policies, prior to expiration of the equipment’s service PPE is used, the probability of
abatement verification procedures, and life. The purpose of such an approach would workplace incidents damaging the PPE
other procedures and policies needed to be to provide an incentive for employees to or making it otherwise unable to protect
take better care of their equipment (Ex. 46: the employee, misuse, and any other
implement an effective and consistent
43, p. 10). conditions relevant to the worksite and
national enforcement policy while
providing needed latitude for local In a similar comment, the Sheet Metal the use of the PPE are highly relevant.
conditions. and Air Conditioning Contractors OSHA does not object to employers
National Association suggested inserting considering expected service life in an
The FIRM specifically recognizes the allowance system. However, such
language requiring employees to pay for
role of disciplinary programs that systems must ensure that replacement
replacement PPE if it has been lost or
employers use to ensure that their PPE is provided at no cost to employees.
damaged ‘‘[b]efore it has been used for
employees follow adequate workplace In addition, these employers must have
its minimum anticipated use period, as
safety and health rules. These programs systems in place to deal with situations
determined by the employer and/or
may be used to establish the where PPE is damaged at work (e.g.,
manufacturer * * *’’ (Tr. 92–93). The
unpreventable employee misconduct accidents) or lasts for a period shorter
ISEA stated that:
defense to a citation issued against the than the expected service life due to
employer for conditions violative of the It is important that any item of PPE be
replaced immediately when an inspection conditions other than loss or intentional
OSH Act (CPL 2.103 section 7 ch. III damage.
reveals that it is damaged or no longer meets
C.8.c.1.). Additionally, the Agency wants to be
its intended use. Manufacturers provide
The Firm explains that guidelines to assist in making this clear that the rule would not require
‘‘unpreventable employee misconduct’’ determination. Employers should pay for that the employer provide and pay for
is an ‘‘affirmative defense,’’ which is these replacements under the same terms as replacement PPE whenever requested by
defined as ‘‘any matter which, if they provide initial issue of PPE. Some an employee, as was the concern of one
established by the employer, will excuse companies provide an annual PPE benefit to commenter (Ex. 46: 43, p. 8). If an
employees based on expected use of PPE
the employer from a violation which has employee requests replacement PPE, the
under normal conditions. If this amount is
otherwise been proved by the CSHO.’’ exceeded, employees would have to pay for employer should evaluate the PPE in
In other words, if the employer can replacement only if it is their fault for it question to determine if, in its present
prove each and every element of an being lost or damaged. The employer can, of condition, the PPE provides the
affirmative defense to OSHA, the course, pay more than this annual amount protection it was designed to provide.
Agency may decide that a citation is not when circumstances warrant. Such a system Employees can be charged for
warranted. The elements of this defense, would eliminate abuse of the program (Ex. replacement PPE, but only when the
as set forth by the Review Commission 12: 230). PPE is lost or intentionally damaged by
and the courts, are that the condition OSHA does not object to allowances the employee.
that violated an OSHA standard was as a means of paying for PPE, as long as OSHA notes that some employers
also a violation of the employer’s own the allowance policy assures that currently convey ownership of PPE to
work rule, that the violation would not employees receive replacement PPE at employees, thus allowing employees to
have occurred if the employee had no cost as required by the final rule. As control the use of the PPE both on and
obeyed the employer’s work rule, that several commenters noted, this is a off the job. OSHA’s PPE rules require
the employer’s work rule was effectively common practice, and it appears that in employers to ‘‘provide’’ PPE to their
communicated to the employee, and the many cases it is an effective and employees. OSHA does not require
employer’s work rule was uniformly convenient method for providing PPE at employers to transfer ownership and
enforced by the employer. OSHA no cost to employees. control over PPE to employees.
believes that an important aspect of Allowance systems are based on the Employers are free to choose that option
exercising control over the workplace is expected service life of the PPE. The and others if they so desire. For
the effective training and supervision of Screenprinting and Graphics Imaging example, as pointed out by various
employees. Association (SGIA) noted several factors commenters, the employer is free to
prohibit employees from taking not intend for employers to have to do not contain explicit language
employer-owned PPE away from the reimburse employees for equipment that concerning employee-owned PPE as in
workplace and can elect to keep the PPE they voluntarily bring to the worksite §§ 1910.132(b) and 1926.95(b), the final
in question at the establishment with and wish to use. A number of PPE payment rule contains the phrase
the use of lockers or other storage commenters to the proposal questioned ‘‘adequate protective equipment’’ as a
mechanisms (Tr. 203, 274, 312–313, OSHA’s position regarding equipment pre-requisite to use of the employee-
337). The employer may also retain owned by employees. This addition to owned PPE in the affected maritime
ownership of the PPE and still allow the final rule is a reaction to these workplaces. It is the Agency’s position
employees to remove it from the comments and clearly sets forth an that when allowing the use of employee-
workplace. employer’s obligations with respect to owned PPE in the maritime setting, the
In summary, OSHA is requiring employee-owned PPE. OSHA explains employer is still obligated to ensure that
employers to pay for the initial issuance this provision and addresses relevant the PPE used is appropriate and
of PPE, as well as its replacement, comments below. adequately protective of employees.
except when the employee has lost or These obligations are inherent in the
intentionally damaged the PPE. Adding A. Employer Responsibility To Ensure
requirement that the employer
regulatory text addressing the issue of ‘‘Adequate Protective Equipment’’
‘‘provide’’ PPE. Several of the PPE
payment for replacement PPE makes an It is important at the outset to set forth provisions in the maritime standards
employer’s obligations clear. The rule an employer’s existing obligations under also specifically require that employers
does not prohibit the employer from OSHA standards with respect to ensure the use of ‘‘appropriate’’ PPE.
using policies, such as allowances, to employee-owned PPE. OSHA’s current (See, e.g., 29 CFR 1915.152(a) (‘‘The
fulfill their obligations under the rule, general industry standard states, employer shall provide and shall ensure
so long as the policies assure that ‘‘[w]here employees provide their own that each affected employee uses the
employees receive replacement PPE at protective equipment, the employer appropriate personal protective
no cost as required by the final rule. shall be responsible to assure its equipment * * *.’’))
Neither does the rule prevent employers adequacy, including proper
from fairly and uniformly enforcing maintenance, and sanitation of such B. Employees Who Already Own PPE
work rules to ensure compliance with equipment’’ (29 CFR § 1910.132(b)). The The most common situation where
this rule. OSHA emphasizes the need construction standards contain similar employers may encounter employee-
for effective, fair disciplinary programs, language in § 1926.95(b). These owned PPE is when newly hired
as seen in its Voluntary Protection provisions ensure that all PPE used by employees report to the worksite with
Programs. OSHA also believes that the employees has been evaluated and is their own PPE. The employee may have
rule is consistent with the duty that adequate to protect the employee from been given the PPE by a former
employers have with regard to working hazards in the workplace. OSHA will employer, may have purchased the PPE
conditions because it reserves to them not allow employers to escape their for a prior job or because of a personal
the right to control the use and ongoing responsibility to assure that preference for certain features or
maintenance of the PPE that is used at PPE used at their workplace is adequate aesthetics, may have obtained the PPE
their workplace. simply because an employee may own from a friend or relative who no longer
the protective equipment. If that were needed it, may have obtained PPE while
VI. Employee-Owned PPE permitted, employees would receive in an educational program, or from
The final PPE rule addresses less effective PPE protection. some other source. This occurs in many
employee-owned PPE in the workplace To recognize an employer’s industries but seems to be found more
and states that, where an employee fundamental obligation to ensure that frequently in workplaces that use short-
provides adequate protective equipment PPE used is adequate to protect affected term labor.
he or she owns, the employer may allow employees, the final PPE payment rule OSHA recognizes that employees who
the employee to use it and is not refers to the employee providing his or change employers frequently may want
required to reimburse the employee for her own ‘‘adequate protective to carry their PPE from job to job.
it. This is included in the regulatory text equipment.’’ OSHA has included this Underlying reasons for this can include
at § 1910.132(h)(6) for general industry, phrase to ensure that employee-owned that the employee will be familiar with
§ 1915.152(f)(6) for shipyard PPE is used only where the PPE is the PPE, will have ‘‘broken it in,’’ and
employment, § 1917.96(f) for adequate to protect the employee from especially if the employee purchased
longshoring, § 1918.106(f) for marine hazards in the particular workplace the PPE, will have the equipment that
terminals, and § 1926.95(d)(6) for where it is being used. Furthermore, he or she prefers and finds the most
construction. The final rule also makes references to §§ 1910.132(b) and comfortable and aesthetically pleasing.
clear that employers shall not require 1926.95(b) remain in the general This practice is common in the
employees to provide or pay for their industry and construction standards to construction, marine terminal, and
own PPE, unless specifically excepted ensure that when employers allow shipyard industries, as well as
by the other provisions of the rule. This employees to use personally-owned PPE workplaces employing individuals from
will prevent employers from avoiding at work, the employer evaluates the PPE temporary help services. (Application of
their obligations under the standard by to make sure that it is adequate to the standard in these industries is
requiring their employees to purchase protect employees, that it is properly addressed in more detail in the
PPE as a condition of employment or maintained, and that it is kept in following section.)
placement. sanitary condition.4 While the maritime As discussed previously and noted by
This provision was not specifically standards in Parts 1915, 1917, and 1918 many commenters, in some trades,
included in the proposed rule. However, industries, and/or geographic locations,
OSHA never intended in the proposed 4 Use of the word ‘‘sanitary’’ does not indicate PPE for employees who frequently
rule to prevent employees from that the Agency expects PPE to be maintained at a change jobs can take on some of the
level approaching ‘‘hospital clean.’’ ‘‘Sanitary
voluntarily using PPE they own, so long condition’’ simply means that the PPE must be kept
qualities of a ‘‘tool of the trade.’’ In
as the PPE is adequate to protect them at a level of cleanliness such that it does not present other words, the PPE is an item that the
from hazards. Furthermore, OSHA did a health hazard to the employee who is using it. employee traditionally keeps with his or
her tool box. This may be because the the employer retains ownership of the (Ex. 12: 12). Another acceptable
PPE is used while performing some type PPE, the employer has the right to alternative is a deposit system that
of specialized work, such as welding or control the use of the PPE, just as he or provides an incentive for employees to
electrical work, or because it is a she would control any other equipment, return the equipment. However, the
tradition in the industry, such as in tools, parts, or facilities that he or she Agency cautions that the deposit system
home building. OSHA has not included owns. must not be administered in a fashion
an exception to the payment Some commenters to the rulemaking that circumvents the rule and results in
requirement for tools of the trade questioned whether employers had the an employee involuntarily paying for
because, among other things, of the right to recover PPE once the employee his or her PPE.
difficulty of defining, with adequate no longer works for the providing In some situations, an employer may
precision, when an item of PPE is or is employer. The NAHB asserted that ‘‘[i]f prohibit an employee from using PPE
not a tool of the trade. However, because an employer issues equipment that they that the employer has paid for while
the rule does not require employers to have paid for, then they should expect working for another employer or for
reimburse employees for PPE they to get it back; if not, the employer must personal purposes. Conversely, an
already own, it recognizes that some be permitted to charge for the employer may allow an employee to use
employees may wish to own their tools equipment’’ (Ex 12: 68). A number of employer-owned PPE while working for
of the trade and bring that equipment to commenters asked if they could require another employer or for personal
the worksite. employees to provide a deposit that purposes. Since the employer has
OSHA has further emphasized in the would be returned when the employee retained ownership of the PPE, he or she
regulatory text that employees are under returned the PPE (See, e.g., Exs. 12: 12, can stipulate where it is used. OSHA
no obligation to provide their own PPE 44, 68, 140, 153, 154, 165, 203). The does not object to either of the
by stating that the employer shall not Associated Building and Contractors, aforementioned practices.
require an employee to provide or pay Inc. (ABC) stated that: The VPPPA noted that their member
for his or her own PPE, unless the PPE [t]here are cases of the short-term employee, firms promote off-the-job safety by
is specifically excepted in the final rule. i.e., the person who is hired, given $150.00 encouraging employees to use PPE
These provisions address the concern plus in safety apparel, then decides while performing personal tasks, when
that employers not circumvent their construction is not for him or her and leaves the PPE is suitable for such use and the
obligations to pay for PPE by making the next day. For this reason, the employer employer has given permission (Ex. 12:
employee ownership of the equipment a should be allowed to require a deposit from 113). OSHA recognizes the benefit of the
condition of employment or continuing short-term and temporary employees, to be policy articulated by VPPPA. If
refunded when the equipment is returned in
employment or a condition for employees utilize PPE consistently at
satisfactory condition (Ex. 12: 153).
placement in a job. OSHA recognizes work and at home, its use is likely to
that in certain emergency situations, William McGill of the International become more natural, or ‘‘second
such as response to a natural disaster, Brotherhood of Electrical Workers nature’’ to the employee, and PPE
where immediate action is required, it described one such deposit system compliance at work may be improved.
may be necessary for employers to hire during his testimony. His bargaining Another means of improving
or select employees already in unit reached an agreement with the compliance is for employers to develop
possession of the appropriate PPE. As a company in which the employees put clear policies for PPE, i.e., specific
general matter, however, employers down a security deposit for their hard procedures for use, maintenance,
must not engage in this practice. Taking hats, and when they leave the company, storage, and so forth. The employer
PPE-ownership into consideration the deposit is refunded when the hard should communicate these policies
during hiring or selection circumvents hat is returned (Tr. 588–590). clearly to employees, ensuring that they
the intent of the PPE standard and After considering these comments, are understood and followed. A
constitutes a violation of the standard. OSHA recognizes the concern of reasonable approach to conveying this
employers and addresses it as follows. information would be to include
C. Employer Ownership and Control If the employer retains ownership of the training material covering these topics
Over PPE PPE, then the employer may require the when conducting the mandatory PPE
When employers purchase PPE, they employee to return the PPE upon training.
often retain ownership. In this situation, termination of employment. If the While OSHA anticipates that most
they ‘‘provide’’ the PPE to the employee employee does not return the PPE will be purchased by and remain
without conveying ownership to the employer’s equipment, nothing in the the property of the employer, OSHA
employee. This is similar to ‘‘providing’’ final rule prevents the employer from foresees some employers conveying
an employee a tool to use, a lift truck requiring the employee to pay for it or ownership of the PPE to their
to drive, or a company automobile. take reasonable steps to retrieve the employees. Many commenters argued
In some workplaces that follow this PPE, in a manner that does not conflict that employees take better care of PPE
approach, the PPE is kept in on-site with federal, state or local laws that they actually own (See, e.g., Exs.
lockers or other storage facilities to concerning such actions. In these 12: 112, 154, Tr. 547, 679). While
prevent employees from using the PPE situations, OSHA notes that the employers are required to pay for PPE,
off the job, to avoid loss or damage to employer is not allowed to charge the OSHA does not object to employers
the PPE, to prevent contaminants from employee for wear and tear to the transferring ownership of the equipment
leaving the workplace on or in equipment that is related to the work to employees.
equipment, or simply as a convenience. performed or workplace conditions. As
In other workplaces, the employer suggested by National Tank Truck D. Upgraded and Personalized PPE
purchases the PPE, retains ownership of Carriers, Inc., a written agreement, for In some workplaces, an employer may
the equipment, but allows (or even example, between the employer and allow an employee to ‘‘upgrade’’ or
requires) the employee to remove the employee on the matter may be an personalize their PPE, thereby obtaining
PPE from the worksite and return with effective method of ensuring that the PPE beyond what the employer is
it when it is next needed to protect employer’s expectations of the required to purchase. Issue seven of the
against a hazard. In either case, when employee are clear and unambiguous proposal addressed this situation, i.e.,
an employee who prefers more costly included in the final standard to address PPE that protects against hazards in the
PPE than that provided by the employer. PPE owned by employees applies workplace. If the employer allows
The proposal asked, ‘‘If an employee equally to upgraded or personalized PPE employees to take the allowance and
wants to use more costly PPE because of purchased by employees. When an use it toward the purchase of
individual preference, should that employee owns a certain type of acceptable, but upgraded or
employee be responsible for any upgraded PPE and wishes to use it on personalized PPE, that is permissible
difference in cost? Is there evidence that the jobsite rather than using the PPE under the final rule. In this instance,
such ‘‘individualized’’ PPE has caused provided by the employer, the employer OSHA stresses that the employer is only
safety problems in the past?’’ (64 FR is not required to reimburse the responsible for the cost of the ‘‘basic’’
15416). employee for that PPE, pursuant to the PPE.
OSHA received many comments on employee-owned exception discussed Another issue related to upgrading
this issue. Several commenters stated above. and personalizing PPE is allowing
that if an employee wants more Second, OSHA clarifies that an employees to choose PPE from an array
expensive equipment, they should pay employer is not required to pay for of equipment. The VPPPA suggested
for the difference in costs (See, e.g., Exs. upgraded or personalized PPE requested that OSHA require employers to provide
12: 17, 50, 52, 68, 99, 107, 145, 152, 172, by an employee, provided the employer an adequate selection of appropriate
188, 201, 217, 228, 230). Some provides adequate ‘‘basic’’ PPE to the PPE, so each employee will find
commenters argued that if employees employee. Under the current standards, equipment that is comfortable,
want more costly PPE than that which employers must provide PPE that functional, and sized appropriately (Ex.
the employer is providing, they should protects against hazards in the 12: 113). While ORC agreed that the
be responsible for the entire cost of the workplace. Allowing the use of other arrangements for paying for more
PPE (See, e.g., Exs. 12: 65, 79, 107, 110, PPE that the employee may prefer or expensive PPE should remain the
114, 150). Other commenters argued that provides features beyond those decision of the employer, they also
that employers should pay for PPE necessary for employee protection from noted that ‘‘[e]xperienced employers are
which the employee prefers, so workplace hazards remains at the * * * aware that, where possible, it is
employees will have PPE that fits better, discretion of the employer. If an desirable to offer employees an
is more comfortable, and is more likely employee requests some specialized opportunity to select from an array of
to be used (See, e.g., Ex. 12: 134, 218). PPE in place of the PPE provided by the equally-effective PPE types. This not
Some thought that the purchase of employer,5 the employer may allow the only helps to ensure that an employee
upgraded or more costly PPE should be employee to acquire and use the PPE, is issued PPE that is both effective and
at the discretion of the employer (See, but the employer is not required to pay comfortable, but encourages acceptance
e.g., Exs. 12: 3, 114, 183), or for it. If the employer allows upgrades and use of the PPE by that employee’’
alternatively that employees may or personalized PPE, he or she is still (Ex. 12: 222). Corrado & Sons, Inc. noted
upgrade their PPE, but the employer required to evaluate the PPE to make that they have a safety committee which
need not allow the use of that PPE at the sure that it is adequate to protect the allows the employees to select PPE that
workplace (Ex. 12: 183). Some argued employees from the hazards in the is the safest and most comfortable to use
that individual preference does not particular workplace, is properly (Ex. 12: 48).
justify an OSHA rulemaking effort but is maintained, and is kept in a sanitary OSHA agrees that providing a
better left to employer and employee condition. As stated by the SGIA: selection of PPE is a good practice
mutual agreement (See, e.g., Exs. 12: Allowing employees to provide their own which may improve employee
144, 190). The International PPE can be an acceptable practice as long as acceptance and use of the equipment.
Brotherhood of Teamsters (IBT) the employees are provided the PPE Employers are encouraged to consider
suggested that: assessment for their workplace and the offering a selection of PPE to their
minimum guidelines for the selection of the employees as a ‘‘best practice’’ that will
A worker’s request for more expensive PPE * * * A potential problem arises when help to improve the effectiveness of
PPE, to replace an ill-fitting PPE or one made no standards are set and no system is in place
of material that a worker may be allergic to,
their safety and health programs. In fact,
accounting for employee vs. employer PPE,
should be judged on safety and health OSHA’s respirator and noise standards
in that reimbursement claims for PPE often
grounds, not on an aesthetic basis. To the lead to disputes between employee and require employers to provide a selection
extent that an employee’s preference is employer (Ex. 12: 116). of equipment from which employees
consistent with these OSHA requirements, may choose (See § 1910.95(i)(3) and
the employer should accommodate any SGIA’s comment raises an important § 1910.134(d)(1)(iv)). Most of OSHA’s
added cost. Outside this domain, the matter point about setting standards. standards, however, do not contain this
of payment for more costly PPE of Employers are encouraged to set specific type of requirement. Instead, most
employee’s choice should rest on union policies for PPE upgrades and OSHA standards generally require that
agreements (Ex. 12: 190). employee-preferred PPE and to the PPE fit the employee properly (See,
The American Association of Airport communicate these policies clearly to e.g., § 1910.132(d)(iii), § 1915.152(b)(3),
Executives recommended that ‘‘[a]n employees, in order to minimize and § 1926.102(a)(6)(iii)).
employer should not be responsible for disputes. OSHA is not requiring employers to
the additional cost resulting from an Third, if an employer uses an provide a selection of PPE from which
employee’s preference for a costly, but allowance system to provide and pay for employees may choose their equipment
no more effective PPE product. If PPE, he or she is only required to beyond the existing requirements in the
employees want more expensive PPE, provide to the employee the amount of respirator and noise standards, because
they should either pay for it or obtain money required to purchase ‘‘basic’’ that action is beyond the scope of this
it through collective bargaining’’ (Ex. 12: rulemaking. Where an employer is not
217). 5 OSHA does not require employers to keep required to offer a selection of
OSHA agrees that it needs to clearly records of employees’ requests to use their own equipment, the PPE provided must
PPE. OSHA believes that if information about such
set forth an employer’s obligation with requests is needed by the Agency, its inspectors can
nonetheless be properly suited to
respect to upgraded or personalized gather such information through interviews and protect against the hazards of the
PPE. First, the language that OSHA has other standard investigative procedures. workplace and must fit the employee.
Ill-fitting PPE may not serve its intended 1915), longshoring (29 CFR part 1917), relationship exists under the Act is
purpose and could put the employee at and marine terminals (29 CFR part determined in accordance with
risk of injury, illness, or death. 1918).6 established common law principles of
Accordingly, employers are urged to OSHA’s proposal included specific agency. It is important to note that the
review the PPE manufacturer’s questions about how to apply the PPE employer-employee relationship for
instructions, which often provide payment standards in these industries purposes of complying with this final
additional information regarding (61 FR 15416). Many commenters raised rule is to be analyzed no differently than
appropriate selection and fit of PPE. additional questions about how the it is for any other OSHA standard.
Some commenters noted that they standard would apply to independent The criteria for determining the
were not aware of any problems with contractors, subcontractors, and existence of an employer-employee
substandard PPE or safety problems employees obtained through temporary relationship in common law are
from individualized PPE (See, e.g., Exs. help services. Caterpillar Inc. discussed in Nationwide Mutual
12: 9, 17, 52, 68, 233). Other commented that ‘‘Employment Insurance Company v. Darden, 503 U.S.
commenters worried that allowing relationships are becoming more 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581
employees to select their own upgraded complex, and OSHA must recognize the (1992) and Community for Creative
or personalized PPE could cause variety of relationships which are now Non-Violence v. Reid, 490 U.S. 730, 109
problems (See, e.g., Exs. 12: 32, 113, common in industry’’ (Ex. 12: 66, p. 4). S. Ct. 2166 (1989). The cases held that
116; Tr. 593, Tr. 178, Tr. 371). The ORC commented: the following criteria are to be
AAOHN observed that: ‘‘[e]mployers are more likely to provide considered in determining whether
Allowing individual preference for PPE protective equipment, including personal there is an employer-employee
could create safety problems if the minimal protective equipment, for any employee with relationship.
requirements for PPE are not clearly stated. whom they have a traditional employment 1. The right to control the manner and
One [AAOHN] member reported a situation relationship. The issue of responsibility for means by which work is accomplished.
where a manufacturing facility allowed payment becomes more problematic,
however, when contract work, temporary 2. The level of skill required to
individual preference for safety eyewear and
found that 70 percent of the female employees, and clothing that is subject to perform effectively.
employees wore glasses without safety both work and personal use are involved (Ex. 3. Source of required instruments and
lenses. At a very minimum any PPE to be 12: 222, p. 2). tools.
used must be approved by the employer. OSHA agrees with commenters that a 4. Location of work.
More significantly, allowing individual
number of nontraditional employment 5. Duration of relationship between
preference for PPE may pose administrative parties.
and enforcement problems for employers. relationships exist in today’s
workplaces. This section will address 6. The right of the employer to assign
Allowing individual preference for PPE may new projects to the individual.
make training and compliance more these relationships and the more
complicated for employers (Ex. 12: 32). common employment scenarios raised 7. The extent of the individual’s
by commenters. However, OSHA wishes control over when and how long to
Similarly, the VPPPA noted that work.
employee-owned equipment can be less to emphasize the fundamental
application of the final rule: It applies 8. Method of payment.
protective, noting that ‘‘PPE selection 9. The individual’s role in hiring and
can be a very technical task. Safety and in the industries above to any employer
with an employee regardless of whether paying assistants.
health staff often review extensive data 10. Whether work is the regular
and varieties of equipment options the employee is full-time, part-time,
temporary, short-term, or working under business of the employer.
before making their selection. In certain 11. Whether the employer is in
cases, employees may waive any other type of arrangement that
results in an employer-employee business.
functionality in lieu of cost, comfort and 12. The provision of employee
style. PPE selection must begin with the relationship under the OSH Act.
benefits.
hazard assessment and the resulting A. OSH Act Definition of Employee 13. The tax treatment of the
data used to identify the PPE best individual.
Implementing the PPE payment
designed for worker protection’’ (Ex. 12: The nature and degree of control
requirements, as with any of OSHA’s
113). asserted by the hiring party over the
It is the Agency’s position that regulations and standards, begins with
the identification of an employer and an means and methods of how the work is
upgraded and personalized PPE will not to be performed remains a principal
provide less protection as long as employee as defined by the OSH Act.7
Whether an employer-employee guidepost. Clackamas Gastroenterology
employers meet their obligation to Assocs. P.C. v. Wells, 123 S. Ct. 1673,
perform a hazard assessment and ensure 6 Some employees in agriculture are covered by 1679 (2003). OSHA instructs its safety
the PPE’s adequacy, including proper two general industry standards, the logging and health inspectors ‘‘Whether or not
maintenance, and sanitation of such standard (29 CFR 1910.226) and the cadmium exposed persons are employees of an
equipment. To facilitate the selection of standare (29 CFR 1910.1027), which specifically
employer depends on several factors,
appropriate PPE, employers are require employers to pay for required PPE. (the
Logging boots specified in § 1910.266(d) (l)(v), are the most important of which is who
encouraged to set clear guidelines and exempted from the requirements of this standard). controls the manner in which the
policies regarding PPE and to The PPE requirements in these two standards will employees perform their assigned work.
communicate these standards to continue to apply in agriculture.
The question of who pays these
7 The statute defines ‘‘employee’’ as ‘‘an
employees. employees may not be the determining
employee of an employer who is employed in a
VII. Industries and Employees Affected business of his employer which affects interstate factor.’’ (OSHA Field Inspection
by the Standard commerce’’ (29 U.S.C. 652(6)). The term Reference Manual CPL 2.103, Section
‘‘employer’’ means ‘‘a person engaged in a business 7—Chapter III. Inspection
The final rule incorporates PPE affecting interstate commerce who has employees’’
(29 U.S.C. 652(5)). The term ‘‘person’’ includes Documentation).8
payment provisions into the OSHA
‘‘one or more individuals, partnerships,
standards applicable to general industry associations, corporations, business trusts, legal 8 The preamble to the 29 CFR Part 1904 injury
(29 CFR part 1910), construction (29 representatives, or any organized group of persons’’ and illness recording and reporting regulation
CFR part 1926), shipyards (29 CFR part (29 U.S.C. 652 (4)). Continued
Thus, employers must examine C. Temporary Help Services and recognized as state law in California and
whether the employment relationships Subcontractors North Carolina, that OSHA’s injury and
they have make them ‘‘employers’’ of Several commenters asked OSHA to illness recordkeeping regulations
‘‘employees’’ under the Act. If they are, clarify application of the PPE payment require the employer exercising day-to-
they must ensure that PPE is provided requirements to temporary help services day supervision over employees to
to their employees at no cost, unless (See, e.g., Exs. 12: 66, 104, 145, 164) and record their injuries and illnesses, and
specifically excepted in the final rule. subcontractors (See, e.g., Exs. 12: 3, 9, that OSHA issued a letter of
15, 28, 58, 66, 129, 222). interpretation in 1985 that made the
B. Self-Employed Independent
With respect to temporary help utilizing employer generally responsible
Contractors
services, some commenters stated that for PPE. The NATSS further argued that
A truly self-employed ‘‘independent ‘‘using firms’’ should not pay for the utilizing employer is in the best
contractor,’’ is not an ‘‘employee’’ under required PPE. Caterpillar, Inc. stated position to know what hazards are
the OSH Act and is not provided the that: present at the worksite and what safety
protections of the OSH Act, and is not equipment is needed (Ex. 12: 104).
covered by the OSHA standards. [T]emporary workers, who are supervised The process used to determine which
Therefore, an employer who has by Caterpillar supervisors, often perform
production, maintenance and service
entity is the employer of the employee
contracted with that individual for operations. The fact that we supervise these is similar to the process used to
services is not required to pay for that temporary employees makes them Caterpillar determine if an individual is an
individual’s PPE. Other individuals, employees by OSHA definitions and employee or an independent contractor.
who are not considered to be employees enforcement policy. We expect temporary If the utilizing employer (the employer
under the OSH Act are unpaid employees to provide their own common that hires the temporary help service)
volunteers, sole proprietors, partners, forms of PPE. We may also expect temporary controls the manner in which the
family members of farm employers, and employees to provide specialized equipment employees perform their assigned work,
domestic employees in a residential unique to an unusual job. Caterpillar may
occasionally provide specialized PPE for
then he or she will usually be
setting. (See 29 CFR 1975.4(b)(2) and specific tasks and any specialized PPE we responsible under the standard for
§ 1975.6 for a discussion of the latter provide would be recovered when the providing PPE at no cost. Conversely, if
two categories.) As is the case with temporary employees move to another job. the employer providing the labor
independent contractors, no Complicating this issue is the fact that controls the work of the employee,
employment relationship exists between temporary employees often have employment independent of the utilizing employer,
these individuals and the hiring party, relationships with two or more entities. Our that entity will likely be the employer
and consequently, no PPE payment temporary employees often have a responsible for providing PPE at no cost.
obligation arises. relationship with their employment agency
or parent firm which may provide insurance
It may even be possible that both
However, a self-employed employers will be the ‘‘employers’’ of
coverage, workers compensation benefits,
independent contractor may become an training, and basic personal protective the employees, and that both will have
employee of the hiring party, even if equipment. * * * OSHA must exclude a shared responsibility for providing
only temporarily. The label assigned to temporary employees from the coverage of PPE at no cost. This principle is seen in
an employee is immaterial if it does not the proposed standard, or require that their the context of the OSHA bloodborne
reflect the realities of the relationship. current employer only assure that PPE is pathogens standard with respect to
For example, an employment contract utilized and allow industry practice to which a host employer and an employer
that labels a hired employee as an determine who purchases PPE (Ex. 12: 66).
supplying employees to the host
independent contractor will not Those entities that provide temporary
employer can have shared
necessarily control if in fact the hiring employees, however, such as the
responsibilities (See CPL 2–2.69 (Nov.
employer exercises day-to-day National Association of Temporary and
27, 2001) at X1.B). Even when this is the
supervision over that employee, Staffing Services (NATSS), argued that
case, each employer must ensure that
including directing the worker as to the the firm obtaining employees from a
employee protection does not ‘‘slip
manner in which the details of the work temporary help service (the utilizing
through the cracks’’.
are to be performed, when it is to be employer) should pay for PPE, stating The labor-providing firm and the
performed, and so forth. Thus, that: utilizing firm are free to agree how to
depending on the nature and degree of Although temporary staffing firms are coordinate the provision of PPE at no
control asserted over the means and employers of the workers that they send on cost through private arrangements, for
methods of how the work is to be assignment to a customer’s worksite, under example, by contract. However,
performed, the hiring employer may be long-standing OSHA policy the primary
employers may not escape their ultimate
responsibility for providing and paying for
responsible for compliance with OSHA PPE for such workers falls on the entity that responsibilities under the Act by
standards, including providing PPE to directs and controls the workers on the requiring another party to perform them.
that individual at no cost. worksite on a daily basis. In most cases, it is If they do so and those duties are
the customer that utilizes the workers and neglected, ultimately the responsibility
issued in 2001 addressed a number of these issues directs and supervises them on a day-to-day remains with the employer of the
(66 FR 5916 6135). To ensure accurate recording basis. Accordingly, in most temporary help employees. In other words, employers
and reporting, OSHA directed, that the employer arrangements, the responsibility for
record on the OSHA 300 Log the recordable injuries must ensure that their employees are
providing and paying for PPE for the
and illnesses of all employees on their payroll, temporary workers should rest with the
provided PPE at no cost, whether they
whether they are hourly, salary, part-time, seasonal
staffing firm’s customer. Requiring the provide it themselves or have another
or migrant employees. OSHA also directed the entity do so. When the employers
employer to record the recordable injuries and ‘‘utilizing employer’’ to pay for PPE for the
illnesses that occur to employees who are not on workers over whom it exercises day-to-day accomplish this goal and ensure the
their payroll if the employer supervises these control is both in accordance with long- employees receive the PPE at no cost,
employees on a day-to-day basis. Thus if an standing OSHA policy and makes sense from there is no violation of the standard.
employer obtains employees from a temporary help a practical, administrative perspective (Ex. With respect to subcontractors, many
service, employee leasing service, or personnel 12: 104).
supply service, the employer must record these
commenters requested OSHA to make
injuries and illnesses if the employer supervises NATSS also pointed out that the clear that host employers/general
these employees on a day-to-day basis. utilizing employer principle is contractors on multi-employer worksites
are not responsible for the payment of dependent on the employer/employee employer’s equipment upon leaving and
PPE for the employees of relationship, as described above. take the equipment to another worksite,
subcontractors. In its submission, the Finally, OSHA stresses effective thereby placing an undue economic
Society of the Plastics Industry communication and coordination burden on shipyard employers’’ (Ex. 46:
recommended that: between the utilizing, or host firm, and 32). In a combined comment, the United
OSHA should clarify that contractors are the contractor or temporary help States Maritime Alliance Limited
responsible for the initial purchase and service. Many employers already share (USMX) and the Carriers Container
necessary replacement of their own information about these matters to help Council, Inc. (CCC) stated that ‘‘In the
employees’ equipment. For example, if the each other with their own respective marine cargo handling industry [marine
employee of a contractor arrives at the host safety and health responsibilities. terminals and longshoring], labor pools
employer’s site without the required PPE or Caroline Sherman of Arrow Temporary are often utilized to assign labor to a
is not using appropriate PPE for the current
task, the rule should specify that the host
Services, Inc., testified that training certain workplace. It is not uncommon
employer is not responsible for providing responsibility was often shared—her for a single employee to work at a
and paying for the contractor employee’s PPE company would provide general safety different employer’s facility from day to
and therefore cannot be cited for failing to do and health training (e.g, proper use of day or even shift to shift. As such, the
so. The final rule or preamble to the final rule safety equipment) and the utilizing proposed rule raises significant
should clarify this allocation of employer would provide site specific questions concerning compliance and
responsibilities (Ex. 12: 58). training (Tr. 558–559). enforcement within the marine cargo
The Dow Chemical Company added In this final rule, OSHA is not handling industry.’’ The NAHB
that ‘‘[t]he issue of who provides and specifying how employers should remarked that:
pays for such equipment should remain coordinate their obligations under the It is common knowledge that the
a contractual issue between the host and rule. However, the Agency encourages residential construction industry, and in fact
contract employer. OSHA should have employing entities, including host the construction industry as a whole, is
no role in those negotiations’’ (Ex. 12: employers, contractors, and temporary facing an increasing shortage of qualified
129). ORC noted that: help services to communicate and labor. To alleviate such shortages some areas
coordinate their workplace safety and in the country utilize ‘‘piece workers’’ to fill
Host employers have responsibility for the gap. In the areas where piece workers are
ensuring that contractors are informed of health activities.
used, how will this rule be enforced? * * *
hazards present at the worksite and for
making a determination that the contractors
D. Part-Time and Short-Term Such companies typically process 15–50
Employees workers in a single week and many of these
they hire are aware of the applicable safety
quit or are terminated after a short time. It
and health requirements (including the use of Many commenters raised concerns is not uncommon for some workers to be
appropriate PPE) for the work they are to related to part-time and short-term
perform. A host employer has an obligation terminated in a matter of hours (Ex. 12: 68).
employees (See, e.g., Exs. 12: 3, 18, 46:
not to contract with companies or The PPE payment provisions apply to
individuals who clearly do not understand or 6, 11, 16, 26, 32, 44; 46: 21, 25, 29, 37,
all employers under the Act, including
intend to comply with safety requirements. 38, 50; 47: 1; Tr. 687–688). Short-term
those with short-term employees,
And a host employer has an obligation to halt employees were characterized as
whether referred to as temporary
a contractor’s work if the host employer is temporary employees, piece workers,
aware that it is not being performed in a safe employees, piece workers, seasonal
seasonal employees, hiring hall
manner (Ex. 12: 222, pp. 3, 4). employees, hiring hall employees, labor
employees, labor pool employees, and
pool employees, or transient
OSHA appreciates these comments transient employees. In a representative
employees.9 As discussed above, if an
and is making it clear that, as a general comment, SHRM stated that:
employer-employee relationship is
matter, host employers/general Even in those cases where an ‘‘employer established, then the employer must
contractors are not responsible for pays’’ approach is shown to be appropriate provide PPE to the employee at no cost.
payment of PPE for the employees of for full-time employees, SHRM does not
As discussed earlier, if the individual is
subcontractors at multi-employer believe that would be a reasonable mandate
not an employee and is actually a self-
worksites. to extend to part-time employees, temporary
employees and temporary workers provided employed independent contractor, then
OSHA recognizes that under its multi- by a staffing service. * * * HR professionals the OSH Act does not apply, and the
employer enforcement policy, certain need greater flexibility to set and administer PPE payment rule also does not apply.
employers on multi-employer worksites their PPE payment policies as to part-time An issue relevant to part-time and
have obligations to protect the employees and temporary workers. Part-time short-term employment is the issue of
employees of others (See OSHA employees are more likely to work at several employee-owned PPE. The final rule
Directive No. CPL 2–00.124 (Dec. 10, different worksites in a given week, and provides that where an employee
1999)). This has been a longstanding temporary employees are more likely to work provides appropriate protective
OSHA enforcement policy, which flows at several different worksites within a given
equipment he or she owns, the
month or year. The proposed rule would
directly from the OSH Act’s impose an unfair burden upon one employer employer may allow the employee to
requirements that employers are to pay for PPE that an employee may be using use it and is not required to reimburse
responsible for creating safe and at other employers’ worksites at different the employee for it. This provision is
healthful places of employment. times within the week or year. SHRM included in the regulatory text at
Notwithstanding this, OSHA finds here therefore proposes that required PPE, which § 1910.132(h)(6) for general industry,
that, a host employer/general contractor is personal in nature and used by temporary § 1915.152(f)(6) for shipyard
is not required to pay for the PPE of a or otherwise non-permanent employees, employment, § 1917.96(e) for
subcontractor’s employees. However, should be exempt from the PPE employer pay longshoring, § 1918.106(e) for marine
when a host employer/general rule (46: 43).
contractor establishes an employment The Shipyard Council of America 9 For example, OSHA’s injury and illness
relationship with an employee, the host (SCA) noted that ‘‘[w]orkers in the recordkeeping regulation makes clear that ‘‘All
individuals who are ‘employees’ under the OSH Act
employer/general contractor must shipyard industry are transient and are counted in the total; the count includes all full
provide the PPE to the employee at no turnover rates are exceptionally high. time, part-time, temporary, and seasonal
cost. The obligation to pay for PPE is Often employees fail to return the employees’’ (66 FR 5938).
terminals, and § 1926.95(d)(6) for marine terminal commenters was that commenters in the longshoring industry
construction. The final rule also makes the use of labor pools and union hiring assumed that the rule would have
clear that employers shall not require halls in the longshoring industry creates banned employee-owned PPE. As
employees to provide or pay for their special circumstances that would make explained in the section on employee-
own PPE, unless specifically exempted. the PPE payment standard unworkable owned PPE, an employer can allow the
Employers cannot avoid their (Ex. 12: 14, 172, 173; 13: 7). The Pacific use of PPE that the employee provides
obligations under the standard by Maritime Association (PMA) noted that when he or she arrives at work. Thus,
requiring their employees to purchase marine cargo handling employers hire if a port association purchases and
PPE as a condition of employment or labor on a daily, as needed, basis, provides the PPE to employees, OSHA
placement. OSHA never intended in the through one or more union locals or does not object. Of course, the employer
proposed rule to prevent employees dispatch halls operated jointly by PMA must ensure that the type of and
from voluntarily using PPE they already and the ILWU (International Longshore condition of the PPE is adequate to
own, however, so long as the PPE was and Warehouse Union). As a result, protect the employee against the
adequate to protect them from hazards. much of an employer’s workforce hazards present in the workplace. The
Furthermore, OSHA did not intend for changes from shift to shift. The PMA point of this PPE payment standard is to
employers to have to reimburse pointed out that the proposed rule could ensure that the PPE used to comply with
employees for equipment that they require an employer to provide and pay OSHA standards is provided by the
voluntarily bring to the worksite and for PPE for each employee on its dock. employer at no cost to employees.
wish to use. OSHA believes that The PMA also noted the administrative As the International Union of
allowing employees to use equipment difficulties in determining whether an Operating Engineers (IOUE) noted:
they own, as OSHA has always employee or another employer paid for Workers in these industries should have no
intended, will alleviate some of the the PPE. The PMA also noted that the less protection because of the nature of the
concerns raised by commenters role of an employer association in employer-employee relationship in the ports.
regarding part-time and short-term providing PPE was unclear (Ex. 12: 173). It is the IUOE’s experience that its members
employment. Employers who employ have no desire to collect closets full of safety-
The South Carolina Stevedores toe footwear and dresser drawers full of
short-term and part-time employees may Association remarked that ‘‘Employers protective prescription eyewear. Employers
also require employees to return in the Port of Charleston would be may inquire if workers already have suitable
employer-owned PPE at the end of the forced to maintain equipment steel toe footwear and prescription eyewear.
day or when they terminate inventories and administer If so, most workers will gladly use it as they
employment, and may use a deposit recordkeeping programs on a daily basis change employers. If the worker does not
system or other mechanism to help to comply with this proposed rule for a have the PPE, then the employer should pay
ensure that their employees return the for it. Over time the cost of paying for PPE
workforce of over one thousand should even out for port employers (Ex. 12:
PPE. employees’’ (Ex. 12: 14). The NMSA 134).
E. Longshoring and Marine Terminals added:
OSHA has included marine terminal
Longshoring and marine terminal A literal reading of the proposed rule and longshore employers and
employers and employees are covered would indicate that the current employer employees in the final PPE payment
by the OSHA standards at 29 CFR Parts must be the one who paid for the PPE. Thus,
standard. OSHA is confident that the
1917 and 1918. These two standards if on Monday an employee works for
employer A, and on Tuesday the employee industry will solve the hiring hall
work together to regulate safety and employment problem with this OSHA
works for employer B, employer B must have
health conditions applying to a single paid for the PPE the employee is using on standard, just as it has for all other
industry—the loading and unloading of Tuesday. If the employee shows up at OSHA standards that apply to the
ships at the Nation’s ports. The marine workplace B with PPE paid for by employer industry. For example, the employers in
terminal standards at Part 1917 apply to A, employer B would be in violation of the industry may work with their port
onshore working conditions and the federal law. This makes absolutely no sense associations and the hiring halls that
longshoring standards at Part 1918 and is simply unenforceable. In other words, provide labor to coordinate the
apply to working conditions onboard it is not feasible (Ex. 12: 172, p. 9). provision of PPE. OSHA notes that it
vessels such as container ships or As an initial matter, OSHA notes that already has standards that require
barges. the marine cargo handling industry is employer payment for certain types of
The proposal noted that the nature of not unique in its use of union hiring PPE. There is no evidence in the record
the industry creates employer-employee halls and labor pools, and that other that employers in the marine cargo
relationships unique to each port. At industries also use these methods to handling industry, or other hiring hall
some ports, employees are hired for one hire employees, including construction industries, have difficulty applying
job through a labor pool. At another and shipyards. The fact that employees these standards to their employment
port, one employee may work for five are obtained from a hiring hall does not situation.
different employers in the same week. change an employer’s obligations under USMX and the CCC argued that
The specific questions OSHA asked the OSH Act.10 Like many others, OSHA should have consulted with the
were: ‘‘How do these factors affect the Agency’s Maritime Advisory Committee
issue of who is required to pay for PPE? 10 For example, OSHA’s compliance directive for Occupational Safety and Health
Does the employer customarily pay for CPL 02–01–028—CPL 2–1.28A—Compliance (MACOSH) before issuing the proposed
PPE in the maritime industry? Are there Assistance for the Powered Industrial Truck rule (Ex. 13: 7). OSHA notes that under
any other issues unique to the maritime Operator Training Standards explains that ‘‘Each
employer for whom an employee works is section 107 of the Contract Work Hours
industry that OSHA should consider in responsible for ensuring that the employee has been and Safety Standards Act (40 U.S.C.
this rulemaking?’’ (64 FR 15416). trained in accordance with the standard. In hiring 333, of 1973, commonly known as the
A number of longshoring and marine hall situations, the training under Construction Safety Act) and OSHA’s
terminal interests commented on the § 1910.178(l)(3)(i), truck-related topics, may be
conducted by a labor union, joint labor/ own regulations at 29 CFR Part 1912,
proposed standard (See, e.g., Exs. 12: 14, management training organization, an association of
17, 172, 173; 13: 7; 45: 35, 40; 46: 4). employers, or another third-party trainer as long as knowledge, training, and experience to properly
The most common concern among the the person(s) conducting the training have the conduct the training’’.
the Agency is required to consult with variety of PPE payment practices. considered in this rulemaking? (64 FR
the Advisory Committee on Avondale Shipyards Division reported 15416).
Construction Safety and Health that they pay for most PPE but require In response to the proposal, OSHA
(ACCSH) regarding the setting of employees to pay for certain welding received more comments from the
construction standards. However, unlike PPE, safety-toe shoes, and safety glasses construction industry than any other
ACCSH, there is no requirement for (Ex. 12: 112). Ingalls Shipbuilding had industry sector. Construction interests
OSHA to consult with MACOSH prior the same policy, but also required accounted for nearly half of the 350
to issuing a proposed regulation or employees to pay for their own hard comments received by the Agency.11
standard affecting the maritime sectors. hats (Ex. 12: 29). The Shipbuilders The commenters noted that ‘‘The issue
While the Agency may seek the advice Council of America (SCA) polled 50 of who pays for PPE has long been a
of MACOSH on a rulemaking during the shipyard companies and reported a contentious one in the construction
pre-proposal stage, and often does so, variety of payment practices for 13 types industry’’ and noted five major reasons
there is no requirement to that effect. of PPE. Employer payment practices for their opposition to the rulemaking,
Furthermore, maritime interests had ranged from 5 percent for safety shoes several of which were also articulated
numerous opportunities to comment on to 100 percent for fall protection and by commenters outside of the
the rule during the extensive chemical protective equipment. These construction industry. First, these
rulemaking process used by the Agency. employers also reported various policies commenters asserted that the proposed
USMX and CCC also argued that that required their employees to pay for rule is beyond OSHA’s statutory
longshore employees are well some equipment and share costs with authority. The Legal Authority section
compensated and can afford their own the employer for other types of PPE (Ex. of this preamble explains that OSHA is
PPE. The relative pay of longshore 12: 65). well within its statutory mandate to
employees compared to employees in issue this rule.
Many of these shipyard commenters
other sectors is immaterial to the OSHA Second, the commenters argued that
believed employees should pay for their
regulations and standards. Each the proposed rule would limit
employee is entitled to the protections own welding PPE, and especially
welding leathers. This issue is discussed employers’ flexibility in managing
afforded under the Act, including by safety and health at their workplaces.
this standard. It is therefore the duty of in more detail in section V ‘‘PPE for
The standard does not limit employers
the employer to provide PPE at no cost which employer payment is required’’.
in implementing and managing their
to their employees regardless of the Others argued the shipyard workforce
safety and health programs, an activity
employees’ pay level or employment has frequent employee turnover and that
OSHA encourages. Commenting
benefits. PPE carried from job to job should be
employers in OSHA’s Voluntary
exempted. As noted earlier, the Agency
F. Shipyards Protection Programs (VPP), all of whom
sees no reason to provide less protection
have implemented OSHA-approved
Shipyard employers and employees for short-term employees. The shipyard
safety and health management systems,
are covered by the OSHA standards at industry’s turnover rates do not appear
unanimously supported employer
29 CFR Part 1915. Shipyards engage in to be significantly higher than the rates
payment for PPE, and did not suggest
several industrial activities, including for construction and marine terminals any negative effects on their safety and
ship building, ship repair, barge (See the economic analysis for a health management systems (See, e.g.,
cleaning, and ship breaking. To the comparison of turnover rates). Exs. 12: 113, 210).
extent that the Part 1915 standards do Furthermore, the Agency has not Third, the commenters argued that the
not cover a specific safety or health received any comments that would proposed rule would give employees the
hazard, the Part 1910 general industry warrant an exception for an entire freedom to be irresponsible with
standards apply. (See CPL 02–00–142, industry. After careful consideration, company-owned PPE, and urged OSHA
Shipyard Employment ‘‘Tool Bag’’ OSHA has promulgated the same final to specify when an employer can charge
Directive for further details.) In the rule for shipyards that it is issuing for an employee for lost PPE. Employers
preamble to a 1996 rulemaking revising other industries. have a number of means available to
the Shipyard PPE standards, OSHA G. Construction address circumstances where employees
reiterated the 1994 policy requiring do not follow company rules or are
payment for PPE unless it was personal Construction employers are covered irresponsible with company equipment.
in nature and used off the job (61 by the OSHA standards at 29 CFR Part Two such means are increased
FR26327). The Agency subsequently 1926. The 1999 proposal covered the education efforts and disciplinary
included the shipyard standards in the construction industry, just as it covered systems. With respect to the latter,
1999 proposal to revise its PPE other industries. In fact, OSHA noted in OSHA expects employers to fairly
standards for all industries (64 the proposal that: enforce reasonable and appropriate
FR15402). Several shipyard interests OSHA realizes that there is frequent disciplinary systems as part of their
commented on the proposed PPE turnover in the construction industry, where
payment standard (See, e.g., Exs. 7; 12: employees frequently move from job-site to 11 More than 125 companies engaged in
29, 65, 112, 210; 13: 6, 21; 35). job-site. This is an important factor because residential home building and associated
Despite the 1996 preamble discussion, subcontractors submitted nearly identical letters,
an employer with a high turnover workplace
which will be referenced as ‘‘Form Letter A’’ (See,
the PPE payment practices reported by would have to buy PPE for more employees e.g., Exs. 12–22; 23, 24, 25, 26, 27, 30, 33, 34, 35,
these commenters varied widely. For if the PPE was of the type that could only be 36, 37, 39, 40, 41, 46, 47, 54, 56, 57, 59, 60, 61, 62,
example, Newport News Shipyard used by one employee. OSHA requests 63, 64, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78,
reported that it pays for all PPE required comment on whether its proposed exceptions 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92, 93, 94, 96,
for safety-toe footwear and prescription 97, 98, 103, 115, 118, 119, 120, 121, 122, 123, 124,
by the final standard, and asked only for 125, 126, 127, 128, 132, 136, 137, 138, 139, 140,
safety eyewear are appropriate in the
clarification of items for which construction industry. Are there any other 142, 143, 147, 148, 156, 157, 158, 159, 160, 162,
employer payment is not required (Ex. 166, 168, 170, 174, 175, 176, 177, 178, 179, 180,
approaches to handle the turnover situation 185, 186, 192, 193, 194, 195, 196, 197, 198, 199,
12: 210). (See Section V for a discussion that would be protective of construction 200, 202, 205, 208, 212, 213, 215, 216, 219, 223,
the PPE for which employer payment is workers? Are there any other issues unique 224, 225, 226, 227, 231, 232, 234, 236, 237, 238,
required.). Other shipyards reported a to the construction industry that should be 239, 240, 241, 242).
overall effort to comply with OSHA alternatives considered during the comply with OSHA standards, and that
standards and establish effective rulemaking process.’’ the PPE used to comply with OSHA
workplace safety and health programs. Similar to comments from the standards is provided at no cost to their
Nothing in this rule prevents employers maritime and longshoring sectors, a employees. Section VI ‘‘Employee-
from implementing these disciplinary number of construction-related owned PPE’’ addresses employee-
systems. The Replacement PPE section commenters noted the transient nature upgraded PPE.
of this preamble provides a discussion of construction work and the high Finally, OSHA notes that several
of this topic. turnover rates in the industry. Many of construction commenters supported the
Fourth, these commenters, along with them argued that the short-term PPE payment proposal (See, e.g., Exs.
many others, (See. e.g., Exs. 12: 18, employment nature of the industry 12: 99, 134, 153, 190). For example,
Form letter B 12) argued that employee should influence OSHA’s decisions in Associated Builders and Contractors,
payment for PPE will ensure that the the final standard (See, e.g., Exs. 12: Inc., a national association representing
PPE is maintained in good working 102, 153, 207, 229; 45: 28; form letter A; 24,000 construction and construction-
order. Commenters also noted that form letter B). The Betco Scaffold related firms in 79 chapters across the
employers would be inclined to Company remarked that: United States primarily performing
purchase PPE that is less expensive (and The services provided by the scaffolding work in industrial and commercial
perhaps less safe) than that purchased industry in support of both industry and construction initially opposed the
by employees, or that employees would construction is of short job duration and for proposed standard (Ex. 12: 153).
be inclined to purchase less expensive the greatest extent provided by temporary However, in an August 23, 2004
PPE that would not meet the minimum employees who travel from job to job. There comment, the trade association noted
PPE standards established by the is a high turnover rate and employees that ‘‘ABC, with the guidance of its
American National Standards Institute systematically walk off jobs abruptly and Safety, Environmental, and Health
without notice, taking with them their tools
(ANSI) (Ex. 12: 134, 218). The Agency Committee, has decided to support the
and any and all PPE. There is seldom a tool
addresses this issue in Section XIV, room or construction shack on site due to the requirement that employers pay for PPE
Legal Authority. short duration of the jobs. Equipment losses with some exceptions’’ (Ex. 46: 41).
Fifth, and last, the commenters and non-recovery of employer furnished PPE Those exceptions were that safety-toe
asserted that employers would need to will amount to an economic burden that protective footwear and prescription
keep receipts to prove payment to an cannot be recovered (Ex. 12: 18). safety eyewear should be the
OSHA inspector or Compliance Safety Other commenters argued that the responsibility of employees, that
and Health Officer (CSHO). Employers transient nature of the industry should employers should not have to replace
in all industries, including construction, not result in reduced protection (See, PPE damaged due to employee
typically keep receipts and other e.g., Exs. 12: 234, 218) or that OSHA misconduct, and that employers should
transaction records as part of their should make the rule fair for all be compensated by employees for PPE
accounting systems to comply with employees (See, e.g., Exs. 12: 134, 190). removed from the jobsite without the
standard accounting practices and In a typical comment, the IUOE employer’s permission. These issues are
various business regulations. For remarked that: discussed in the preamble section
example, such receipts could be needed dealing with PPE for which payment is
to prepare the employer’s income tax [w]orker turnover should not be a
consideration in determining whether a
required, and the replacement PPE
forms. Notwithstanding this usual construction employer should be required to section.
practice, nothing in the final rule pay for PPE. Construction workers should not
requires employers to keep receipts to VIII. Acceptable Methods of Payment
receive less protection than other industries
prove that they paid for PPE. Generally, where turnover may be less. If all Under the final rule, an employer may
PPE payment practices can be construction employers are required to pay utilize any method of payment, as long
determined through management and for all PPE, contractors may pass on the costs as it results in PPE being provided to
employee interviews. to construction owners in their contract that employer’s employees at no cost.
Similar to the home builders, a group price. This will level the playing field for Many methods are available, and
of about 30 electrical contractors bidders on construction work (Ex. 12: 234).
employers are free to choose a single
submitted nearly identical comments There is no logical basis for providing payment method for all types of PPE, or
(Form Letter B). These contractors, different protections for different classes different payment methods for different
which included the National Electrical of employees, as described by these types of PPE. From its review of the
Contractors Association (NECA), urged commenters, and any such comments, OSHA has identified four
the Agency to exempt certain items of differentiation is not supported by the methods that employers currently use to
electrical PPE from the payment OSH Act or case law. Consequently, the provide PPE at no cost to their
requirements because they viewed them Agency does not consider employee employees: (1) Employer purchase and
as tools of the electrical trade. After turnover as a reasonable basis for distribution, (2) allowances, (3)
considering the comments provided, excluding the construction industry (or vouchers, and (4) employer
OSHA has rejected the ‘‘tools of the any other industry) from the PPE reimbursement to employees. As
trade’’ concept and employers will payment standard. explained below, in general these
generally be required to provide most of Several commenters noted that methods are acceptable, and employers
these items at no cost to employees. employers may be compelled to incur may choose these options or develop
These comments are discussed in the cost of purchasing specific brands or other methods. At bottom, however,
Section V, ‘‘PPE for which payment is styles of PPE due to employee OSHA believes that PPE use and
required,’’ and Section VII, ‘‘Other preference, even though such PPE does effectiveness improves when employers
not provide additional protection (Ex. exercise greater control over the
12 Approximately 30 electrical contractors 12: 21, 79, 99). OSHA emphasizes that purchasing process.
submitted identical comments, which will be employers are not required to purchase
referenced as ‘‘Form Letter B’’ (See, e.g., Exs. 45: 6
all of the PPE requested by their A. Employer Purchase and Distribution
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, employees but rather are responsible for On this record, the method that
29, 38; 47: 1). ensuring that adequate PPE is used to appears to be the most effective way for
employers to provide PPE to their whereby the retailer or distributor will OSHA has interpreted them as requiring
employees is for employers to purchase accept a voucher from the employer for employer payment for the time and
the PPE themselves, keep a ready a particular type of PPE in lieu of direct travel costs an employee incurs for
supply of PPE, and distribute the PPE payment. The retailer or distributor then receiving required medical services
directly to their employees. This directly bills the employer for the PPE during non-work hours. See Phelps
method ensures that the PPE meets the after processing the voucher. Some Dodge Corp. v. Occupational Safety and
specifications the employer has set employers find this system Health Review Comm., 725 F.2d 1237
through the hazard assessment/PPE administratively convenient; it also (9th Cir. 1984). The underlying reason
selection process. It also provides the avoids having to pay money to an for OSHA’s position was that the time
simplest means of ensuring the quality employee before the purchase is made and travel needed to obtain the required
of the equipment and minimizes the in the form of an allowance. medical services could be so great that
need to individually assess each if employees were not compensated for
employee’s choice of PPE. D. Employee Purchase With Employer it, they would delay visiting a health
There are many additional advantages Reimbursement care provider (HCP), resulting in
to be gained through this approach. By Some employers may decide to use an delayed diagnosis and treatment. Even
maintaining a PPE inventory, the employee reimbursement method for worse, they might opt not to participate
employer can provide immediate providing PPE. Under this type of in the employer’s medical surveillance
replacements for PPE that may become system, the employer requires the program at all. As described below,
deficient due to wear and tear or employee to purchase the PPE and then OSHA believes that time and travel
accidental damage. OSHA’s standards reimburses the employee for the cost of required to purchase PPE is much less
require the employee to be protected the purchase. This method has most of than that required for medical services.
when exposed to a hazard. If the same advantages and disadvantages Because of this, OSHA does not believe
replacement PPE is not readily available as allowances and vouchers. The that requiring employees to shop for
to replace deficient PPE, the employee difference is that the employee is PPE on their own outside of work would
may not be able to complete his or her provided the funds after the PPE is serve as a disincentive to acquiring the
shift, resulting in lost productivity for purchased, instead of before. PPE.
the employer. The employer may also Some commenters raised an issue that First, the amount of time required to
purchase the equipment in bulk. This applies to allowances, vouchers, and visit an HCP, wait to see the HCP, get
would produce a cost savings to the reimbursement. These commenters any required tests taken, and consult the
employer through bulk purchase asked whether or not an employer HCP about the results is much longer
discounts as well as standardized would be required to reimburse an than the time needed to purchase PPE.
equipment that would be easier to repair employee for time and travel expenses OSHA has found with respect to
and maintain. to shop for PPE to ensure that PPE was medical screening and surveillance that
provided at no cost. The SHRM the amount of time required to obtain
B. Allowances services is quite long in certain
remarked:
A number of commenters raised the circumstances and if employers did not
SHRM’s understanding is that OSHA never
issue of using employee allowances to contemplated that the employer payment pay for the time and travel involved,
procure PPE (See, e.g., Exs. 12: 153, 188; obligation would extend beyond the employees might forego the
46: 43). In an allowance system, an purchase price of the PPE to include the time examinations. See e.g., Phelps Dodge,
employer gives an employee a certain the employee would spend acquiring the 725 F.2d at 1238 (actual time required
amount of money to use to purchase PPE. * * * For example, it would be fairly for medical examinations, including
specific PPE. OSHA does not object to common for an employee to travel to an transportation and waiting was ‘‘an hour
allowances as a means of paying for employer-designated shoe store where the or more’’). Furthermore, employees on
PPE, as long as the allowance policy employer has an account. The employee occasion need to make multiple trips to
ensures that employees receive would have the ability to review available
an HCP. While employers are often
shoe models, select the model and size that
appropriate PPE at no cost. best meets the employee’s needs (up to a
required to offer medical surveillance to
As several commenters noted, an specified allowance with the employee employees, employee participation in
allowance system is a common practice paying for any amount in excess of the medical surveillance programs is
and it appears that in many cases it is allowance), and possibly get some sometimes not required by OSHA
an effective and convenient method for personalized fitting. * * * Payment of standards, and employees may decline
providing PPE to employees at no cost. compensation for the time spent shoe to participate. As such, the time spent
On the other hand, an allowance system shopping would be an unreasonable burden, to participate may act as a disincentive
may create the need for the employer to would likely exceed the cost of the PPE, and to employees if they were not
put in place a more rigorous method to would be fraught with the potential for abuse compensated for time and travel. These
and make it difficult to administer (Ex. 46:
ensure that the PPE is adequate for the considerations do not apply to shopping
43).
job. While the employer can take several for PPE.
steps to guide employees in their OSHA does not intend the rule to Second, unlike medical services
purchase, such as giving employees a cover time and travel expenses an where the employee would almost
list of approved vendors or PPE employee might incur while shopping certainly have to travel in person to the
specifications, the employer may need for PPE during non-work hours. OSHA HCP, there are many options available
to follow up with employees and recognizes that this position differs from for employees to acquire PPE on their
inspect the PPE. the position the Agency has consistently own and some of these involve no
taken with respect to employee time and travel. There are many retail locations
C. Vouchers travel expenses for medical services in that sell PPE, and in many cases the
Another system employers currently several other standards (See, e.g., lead employee may already be going to the
use to purchase PPE is a voucher standard at § 1910.1025(j)(1)(iii) and retail location for personal shopping. In
system. In this system, an employer bloodborne pathogens standard at addition, there are numerous catalogue
typically has an arrangement with a § 1910.1030(f)(1)(ii)). These standards and internet retailers available for
local retailer or distributor of PPE also use the terms ‘‘at no cost’’ and employees to shop for equipment.
OSHA does not believe that the extra payment of PPE, in most cases, will take that employers will provide certain PPE
time needed to acquire PPE outside of effect at the signing of the next contract (Ex. to employees at no cost and some
work hours would serve as a significant 12: 183). specify certain PPE that employees will
disincentive to employees getting the OSHA has not implemented a be responsible for providing (and paying
PPE. compliance deadline that would allow for) themselves. The final standard
For these reasons, employers are not all collective bargaining agreements to could have an impact on these
required to reimburse employees for expire and be renegotiated before the agreements. OSHA has carefully
time spent shopping for PPE or for rule takes effect. This would take considered the impact of the final rule
travel expenses related to PPE shopping. several years and would result in undue on collective bargaining agreements and
delay of the safety and health benefits has determined that workplaces with
IX. Effective Dates collective bargaining agreements should
that the Agency expects will result from
Each of the PPE payment standards the rule. The six-month compliance be treated no differently in the final rule
includes an effective date paragraph to deadline will allow sufficient time for than workplaces without collective
establish the dates when employers will some collective bargaining agreements bargaining agreements. However, to
be fully responsible for meeting the PPE to expire and will provide a reasonable reduce impacts on existing collective
payment requirements. (See interval for employers and unions to bargaining agreements, OSHA is
§ 1910.132(h)(7), § 1915.152(f)(7), work out the specific methods by which establishing a six-month compliance
§ 1917.96(f), § 1918.106(f), and PPE will be provided to employees at no deadline for the final rule. This will
§ 1926.95(d)(7)) Each affected standard cost. allow some existing collective
will become effective on February 13, The six-month compliance date will bargaining agreements to expire or
2008. This date is 90 days from the date also give businesses time to establish provide employers and employees time
of publication in the Federal Register. systems for effectuating employer to renegotiate agreements to conform to
The Agency sets the effective date to payment. As discussed above, the final rule.
allow sufficient time for employers to employers may utilize a number of Many stakeholders commented on the
obtain the standard, read and different methods to ensure that PPE is extent to which an employer payment
understand its requirements, and provided at no cost to employees. for PPE rule would impact existing
undertake the necessary planning and Allowing a six-month compliance collective bargaining agreements. Some
preparation for compliance. The 90-day deadline will give employers time to union commenters stated that an
effective date has been established to determine what method is best for their employer payment rule would affect
comply with section 6(b)(4) of the OSH business and implement the method collective bargaining agreements in the
Act, which provides that the effective before the rule takes effect. same way as other OSHA safety and
date for a standard may be delayed for The six-month compliance deadline health standards and that OSHA should
up to 90 days from the date of will also help minimize the burden on not make any exceptions from the rule
publication in the Federal Register. small businesses. Some commenters for workplaces governed by collective
Despite the 90-day effective date, urged OSHA to consider the special bargaining agreements (See, e.g., Exs.
OSHA is extending the compliance needs of small business entities when 12: 14, 16, 17, 21, 65, 79, 99, 167, 173,
deadlines for the final standard so considering the effective date of the 183, 188, 189).
employers will be given six months to standard (See, e.g., Exs. 12: 3, 68, 145). One commenter noted that most
fully comply with the new Douglas Battery suggested the collective bargaining agreements
requirements. By extending the deadline ‘‘[e]stablishment of a size threshold (or contain language requiring employers to
to comply with the PPE payment other measure) at which the cost of pay for all required PPE (Ex. 12: 105).
provisions, OSHA will minimize the providing PPE becomes a shared Some commenters supported the rule on
impact of the rule on existing collective responsibility between employers and the basis that it would create a level
bargaining agreements, and give employees for some specified period’’ playing field for union and non-union
businesses (including small businesses) (Ex. 12: 3). employees (Ex. 12: 110) by ensuring that
needed time to implement the OSHA has not implemented a phased- in both cases employees are provided
requirements. in approach as recommended by PPE ‘‘at no cost’’ and ensure that more
A number of commenters remarked Douglas Battery because doing so would employees, including non-union
that existing collective bargaining be overly complex, cumbersome, and employees, would be afforded the same
agreements containing PPE provisions delay the benefits of the final rule. protections (Ex. 12: 113).
would be affected by the final standard However, the Agency believes that the Some commenters, on the other hand,
(See, e.g., Exs. 12: 14, 16, 17, 21, 43, 65, six-month compliance deadline will asserted that the rule inappropriately
66, 79, 117, 172, 173, 183, 188, 189). give the large number of small interferes with existing collective
Several argued that the final rule would businesses covered by the standard bargaining agreements because PPE
have a negative effect on employers that sufficient time to work with PPE payment is a traditional and mandatory
have existing collective bargaining suppliers to obtain needed equipment subject of collective bargaining under
agreements (See, e.g., Exs. 12: 14, 16, 17, and negotiate bulk discount prices. In federal law, and thus violates the
65, 79, 173, 183, 188, 189). The some cases, very small employers may policies of federal labor legislation
Association of Electric Cooperatives choose to join together and coordinate governing employer and employee
noted that, their PPE acquisition efforts through a negotiation over workplace conditions
local trade association or co-op to obtain (See e.g., 12: 43, 173, 189). Caterpillar,
OSHA should keep in mind that payment bulk discounts on equipment. The Inc., remarked that ‘‘Payment sharing
arrangements for PPE are frequently part of procedures that have been developed
the employers’ negotiations with the labor
extended compliance deadline will
union. As such, when stating the effective provide time to set up such through years of collective bargaining
date of the rule, consideration should be arrangements. will be unjustly modified by this
made to current union contracts. The proposal’’ (12: 66).
X. Effect on Existing Union Contracts OSHA finds that the final rule does
Association recommends that the effective
date of the rule allow for current labor Many collective bargaining not inappropriately interfere with
contracts to run their course. Employer’s agreements contain language specifying collective bargaining agreements. The
impact of OSHA standards on collective (where OSHA standard required use of required PPE at no cost to employees.
bargaining has been discussed by OSHA respirators but gave employer discretion Other standards are silent on the issue
in past rules. OSHA has consistently with respect to choice of respirator, of payment. OSHA is setting forth
stated that the duty to bargain with employer could require use of respirator clearly in a note to the final rule that
unions over safety and health matters without bargaining, but could not when an employer payment provision
does not excuse employers from unilaterally determine which approved in another OSHA standard specifies
complying with OSHA standards. This respirator would be used). whether or not the employer must pay
principle has been upheld by the courts OSHA has repeatedly emphasized the for specific equipment, the payment
(See, e.g., Forging Industries at 1451– importance of involving employee provision of the other standard shall
1452). In United Steelworkers of representatives in all aspects of prevail over the provision in this final
America v. Marshall, 647 F.2d 1189, workplace safety and health. The rule.
1236 (D.C.Cir.1980) the court observed: Agency believes that employers and This rule is meant to apply to all
In passing a massive worker health and unions have been able to meet both their OSHA standards requiring PPE. This
safety statute, Congress certainly knew it was responsibilities under OSHA’s includes the general employer payment
laying a basis for agency regulations that standards and their duty to bargain requirement included in the final rule,
would replace or obviate worker safety under the NLRA. This has been the case in addition to the exceptions given. For
provisions of many collective bargaining with other OSHA rules, and the Agency other standards that already require
agreements. Congress may well have viewed believes that employers and employees
collective bargaining agreements along with employers to provide a certain type of
will be able to do the same under the PPE at no cost, this final rule ‘‘amends’’
state worker’s compensation laws as part of
PPE payment standards. those standards to include the
the status quo that had failed to provide
workers sufficient protection (Id. at 1236).
One commenter remarked that exceptions for employee-owned PPE,
‘‘[t]here is no evidence that the replacement PPE, etc. Thus, this final
OSHA sees no distinction between collective bargaining process is broken’’
this rule and other OSHA standards rule must be read in concert with the
(12: 189) while another observed that other standards that require employer
placing obligations on employers. In relying on collective bargaining for the
fact, in numerous past rulemakings payment for PPE. It is only in those
payment of PPE is an ‘‘inadequate
OSHA has required employers to instances where another standard
solution’’ (Ex. 12: 100). OSHA notes that
provide PPE ‘‘at no cost’’; none of these specifically addresses an aspect of PPE
many employees are not represented by
rules has been overturned because they payment that is also specifically
unions, so relying on collective
inappropriately interfered with addressed in this final rule, that the
bargaining as an alternative to the final
collective bargaining. Compliance with provisions of the other standard govern.
rule would not be effective. It also
the rule does not conflict with would be impractical to create an For example, if an OSHA health
employers’’ obligations to bargain over exception for workplaces covered by standard states only that employers
mandatory subjects of bargaining under collective bargaining agreements, must provide PPE ‘‘at no cost’’ to
the National Labor Relations Act because doing so would result in employees, and includes no exceptions
(NLRA). unequal protection for employees to that requirement, the exceptions in
Additionally, the rule does not depending on whether a collective this final rule would apply to employers
foreclose bargaining about discretionary bargaining agreement is in place or not. and employees performing work
aspects of the standard such as the An exception would also be a covered by that standard. Conversely, if
means by which the employer will cumbersome and unduly complex another OSHA standard includes ‘‘at no
provide the PPE to employees so that it provision to enforce. cost’’ language and specifically requires
results in no cost to the employees, While OSHA does not believe there is employers to pay for all replacement
payment arrangements for equipment a need or sound rationale for providing PPE—regardless of whether the PPE was
that is not covered by the final rule, and an exception to employers whose lost or intentionally damaged—that
so forth. As courts have found, to the employees are represented under a other OSHA standard would govern an
extent the employer has discretion in collective bargaining agreement, the employer’s obligation with respect to
the means by which it achieves Agency does not want to cause undue replacement PPE, as opposed to this
compliance, and the means involve a disruption to existing collective final rule.
mandatory subject of bargaining, the bargaining agreements. Therefore, as A question naturally arises regarding
employer is not only free to bargain but explained in the Effective Dates section future rulemakings and how PPE
would be required to bargain with the of this preamble, the Agency has payment will be addressed when a
union regarding the means of extended the compliance deadline for rulemaking has PPE requirements.
compliance. United Steelworkers, 647 the standard by six months. This will Generally, OSHA intends that future
F.2d at 1236 (‘‘[w]hen an issue related allow some collective bargaining rules with PPE requirements will
to earnings protection not wholly agreements to expire. In these cases require employers to provide the PPE at
covered by OSHA regulation arises employers and unions can renegotiate no cost to employees (with exceptions)
between labor and management, it will the contract to reflect the new realities in accord with its findings in this rule.
remain a mandatory subject of collective imposed by the rule. In other cases, the However, it is difficult, if not
bargaining’’); see Watsonville six-month compliance deadline allows impossible, to predict all the PPE issues
Newspapers, LLC, 327 N.L.R.B. No. 160, employers, employees, and employee and arguments that may arise in future
slip op. 2–3 (Mar. 24, 1999); Dickerson- representatives to either conduct mid- rulemakings, and the specific PPE
Chapman, Inc., 313 N.L.R.B. 907, 942 term bargaining or otherwise come to an payment requirements that may be
(1994) (although employer must comply agreement concerning their methods for appropriate for those rules. It is entirely
with OSH Act standard requiring daily implementing the final rule. possible that some item for which
inspections of open excavations by a payment is required under § 1910.132(h)

‘‘competent person,’’ employer must XI. Effect on Other OSHA Standards would be determined as exempted from
bargain with union about who would be As noted above, many of OSHA’s payment, and similarly, an item
so designated); Hanes Corp., 260 existing standards specify whether or exempted from payment under
N.L.R.B. 557, 561–562 & n.12 (1982) not the employer is required to provide § 1910.132(h) could be subject to
employer payment under some future standard (general industry, requiring the use of PPE. For ease,
standard. construction, shipyard, marine OSHA is providing a similar list below.
By adding a note in the regulatory text terminals, or longshore) set forth in this Some of these standards specifically
of the various standards, however, if final rule. OSHA believes that this include ‘‘at no cost’’ language and some
OSHA decides to take a different approach is more flexible and will be do not. Employers need to carefully
position on PPE payment in a future clearer to the regulated public. review their obligations under the
rulemaking, it will not need to make a In the preamble to the proposed rule, standards that apply to them.
parallel change to the regulatory OSHA listed many of the OSHA
language of the relevant PPE payment standards that include provisions
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.
TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued

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.
1915.152 .............. 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.
1918.103 .............. 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.
1926.104 .............. 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.
TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued

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 patterns of PPE use and payment. Based exchanging facts or information’’ (41
The vast majority of the comments on the information provided by the CFR 102.3.40(f)).
received from various parties during the panel and OSHA’s enforcement In Public Citizen v. U.S. Dept. of
rulemaking process have been answered experience, the Agency provided Justice, the Supreme Court examined
in other sections of the preamble quantitative estimates of the difference the reach of FACA and concluded that
relating to the specific PPE payment in PPE usage when employers purchase the statute’s definition of ‘‘advisory
issues raised. However, some the PPE versus when employees committee’’ ‘‘[a]ppears too sweeping to
commenters raised a number of issues purchase. be read without qualification’’ (Public
that do not deal directly with PPE A few commenters raised concerns Citizen v. U.S. Dept. of Justice, 491 U.S.
payment, but rather with aspects of about OSHA’s reliance on the 440, 465 (1989). The Court further
rulemaking procedure, OSHA’s information provided by the panel of emphasized that ‘‘[w]here the literal
underlying analysis supporting the experts (See Exs. 12: 173, 188, 189). The reading of a statutory term would
rulemaking, or other issues related to Pacific Maritime Association (PMA) and ‘compel an odd result,’ * * *we must
PPE use. OSHA addresses those United Parcel Service (UPS) both argued search for other evidence * * * to lend
comments below. that the panel’s activities were the term its proper scope’’ (Public
conducted in violation of the Federal Citizen, 491 U.S. at 454). The Court of
A. Procedural Issues Advisory Committee Act (‘‘FACA’’), 5 Appeals for the DC Circuit provided
In developing this final rule, OSHA U.S.C. app. section 1 et seq. (Ex. 12: 173, additional guidance for determining
compiled an extensive rulemaking 189). These comments stated that the whether a panel constitutes a FACA
record. It received hundreds of panel ‘‘[p]rovided information and advisory committee.
comments on the proposal published in discussed employer payment of
personal-PE, which * * * falls within The point, it seems to us, is that a group
1999, conducted four days of hearings,
FACA’s coverage of a ‘[p]anel * * * is a FACA advisory committee when it is
and gave interested parties four months asked to render advice or recommendations,
to file post-hearing comments and established or utilized by one or more
as a group, and not as a collection of
briefs. Subsequently, on July 8, 2004, agencies, in the interest of obtaining
individuals * * * [C]ommittees bestow *
OSHA published a notice to re-open the advice or recommendations * * *’ ’’
* *various benefits only insofar as their
record. The Agency solicited comment (Ex. 12: 173, 189). Pursuant to FACA, members act as a group. The whole, in other
on how the final rule should address notice of advisory committee meetings words, must be greater than the sum of the
PPE that is customarily provided by is to be published in the Federal parts. Thus, an important factor in
employees (69 FR 41221). OSHA Register, and such meetings are to be determining the presence of an advisory
received over 100 comments on this made open to the public (5 U.S.C. app. committee becomes the formality and
issue. OSHA carefully reviewed and section 10(a)). structure of the group (Ass’n of Am.
analyzed the comments and information These commenters misunderstand the Physicians and Surgeons, Inc. v. Clinton, 997
provided in developing the final rule. scope of FACA’s coverage and the role F.2d 898, 913–14 (DC Cir. 1993).
Despite this, some commenters played by the expert panel in the
questioned a few aspects of the rulemaking process. FACA does not OSHA assembled the expert panel for
procedures OSHA used in developing apply to the expert panel described the purpose of gathering data, anecdotal
the proposed rule, as well as the quality above. As explained in the regulations evidence, and other information from
of the information and data relied on by issued by the General Services each expert, which the Agency
the Agency. OSHA addresses these Administration (GSA) to administer considered in drafting this rule. The
comments below. FACA, the statute does not apply to panel was comprised of representatives
‘‘[a]ny group that meets with a Federal from labor unions, employer
1. Expert Panel official(s) where advice is sought from associations, safety equipment
distributors and manufacturers, and
In 1998, OSHA sponsored an expert the attendees on an individual basis and

panel of representatives from industry, not from the group as a whole’’ (41 CFR insurance companies. OSHA provided a
labor, insurance companies, and safety 102–3.40(e). Also excluded from FACA questionnaire to the panel members so
equipment manufacturers and is ‘‘[a]ny group that meets with a the Agency could learn each expert’s
distributors to gather information about Federal official(s) for the purpose of opinions on various issues related to
PPE usage.13 OSHA did not seek a were consistent with information data related to the safety benefit of
consensus answer to each question but provided by the other panelists as well employer-purchased PPE.
rather assessed each expert’s individual as the Agency’s own enforcement In short, OSHA provided ample
response to the questions. The Agency experience. opportunity for the public to pose
was interested in the range of During the public hearing held on questions to the Agency’s
experiences the different sectors had August 10, 1999, OSHA’s opening representatives as well as the Agency’s
had with PPE. Furthermore, OSHA did statement set forth the Agency’s belief designated PPE expert about the specific
not seek policy advice or that the PPE Payment rule would figures used in its benefits analysis, but
recommendations from the panel but prevent thousands of injuries each year none did so. Furthermore, no
simply information to be used in that result from misuse or nonuse of commenters offered alternative point
developing the PPE payment rule. PPE when employees must purchase the estimates of the safety benefits of
As indicated by the Court of Appeals PPE for themselves (Tr. 15). employer payment for PPE. The
for the DC Circuit, it is also important Additionally, in the statement, OSHA rulemaking process and OSHA’s
to consider the formality and structure specifically requested comments on the analyses were transparent. The public
of the panel when determining whether safety advantages associated with was not deprived of the opportunity to
or not the panel is a FACA advisory employer-purchased PPE. comment or question the Agency’s
committee (Ass’n of Am. Physicians and We would also very much like your benefits analysis.
Surgeons, Inc., 997 F.2d at 913–14). comments on the results of the PPE survey, 2. Data Quality
Here, the members of the expert panel which are in the Docket, and we would like
did not meet. To supplement the to know whether you have evidence, either The Society for Human Resource
individual responses of the panel in qualitative or quantitative terms, showing Management (SHRM) expressed concern
that employee-owned PPE is less protective about the quality of the data that OSHA
members, six of the eight members than employer-provided PPE. Are there, for
participated in one conference call with relied on in performing the benefits
example, particular instances where estimate in the proposal, stating ‘‘SHRM
OSHA officials to discuss issues related employees have jeopardized their safety and
to PPE usage, including the different questions whether the proposed * * *
health to avoid the financial loss they would
estimates regarding levels of PPE experience if they had to pay for their own rule will significantly advance
PPE? Is there evidence to suggest that workplace safety since it is not shown
provision by employers. No other
employees take better care of PPE that they to be based upon sound scientific
meetings were held. Had OSHA sought
themselves must purchase? Alternatively, is studies nor is it established that the data
advice or recommendations from the there evidence that employees neglect to take was gathered pursuant to the Data
group as a whole, the Agency would care of PPE paid for by their employers? (Tr. Quality Act requirements’’ (46: 43).
have arranged for longer and more 23). The Department of Labor’s
frequent discussions among panel ‘‘Guidelines for Ensuring and
Following this statement, OSHA took
members, enabling the panel to reach Maximizing the Quality, Objectivity,
questions from the public. During this
agreement and provide consensus-based Utility, and Integrity of Information
questioning period, none of the
advice. OSHA, instead, was seeking data Disseminated by the Department of
attendees posed questions or expressed
and general information about PPE from Labor’’ (Guidelines) (Available at
concerns about OSHA’s estimates of the
the representatives of the different DOL.gov at http://www.dol.gov/cio/
safety advantages of employer-
sectors, which the Agency weighed in programs/InfoGuidelines/
purchased PPE.
drafting this rule. During this same hearing, Dr. Stull InfoQualityGuidelines.pdf) establish
The same commenters raised an testified as OSHA’s designated PPE Departmental guidance for ensuring that
additional issue related to the expert. In accordance with the hearing the quality of information disseminated
transparency of the rulemaking process. procedures published in the Federal by the Department meets the standards
The commenters stated that OSHA Register, Rescheduling of Informal of quality, including objectivity, utility,
relied on information and estimates Public Hearing, 64 FR 27941 (May 24, and integrity. The Guidelines also
provided by one member of the expert 1999), on July 15, 1999, OSHA provided contain specific principles for agencies
panel who was not identified by name notice to the Docket Office of Dr. Stull’s to follow when analyzing safety and
in the report on patterns of PPE usage intent to appear as OSHA’s expert health risks. While much of the
(Ex. 12: 189). OSHA disagrees that it did witness along with his curriculum vitae information used in the final rule was
not provide the public sufficient (Ex. 13: 16). On July 23, 1999, the full developed prior to publication of the
information to comment on the benefits text of Dr. Stull’s testimony was guidelines, the information was
estimates in the proposed rule. submitted to the Docket Office for gathered using techniques that meet the
Pursuant to the request in the review by the public (Ex. 13: 16–1). guidelines.
questionnaire submitted to the After his prepared testimony, Dr. Stull Contrary to the suggestion of SHRM,
panelists, Dr. Jeffrey Stull provided also took questions. A representative of the information presented to support the
estimates of the incidence of non-use or the AFL–CIO asked for specific data safety benefits of the final rule fully
misuse of PPE under different payment regarding the frequency of use of PPE off complies with the Guidelines. The
schemes (See Patterns of PPE Provision of the jobsite (Tr. 73). Subsequently, an benefits analysis in the final rule is
Final Report). He estimated a 40 percent attorney from the Office of the Solicitor based on the best available evidence. In
incidence rate of non-use or misuse of asked Dr. Stull about the safety addition to the expert panel described
employee-purchased PPE and a 15 to 20 advantage of requiring the employer to above, in 1999, OSHA engaged Eastern
percent incidence rate of non-use or pay for PPE (Tr. 80). Even though Dr. Research Group (ERG) to perform a
misuse of employer-purchased PPE. As Stull was asked specifically to discuss large-scale telephone survey to collect
explained in the proposal, OSHA data on PPE use and then to address the industry-specific data describing PPE
adopted these estimates because they
benefits of employer-purchased PPE, usage patterns and the extent to which

13 The responses are summarized in the main text
none of the attendees—including those employers pay for OSHA-required PPE.
of the Patterns of PPE Provision Final Report, and
commenters above that questioned The results were published in the PPE
the complete set of responses from each expert is OSHA’s benefits estimate—took the Cost Survey report on June 23, 1999 and
provided in Appendix A of the Report (Ex. 1). opportunity to ask the witness about made available in the Docket Office (Ex.
14). OSHA subsequently published a employers requiring employees to turn While OSHA has provided the public
Federal Register notice asking the in employer-owned, worn-out PPE with a variety of resources to help them
public to comment on the survey results when issuing replacement PPE. with PPE selection, training, and use,
(64 FR 33810–33813, June 24, 1999). Analyzing the PPE to look for wear the Agency will continue to look for
ERG obtained complete responses patterns or other characteristics that can ways to assist employers and employees
from 3,722 respondents. Three basic help implement improved engineering with PPE issues. The Agency will
types of information were collected controls or obtain more suitable PPE continue to provide information on the
about eight categories of PPE: (1) If the would be a useful method for improving Internet, and welcomes any specific
PPE is used at the respondent’s an employer’s safety and health suggestions on products or training aids
establishment; (2) how many employees program. However, the Agency notes that would assist employers and
use the PPE; and (3) who pays for the that these types of exchange programs employees with PPE issues. However,
PPE (Ex. 12: 14). The survey data need to be set up so that employees are the ultimate responsibility for ensuring
provide industry-specific estimates of not denied needed replacement PPE. the PPE is adequate rests with the
the numbers of employees and For example, if an employee’s PPE is employer.
establishments currently using each PPE damaged due to events occurring at
D. Transmission of Disease Through
type. The data also provide industry- work, the employer cannot deny
Shared Equipment
specific estimates of the numbers of replacement by establishing a work rule
employees and establishments at which that turned-in equipment must be in The Framing Contractors Association
employers pay the full cost of the serviceable condition. Such a policy expressed a concern about PPE that is
equipment, the numbers at which would subvert the final employer shared among various employees and
employees pay for the equipment, and payment rule and the underlying PPE the potential for contaminants or
the numbers at which employers and requirements. infectious disease to be passed from one
employees share the costs of PPE. employee to the next. Their specific
OSHA relied heavily on this data, as C. Guidance To Assist Employers With comment was ‘‘We are also concerned
well as the extensive record that was PPE Issues that if equipment is shared or reused by
compiled during the rulemaking and The SGIA raised the issue of another person, there could be a
updated Bureau of Labor Statistics data, employers who have questions about potential for the transfer of some
to develop the final rule and to OSHA’s PPE requirements, suggesting diseases or possible contagious
determine the costs, benefits, and that: infections caused by the poor hygienic
economic impacts of the rule. This is OSHA needs to provide guidance and other conditions of sweat bands in the hard
precisely the type of information the training aids to assist employers in the hats or contaminates on eye glasses’’
Guidelines require agencies to utilize proper selection, care and use of PPE. The (Ex. 12: 207).
when evaluating risks. The Guidelines vast majority of printers are very small This is a long standing concern that
specifically require agencies to use businesses. In fact 80% having less than 20 occurs when PPE is used by more than
employees, and do not possess the resources one employee. That is why OSHA’s
‘‘[d]ata collected by accepted methods
to undertake a proper evaluation themselves standards require PPE to be kept in a
or best available methods’’ when or hire an outside consultant to do it for
analyzing safety and health risks. them. OSHA needs to provide basic and sanitary condition. The standards do not
Accepted methods include the useful information on this subject (Ex. 12: prohibit the use of shared PPE; therefore
‘‘[t]estimony of experts’’ and ‘‘relevant 116). it is critical that employers ensure that
analyses’’ of pertinent information or PPE is sanitized before it is provided to
OSHA agrees that training aids are
data (Guidelines, p. 16). OSHA is another employee.
needed to help employers, and most
confident that it has relied on the best especially smaller employers, with a E. Taking Home Contaminants on
available information in developing this variety of PPE issues, and the Agency Clothing
rule and that the information presented has various resources and materials
complies with the Guidelines. The Building and Construction Trades
available to help provide PPE Department noted that an employee’s
B. Turning in Old Equipment information. OSHA has two Internet family can be exposed to dangerous
topics pages devoted to PPE, one for materials when an employee takes them
A few commenters raised the issue of
construction and another for general home on his or her PPE, noting:
‘‘exchange systems,’’ where an
industry employers (look for ‘‘personal
employee is required to turn in PPE that [b]ecause employers, employees, and
protective equipment’’ under the
is no longer functional when the OSHA do not always recognize the inherent
alphabetic index at http://
employer provides replacement PPE hazards present in construction work,
www.osha.gov). These include several construction workers routinely expose their
(See, e.g., Exs. 12: 65, 167, 183). The
resources, including the OSHA PPE families unknowingly to contaminants from
SCA commented that:
standards, electronic aids called e-tools the job. Sometimes, these contaminants cause
Many shipyards require employees to turn that will help employers with selection adverse health effects to their families * * *
in their non-serviceable PPE upon receiving and other PPE issues, and links to other If employers provide and control the use of
new equipment. Employer review of used PPE resources on the Internet. OSHA PPE effectively, these hazards could be
PPE has proven to reduce injury at shipyards significantly reduced or eliminated (Ex. 12:
also provides Publication 3151—
by providing employers insight into how 218).
equipment is used by examining what parts Personal Protective Equipment to
of the equipment are worn. This practice employers and employees free of charge. OSHA agrees that employees and
allows employers to identify poor technique The publication discusses PPE hazard their families can be exposed to
and institute engineering controls that can assessment and selection, employee hazardous substances inadvertently
reduce the incidence of injury. SCA training, and various types of PPE that removed from the worksite on an
recommends that the rule protect the may be needed to protect employees. employee’s PPE and many of OSHA’s
employer’s right to continue this practice (Ex. Additionally, PPE is mentioned in many substance specific standards require
12: 65). of OSHA’s hazard specific publications, employers to prevent such
OSHA does not prohibit SCA’s such as those dealing with bloodborne contamination by controlling workplace
practice and OSHA does not object to pathogens and chemical hazards. clothing, providing showers, and
separate dressing areas. However, there Agency becomes involved in trying to B. Adding an Exception for PPE Meeting
is not a comprehensive requirement for prescribe individual rules for PPE such Criteria Reflecting Its Use as a Tool of
employers to control all hazardous as [for] welders, lumber industry the Trade
substances in this manner. The Agency workers, etc. * * * [we] foresee the OSHA also considered adding a
recommends that employers take every agency eventually being in the quagmire specific exemption from the employer
effort to limit the spread of chemical of PPE deviations, exceptions, and payment rule for PPE considered ‘‘tools
contaminants through these and other directives’’ (Ex. 12: 110). of the trade,’’ where the employer could
mechanisms. A representative of the UAW testified demonstrate that (1) the PPE could only
XIII. Other Alternatives Considered in opposition to the performance be used by one employee for reasons of
During the Rulemaking Process oriented approach: customized fit or hygiene, and (2) it is
customary in the industry for employees
During the development of the final The notion that certain PPE items are
to select and pay for the PPE. In
standard, OSHA considered four personal in nature and customarily used off
response to OSHA’s 1999 proposal,
alternatives: (1) An exception for PPE the job is vague, overbroad, ambiguous, hard
several commenters argued that
that is personal in nature and to define, and will generate major difficulties
employers should not be required to pay
customarily worn off the job; (2) an in compliance and enforcement. Molded
for PPE items that employees now
exception for PPE used as a tool of the earplugs, for example, are more personal than
customarily purchase themselves and
trade; (3) requiring payment for all PPE shoes and may also be worn to the
take with them from job to job.
without exception; and (4) exempting employee’s benefit off the job. * * * The
After reviewing these comments,
high-turnover industries. For the UAW believes the alternative regulatory text
OSHA determined that more
reasons discussed below, OSHA rejected on exceptions is worse than the proposed
information was needed on the nature
these alternative approaches. text. * * * However, if the agency insists
on exceptions in the final rule, we would
and extent of such customary practices
A. Requiring Employers To Pay for All prefer the proposed language which would
to fully evaluate the impact of a final
PPE Except PPE the Employer very specifically identify the excepted PPE
rule on various industries. OSHA
Demonstrated Was Personal in Nature rather than the alternative text (Tr. 242–244). reopened the rulemaking record on July
and Customarily Worn Off the Job 8, 2004 and solicited comment on
The proposed rule specifically This view was shared by others as well whether and how a final rule should
requested comment on alternative (See, e.g., Exs. 12: 230, 24A, 24B; Tr. address situations where PPE has been
regulatory text that would have required 281–282, Tr. 344). In its written customarily provided by employees (69
employers to pay for all PPE except comments, ISEA stated that the FR 41221). The Agency received nearly
equipment that the employer proposed alternative would be ‘‘difficult 100 written comments in response to
demonstrated was personal in nature to define and interpret,’’ and that the notice to reopen the record. OSHA
and customarily used off the job (64 FR exempting PPE that is personal in received a variety of opinions on tools
15416). A few commenters reacted nature is ‘‘oxymoronic’’ given that PPE of the trade, however most stakeholders
favorably to this performance language must fit the individual employee in considered the idea of exempting
alternative14. The National Rural order to be effective against hazards (Ex. certain tools of the trade from an
Electric Cooperative Association 12: 230). employer payment requirement as
supported the alternative approach, problematic.
OSHA agrees with these commenters Commenters representing labor
stating that ‘‘[c]learly, any attempt to list that the proposed alternative
all PPE available for exception on a interests generally opposed providing
performance language is too vague. It an exception from the employer
personalized, off-the-job rationale is provides insufficient guidance to
doomed to failure * * * [A]ny payment requirement for tools of the
employers and employees as to what trade. To the extent that any particular
clarification of the general rule should PPE the employer should pay for in a
be by way of restating clearly the tool of the trade is PPE, these
particular circumstance. Furthermore, it commenters stated that employers
general rule and the traditional
would be difficult for compliance should be responsible for providing and
exception available for all PPE that is
officers attempting to enforce the rule, paying for such equipment. They also
personal and able to be used off the job’’
since they would have no clear basis for cautioned that any effort to classify PPE
(Ex. 12: 221). Another commenter
evaluating the employer’s determination as tools of the trade was inappropriate
echoed this opinion, stating that ‘‘OSHA
that the exception was met in a given and would lead to confusion (Exs. 45: 1,
may be starting down a slippery slope
case. OSHA is concerned that the 18, 21, 25, 32, 53). James August of
by excluding certain items considered
vagueness of the alternative text would AFSCME wrote:
personal in nature and not others. There
result in less protection for employees.
are numerous types of PPE including Further discussion on the issue of tools of
Without clearly specifying the parties’’
gloves, clothing, hearing protection the trade will cloud rather than clarify the
responsibilities, safety precautions may issues of what constitutes PPE and
devices, footwear other than safety-toe
footwear, which can be considered not be taken. employers’ duty to provide safe working
In contrast, the final rule sets forth conditions. The term tools of the trade is
personal in nature’’ (Ex. 12: 134).
inappropriate for OSHA to use in the context
Finally, the ASSE stated that ‘‘[i]f the clearly the PPE for which the employer
of a rule requiring employers to pay for most
is not required to pay. These exceptions PPE. Tools of the trade means equipment that
14 With a performance-oriented approach, the are supported by the rulemaking record. is used to perform a specific job or task.
Agency identifies a goal to be achieved but does not Employers and employees will clearly Personal protective equipment, by contrast, is
specify the means by which it must be achieved, in
order to provide employers flexibility. See, e.g.,
understand the PPE that must be paid not used to accomplish a task, but rather to
Secretary of Labor v. Pike Elec., No. O.S.H.R.C. 06– for by employers and the PPE for which protect the worker from the hazards that are
associated with the job (Ex. 45: 1).
0166, 2007 WL 962965, at *10 (O.S.H.R.C. Feb. 5, employers and employees may negotiate
2007) (‘‘The Secretary promulgated § 1910.269(n)(3) payment. As discussed above, OSHA ISEA expressed a similar view, stating
as a performance standard, in which she specifies
the hazard to be protected against while giving the
believes this clarity will result in even that ‘‘[a] tool enables a worker to
employer some leeway in achieving the desired greater benefits for employers and perform a task. PPE protects the worker
result.’’) employees. by using the tool’’ (Ex. 46: 31).
Some employer representatives exemption from employer payment for predominantly been provided by the
commented with similar views. These those items (Exs. 45: 28, 30, 52; 46: 5, employee because of the equipment’s
representatives stated that what is 12). A submission from a large personal nature. The industry considers these
considered a tool of the trade varies telecommunications company argued to be tools of the trade because it is neither
feasible for a different employee to wear the
greatly by industry and even within an that while ‘‘personal’’ items such as welders’’ gloves and leathers each day for
industry. Therefore, OSHA would have gloves, work clothes, and footwear hygienic reasons, nor is it feasible that upon
a difficult time specifically identifying, should be exempt from a payment resigning from the position that an employee
in a single rule, all of the different types requirement, all other PPE, including will leave the leathers behind to be worn by
of PPE that fall into this category (Exs. climbing equipment, should be paid for another individual. (Ex. 46: 32).
45: 3, 17; 46: 1, 3, 9, 13). Many employer by the employer (Ex. 45: 13). A submission from Northrop Grumman
representatives, however, believed that OSHA also received many comments Ship Systems (NGSS) reflected a similar
some PPE should be excluded from an from representatives of the construction view. With respect to welding leathers,
employer payment requirement if the industry who supported an exemption welding jackets, welding sleeves and
PPE meets certain criteria, including for PPE considered to be tools of the gloves and welding shields, NGSS
some criteria that are typically used to trade. However, these comments stated:
describe tools of the trade. For example, indicate that the kinds of PPE regarded
ORC stated: as tools of the trade vary considerably [t]his equipment presents classic examples
among different segments of the of ‘‘tools of the trade,’’ which employees
ORC views the criteria that ‘‘the PPE is traditionally bring with them to the job and
expected to be used by only one employee for construction industry. One contractor take with them when they leave it. There is
reasons of hygiene or personal fit’’ as who builds concrete shells for high-rise good reason for this as these items absorb
reasonable. ORC also views the concept of structures stated that employees hired perspiration and come into direct contact
working for multiple employers as as carpenters are required to have their with the employee’s skin. As such, this
reasonable. Equipment that must be fitted to own 4-point harness system, 2-legged equipment would be unsuitable for reissue to
an individual worker or which becomes, lanyards, and positioning chains or another employee.
through use, unsuitable for use by another devices (Ex. 45: 5). A representative Similarly, other items such as hardhats and
worker for hygienic reasons, coupled with a safety glasses are individual and personal in
worker’s employment by, and frequent
from the NAHB wrote:
nature since they must be adjusted to
movement between, several different There are several articles of PPE that are conform to the employee’s physical
employers, are criteria which argue against considered ‘‘tools of the trade’’ in residential dimensions. They, too, must be sanitized and
the general requirement that each employer construction. These include: hard hats, safety repaired prior to reissue. With approximately
has an absolute responsibility to provide and glasses, work boots/shoes, and general duty 20,000 employees, NGSS would incur
pay for all PPE (Ex. 46: 47). gloves. There are several reasons why these exorbitant expenses. Moreover, the
articles of PPE are thought to be tools of the traditionally high turnover rate intrinsic to
ORC recommended that OSHA include trade and should be excluded. First, it is
a general exemption for PPE meeting shipbuilding aggravates this problem (Ex. 46–
customary for workers to bring these items to 39).
these criteria, but that OSHA not the job-they are normally supplied (and paid
include an exemption based on for) by workers and are carried with them OSHA believes that a PPE payment
customary industry practice, as that from job to job or from employer to employer. rule exempting equipment meeting the
would compromise the clarity of the Workers are typically required to supply criteria described above would fail to
rule. their own tools and equipment for the job clearly indicate to employers and
Two other representatives described they are performing and PPE is considered employees when PPE had to be paid for
common practices in their industries just another tool in their toolbox (Ex. 45: 26). by employers, and would likely result in
with respect to payment for PPE. The According to a representative of the the Agency having to render numerous
International Association of Drilling Independent Electrical Contractors, Inc., interpretations of the rule as it applied
Contractors stated that employees in the practices vary among establishments to specific situations. For example,
oil and gas well industry provide their engaged in electrical construction, with while there was some agreement in the
own hard hats, safety boots, gloves, some employers paying for PPE while record that certain climbing gear and
coveralls (work clothes), general-use others require employees to provide welding equipment were considered
work gloves, winter protection for cold hard hats, safety glasses, gloves, boots, tools of the trade in some industries, the
weather and rain gear, including rubber and appropriate clothing (Ex. 45: 36). record reflects considerable
boots, for wet weather (Ex. 46: 30). A Several representatives of the disagreement as to the other types of
written submission from the Tree Care maritime industry supported an PPE that are considered tools of the
Industry Association stated that ‘‘[i]t is exemption for welders’’ PPE, indicating trade.
a longstanding practice for the employee that it is customary in the industry for The record also shows that PPE
to show up for work in boots and other welders to provide their own PPE. A considered tools of the trade in one
work attire that he or she has paid for’’ representative from the SCA stated: industry may not be considered tools of
(Ex. 46: 44). The commenters also SCA believes that safety equipment
the trade in another industry. Therefore,
explained that employees frequently considered to be tools of the trade should be while welding equipment may be
move to perform work for multiple excluded from the employer requirement for considered tools of the trade in parts of
employers. payment. SCA members consider Personal the maritime industry, they may not be
Two representatives of electric Protective Equipment (PPE) and tools of the considered tools of the trade in general
utilities stated that it was common trade to be two separate categories of industry (e.g., manufacturing plants).
practice for employers to require equipment. PPE is safety equipment provided There is also evidence in the record that
employees to provide climbing by the employer that generally can be even within the same industry, there is
equipment including lineman’s belts, sanitized and reissued. A tool of the trade is disagreement as to what is considered a
viewed as a piece of safety equipment that is
leather work gloves, gaffs, hooks, and highly personal in nature and generally can
tool of the trade. Employers would have
boots (Exs. 45: 37, 42). Several other not be used by another employee * * * great difficulty determining whether a
general industry employers stated that it Tools of the trade for welding operations, particular type of PPE is considered a
was customary for employees to provide such as face shields/goggles, fire resistant tool of the trade and whether they
certain types of PPE and supported an shirts/jackets, sleeves and leather gloves have would be responsible for paying for it.
It would also be difficult for OSHA to standards to require employers to pay for PPE changes from day to day depending
verify the types of PPE that are * * * Treating PPE differently from other upon its manpower needs and the
customarily provided and paid for by controls is illogical and violates the hierarchy seniority, skills and personal
of controls * * * OSHA’s proposal to
employees in a given industry. These preferences of available employees (Exs.
continue the exemption for shoes and glasses
differences in the way that certain PPE is a lost opportunity to correct a previous
12–172, 12–173). The NMSA stated
is treated in specific industries makes error, and restore a logical scheme for further that it was not possible to devise
this alternative impractical. allocating costs of protection against hazards a system in which employer-purchased
Accordingly, OSHA believes that this (Ex. 23). PPE could be distributed to employees
alternative is too vague and would at the beginning of a work-shift,
A representative of the Teamsters stated,
create confusion among employers and collected at the end of a work-shift, and
‘‘[w]e believe that all PPE required to
employees. sanitized and redistributed to different
protect employee health and safety
employees at the beginning of the next
C. Requiring Payment for All PPE should be paid for by the employer
shift (Ex. 12: 172). The NMSA asserted
Without Exception regardless of whether they are personal
that employers would have no choice
OSHA considered requiring in nature and/or customarily used off
but to issue new PPE to employees
employers to pay for all PPE, without the job’’ (Tr. 342).
OSHA rejected this alternative for every day at substantial expense and
any exceptions. Many commenters with no additional safety benefit (Id.).
supported this alternative (See, e.g., Exs. three main reasons. First, as explained
The United States Maritime Alliance
12: 100, 19, 22A, 25, 26A, 37; Tr. 173– in the Legal Authorities section, OSHA
Limited (USMX) argued that a generic
174, Tr. 241, Tr. 320, Tr. 366, Tr. 463– does not agree that the OSH Act can be
PPE payment requirement would be
464). They argued that PPE is part of the read to require employers to pay for all
difficult for the maritime industry given
hierarchy of controls. Therefore, just as PPE without exception. The Agency
many employees work for multiple
OSHA would not ask an employee to does not believe that Congress intended
employers:
pay for engineering or administrative for employers to pay for the types of
PPE exempted in the standard, such as [I]n the marine cargo handling industry,
controls, the Agency should not expect labor pools are often utilized to assign labor
employees to pay for any PPE. For everyday work clothing and weather-
to a certain workplace. It is not uncommon
example, the AFSCME strongly objected related equipment. Second, requiring
for a single employee to work at a different
to any exceptions, stating: employer payment for all PPE without employer’s facility from day to day or even
exception would not be a cost effective shift to shift. As such, any standard that
According to OSHA’s own reasoning, there means of protecting employees. The cost requires action, such as payment for PPE on
is no rational basis for distinguishing the use
of requiring employers to pay for safety an ‘‘employer’’ creates significant confusion
of PPE from other types of controls, and the
responsibility of paying for the protection shoes, certain everyday clothing, in an industry where a single employee may
weather-related protective gear, have several employers. That is one reason
should, in each case, rest with the employer.
Safety-toe protective footwear and safety sunscreen, etc. would be quite high and why local port management associations are
eyewear are clearly forms of PPE. Therefore, OSHA believes unnecessary given often involved in providing such equipment
(Ex. 45: 40).
employers should be required to pay for existing practices in most industries.
safety-toe footwear and safety eyewear. The Agency estimates that requiring The NAHB made a similar argument
Employers should be required to pay for such employers to pay for protective safety- on behalf of its members. The NAHB
protective foot and eyewear regardless of toe footwear would have added $220 stated that some firms process 15 to 50
whether such footwear is worn off the job- employees a week and that many of
site (Ex. 12: 100). million to the cost of the final rule.
Finally, the PPE exempted in the final them quit or are terminated in a matter
During the public hearing, Jackie rule is the type of PPE OSHA has of hours. Providing new PPE to each
Nowell, Director of the Occupational historically exempted from employer new employee at a cost of $15 per
Safety and Health Department of the payment. OSHA sees no reason based person would be burdensome, the
UFCW testified: on the rulemaking record here, to NAHB argued, and would not lead to
OSHA standards are not ambiguous about deviate from its longstanding position greater use of the equipment (Ex. 12:
who pays for engineering or administrative that certain PPE should be excluded 68). A representative of the oil and gas
controls, and we don’t believe they are from employer payment. drilling industry reported that the
ambiguous about the payment for PPE. The industry traditionally has a high
OSH Act requires employers to provide a safe D. Exempting High-Turnover Industries turnover rate, with one firm reporting an
and healthy workplace for American From an Employer Payment average turnover of almost 50 percent
workers. Requirement
Again, employers are mandated to control (Ex. 12: 9). A firm in this industry
hazards through a hierarchy of controls, Finally, OSHA considered exempting maintained that the cost of providing
preferably engineering and administrative. high-turnover industries from the PPE three to four pairs of cotton gloves per
And when those fail to abate or reduce the payment requirement. The record shows week to its 4,300 well-servicing
hazard, then the employer is allowed to that one common reason that employers employees would cost $804,960
utilize PPE, but also to pay for it (Tr. 173– do not pay for PPE is high turnover, annually and would have a significant
174). such as in situations involving day economic impact (Ex. 12: 19).
In their post-hearing comments, the labor, or job- or situation-contingent OSHA analyzed this alternative and
United Automobile, Aerospace & hiring. OSHA received many comments determined that it was not appropriate
Agricultural Implement Workers of expressing concern about the costs to to deny the benefits of the final rule to
America (UAW) also urged OSHA to employers in high-turnover industries of certain employees simply because they
eliminate the proposed exemptions. the payment requirement. worked in industries with ‘‘high
They argued: According to the National Maritime turnover.’’ The OSH Act does not
The UAW believes that the employer’s

Safety Association (NMSA) and the contemplate exempting employers from
responsibility to pay for necessary and Pacific Maritime Association (PMA), an their obligations to protect employees
required PPE is consistent with both OSHA employer-payment requirement is for that reason alone. This is
law, logic and good safety practice * * * impractical in a hiring hall industry particularly true when there is no
[M]any states already interpret their because each employer’s work force evidence that the final rule will create
feasibility problems in any of the statutory and regulatory payment to employers. Section 10(a) (29 U.S.C.
industries affected. schemes. Second, the rule is an 659(a)) refers only to an employer’s
Furthermore, such an exemption ancillary provision further reducing the opportunity to contest a citation and
would be impractical. The rulemaking risks addressed by the existing PPE notification of a proposed penalty.
record did not provide enough standards. To be justified as an ancillary Section 17 (29 U.S.C. 666) provides for
information for OSHA to specifically provision, the rule need only be the assessment of civil monetary
identify high turnover industries for reasonably related to the PPE standards’ penalties only against employers.
purposes of the exemption. In remedial purpose. Part C of this section OSHA’s enforcement authority against
particular, turnover depends greatly on discusses the final rule’s health and employers—not employees—
size of employer, occupation, and safety benefits. underscores Congress’s intent to hold
geographic area. Thus, for some large employers responsible for creating safe
B. The Final Rule Codifies an Employer and healthful working conditions.
employers in a particular industry,
Payment Requirement Implicit in the This statutory scheme is further
turnover may be low; however, for
OSH Act and the Wording of the supported by the OSH Act’s variance
smaller employers in the same industry
Existing PPE Standards provisions, which provide that
there may be extremely high turnover.
Furthermore, in the same industry, there 1. An Employer Payment Requirement employers—but not employees—may
might be significant differences in Is Derived From the Statutory apply to OSHA for a temporary or
turnover depending upon particular Framework permanent variance from compliance
jobs. So, welders in the construction with OSHA standards. Temporary
In the Agency’s view, the final rule variances allow employers additional
industry may experience great turnover, does no more than clarify a requirement
but crane operators may not. Finally, in time to come into compliance with a
legally implicit under the Act. The Act standard when the employer
some areas of the country, there is high makes employers solely responsible for
turnover in a particular industry, but demonstrates that it cannot do so by the
the means necessary to achieve safe and effective date due to the unavailability
only moderate turnover in the same healthful workplaces. This includes
industry in another area of the country. of professional or technical personnel or
financial responsibility. Employers are materials or because of necessary
These real differences in turnover rates therefore responsible for providing at no
make it difficult for OSHA to construction or alteration of facilities
cost to their employees the personal (29 U.S.C. 655(b)(6)). Permanent
specifically exempt certain industries protective equipment that is required
from an employer payment requirement. variances provide employers with
because of workplace hazards. alternative means to protect their
OSHA was also unable to identify a The language of the Act and its
rate that it could consider ‘‘high employees in lieu of specific OSHA
framework are indicia of this standards, provided these alternative
turnover’’ for purposes of the requirement. At section 2(b) (29 U.S.C.
exemption. Turnover rates vary greatly; measures are as protective as the
651(b)), Congress declared its purpose measures set forth in the relevant
they can be as low as 5–10 percent or and policy to ‘‘[a]ssure so far as possible
as high as 200 percent a year. The standards (29 U.S.C. 655(d)). These
every working man and woman in the provisions recognize that employers are
Agency was not able to identify an Nation safe and healthful working
appropriate cut-off point for high responsible for complying with, and
conditions and to preserve our human paying for compliance with, OSHA
turnover that could be used as a basis resources.’’ To that end, Congress
for exempting industries from an standards and provide them flexibility
authorized the Agency to issue safety in achieving this compliance.
employer payment requirement. and health standards and required each
Furthermore, turnover rates fluctuate The Supreme Court confirmed that
employer to comply with the standards Congress intended employers to pay for
yearly. Thus, in one year an industry (29 U.S.C. 654(a)(2)). compliance with safety and health
might have a 50 percent turnover rate, The Act defines an occupational standards. In reviewing OSHA’s cotton
but a 25 percent rate in the following safety and health standard as one which dust standard, the Court interpreted the
year. The Agency was unable to devise ‘‘[r]equires * * * the adoption or use of legislative history as showing that
alternative language that could account one or more practices, means, methods, Congress was aware of the Act’s
for these fluctuations while providing operations, or processes, reasonably potential to impose substantial costs on
employers with sufficient notice of their necessary or appropriate to provide safe employers but believed such costs to be
compliance obligations. For all of these or healthful places of employment’’ (29 appropriate when necessary to create a
reasons, OSHA rejected this alternative. U.S.C. 652(8)). Congress gave to OSHA safe and healthful working environment
XIV. Legal Authority broad discretion to set standards to (American Textile Mfrs. Inst., Inc. v.
prevent occupational injury and illness Donovan, 452 U.S. 490, 519–522, 101 S.
A. Introduction and to charge to employers the cost of Ct. 2478, 2495–96, 69 L.Ed.2d 185
This rule is limited to addressing who reasonably necessary requirements. (1981) (Cotton Dust). See also Forging
must pay for the PPE that is already United Steelworkers v. Marshall, 647 Industry Ass’n. v. Secretary of Labor,
required by existing PPE standards. The F.2d 1189, 1230–31 (DC Cir. 1980), cert. 773 F.2d 1436, 1451 (4th Cir. 1985)
rule does not require any new type of denied, 453 U.S. 913(1981) (Lead). (Noise); Lead 647 F.2d at 1230–31).
PPE to be purchased. Nor does the rule In addition to the statute’s Several statements by members of
impose any new requirements for PPE requirement that employers comply Congress demonstrate that employers
use. with standards, sections 9, 10 and 17 of would be expected to bear the costs of
The final rule is justified on two the Act (29 U.S.C. 658, 659, 666) set out compliance with OSHA standards.
different bases. First, the rule is a detailed scheme of enforcement solely Senator Yarborough stated that ‘‘[w]e
interpretive in that it clarifies and against employers. Atlantic and Gulf know the costs [of complying with the
implements a pre-existing employer Stevedores, Inc. v. OSHRC, 534 F.2d Act] would be put into consumer goods
payment requirement implicit in the 541, 553 (3d. Cir. 1976). Sections 9(a) but that is the price we should pay for
statutory scheme and the language of and 10(a) (29 U.S.C. 658(a), 659(a)) the 80 million workers in America.’’ (S.
OSHA’s PPE standards. Part B of this provide for the issuance of citations and Rep. No. 91–1282, 91st Cong., 2d Sess.
section discusses these implicit notifications of proposed penalties only (1970); H.R. Rep. No. 91–1291, 91st
Cong., 2d Sess. (1970), reprinted in to reduce or eliminate significant achieving safe and healthful
Senate Committee on Labor and Public workplace health and safety threats. workplaces’’ (Ex. 12: 190).
Welfare, Legislative History of the This includes a concomitant financial The AFL–CIO commented that ‘‘[t]he
Occupational Safety and Health Act of responsibility to pay for the measures language, intent and legislative history
1970, (Committee Print 1971) at 444. necessary to that end. Congress plainly of the Act all support the principle that
Senator Cranston stated: viewed the costs of compliance with the employers are required to provide and
(T)he vitality of the Nation’s economy will Act as a type of ordinary business pay for the measures necessary to
be enhanced by the greater productivity expense that employers would be protect workers by controlling hazards
realized through saved lives and useful years expected to bear in order to reduce which pose a risk of injury, illness, or
of labor. When one man is injured or employee exposure to safety and health death to their employees’’ (Ex. 12: 19–
disabled by an industrial accident or disease, hazards (Cotton Dust, 452 U.S. 490, 1). Therefore, the AFL–CIO supports a
it is he and his family who suffer the most 519–521 (1980)). rule that ‘‘codifies an employer’s
immediate and personal loss. However, that PPE is a means to ensure the safety responsibility to pay for personal
tragic loss also affects each of us. As a result
of occupational accidents and disease, over
and health of employees, just as protective equipment’’ (Id.).
$1.5 billion in wages is lost each year (1970 engineering, administrative, and work Some commenters, however,
dollars), and the annual loss to the gross practice controls are. There is no disagreed that the OSH Act sets forth
national product is estimated to be over $8 principled distinction between these requirements on cost allocation. As a
billion. Vast resources that could be available other control methods and PPE for matter of statutory construction, some
for productive use are siphoned off to pay purposes of cost allocation (See UAW v. commenters suggested that the only
workmen’s compensation and medical Pendergrass, 878 F.2d 389, 400 (D.C. place Congress set forth requirements
expenses * * *. Only through a related to costs was in section 6(b)(7) for
comprehensive approach can we hope to
Cir. 1989)). For example, in the Cancer
effect a significant reduction in these job Policy rulemaking in 1980, OSHA found medical examinations. Section 6(b)(7)
death and casualty figures (Id. at 518–19). no distinction, for payment purposes, provides that ‘‘[a]ny such standard shall
between engineering controls and prescribe the type and frequency of
Senator Eagleton stated it even more medical examinations or other tests
personal protective equipment
clearly: ‘‘The costs that will be incurred which shall be made available, by the
necessary to protect employees from
by employers in meeting the standards employer or at his cost’’ (29 U.S.C.
exposure to carcinogenic substances:
of health and safety to be established 655(b)(7)). OSHA disagrees with these
under this bill are, in my view, The requirement that employers pay for
protective equipment is a logical corollary of commenters.
reasonable and necessary costs of doing These comments, taken to their
the accepted proposition that the employer
business’’ (116 Cong. Rec., at 41764, must pay for engineering and work practice logical extreme, suggest that employers
Leg. Hist. 1150–1151). controls. There is no rational basis for would pay for nothing under the Act
Furthermore, Congress considered distinguishing the use of personal protective except medical examinations or other
uniform enforcement against employers equipment [from other controls]. The goal in tests. That means that employees could
crucial because it would reduce or each case is employee protection; be asked to pay for everything else—
eliminate the disadvantage that a consequently the responsibility of paying for
the protection should, in each case, rest on their own training, engineering controls,
conscientious employer might air sampling, the setting up of regulated
experience where inter-industry or the employee (45 FR 5261, Jan. 22, 1980).
areas, housekeeping measures,
intra-industry competition is present. Many commenters to the rulemaking recordkeeping, and all other protective
‘‘[M]any employers—particularly agreed that the OSH Act requires measures—required under the Act and
smaller ones—simply cannot make the employer payment for PPE. The ASSE OSHA standards. Such a reading of the
necessary investment in health and agreed that the OSH Act’s mandate Act would be contrary to the purpose
safety, and survive competitively, requiring employers to provide a safe and legislative history of the Act placing
unless all are compelled to do so’’ (Leg. and healthful workplace for their responsibility for compliance with
Hist. at 144, 854, 1188, 1201). employees ‘‘[i]ncludes the financial employers, as discussed above. The
Nothing in the legislative history obligation of employers to provide argument was in fact rejected in Lead,
suggests that Congress intended that controls to address hazards that could 647 F.2d at 1232:
compliance costs should be borne by cause injury or physical harm to their
employees. Congress sought to maintain employees. The majority of ASSE Th[e] maxim (expressio unius est exclusio
the standard of living of working men alterius) [ ‘‘the expression of one is the
members reviewing this proposal exclusion of another’’] is increasingly
and women and did not contemplate generally agreed that most PPE is considered unreliable * * * for it stands on
that employees’ pay and benefits would covered under the Act’’ (Ex. 12: 110). the faulty premise that all possible
be sacrificed to achieve safe and AFSCME stated that it alternative or supplemental provisions were
healthful workplaces. For example, the ‘‘wholeheartedly concurs’’ with OSHA’s necessarily considered and rejected by the
Senate report notes that employers are rationale that ‘‘[t]he requirement that legislative draftsmen. Thus it is incorrect to
bound by the ‘‘general and common employers pay for PPE is a logical say that because Congress expressly required
duty to bring no adverse effects to the corollary of the accepted proposition that standards prescribing the type and
frequency of medical examinations or other
life and health of their employees that the employer must pay for tests shall be made available, by the
throughout the course of their engineering and work practice controls’’ employer or at his cost, that Congress
employment. Employers have primary (Ex. 12: 100). prohibited OSHA from using its broad
control of the work environment and The International Brotherhood of rulemaking authority to require employer
should ensure that it is safe and Teamsters stated that ‘‘[r]equiring payment for other employee rights, where it
healthful’’ (Leg. Hist. at 149). employers to provide personal determines, after rulemaking, that such rights
Therefore, as seen in the statutory text protective equipment at no cost to are necessary to enable the agency effectively
to carry out its responsibilities.
and legislative history, Congress employees will only clarify the OSH
conclusively determined that OSHA Act’s implicit legal requirements and its Some commenters claimed that there
regulation is necessary to protect legislative history, as discussed in the are fundamental distinctions between
employees from occupational hazards preamble. The OSH Act clearly charges engineering controls and PPE that
and that employers should be required employers with the responsibility for warrant different cost treatment under
the Act. UPS argued that the primary the many references to employee These commenters misunderstand
difference between engineering changes responsibilities in the statute (Exs. 12: this rule and the requirements of the
and PPE is ‘‘[c]lear and simple: 189; 46: 43) In particular, these OSH Act. The issue is not whether a
employers own the equipment they commenters cited the language of particular requirement deals with
make engineering changes to—it is part section 5(b) of the Act, which requires economics in some way, the proper test
of their facility—but by definition [PPE] that each ‘‘[e]mployee shall comply is whether the requirement will help
typically is owned by employees: that is with occupational safety and health reduce significant risk of injury and
why it is personal’’ (Ex. 12: 189, p. 19). standards and all rules, regulations, and death, thereby protecting the safety and
The SHRM stated that PPE, unlike orders issued pursuant to this Act health of employees. In fact, Congress
engineering or work practice controls, which are applicable to his own actions confirmed this by specifying that
‘‘[i]s in the personal care of the and conduct’’ (29 U.S.C. 654(b)). employers must bear the costs of
employee, and the employee plays a There is no doubt that Congress complying with OSHA standards. As
direct role in the selection, use, sizing, expected employees to comply with explained more fully below, this rule is
adjusting, care, storage, and control of safety and health standards. It is also directly related to protecting the safety
[the] PPE.’’ SHRM also stated that ‘‘[t]he true that Congress believed that and health of employees and will result
employee is generally in a far better employee cooperation in safety and in substantial safety benefits.
position than the employer to ensure health was critical to ensuring safe and These comments also do not consider
that personally-assigned PPE is properly healthful workplaces. What Congress the approximately 20 general industry
maintained, used, and stored’’ (Ex. 46: did not intend, however, was for safety and health standards OSHA has
43, p. 19–20). employees to bear the cost of ensuring issued requiring employers to pay for
OSHA is not convinced by these that their workplaces were safe and PPE. Many of these standards have been
arguments. As an initial matter, OSHA healthy. That is why section 5(b) of the challenged and upheld by the courts.
disagrees that by definition PPE is Act focuses on an employee’s ‘‘own For example, in Noise, 773 F.2d at
typically ‘‘owned’’ by the employee. In actions and conduct.’’ It is also why 1451–1452, the court upheld the
fact, the record in this rulemaking Congress made it clear that the requirement in the hearing conservation
suggests the opposite. With a few ‘‘[e]mployee-duty provided in section standard that employers must pay for
exceptions—safety-toe shoes and 5(b) [does not] diminish in any way the hearing protectors, finding that the
everyday clothing—employers typically employer’s compliance responsibilities requirement was reasonably related to
provide the PPE to their employees and or his responsibility to assure the standard’s purpose of reducing the
expect the employees to return the PPE compliance by his own employees. risk associated with occupational noise
at the end of the day or at the ‘Final responsibility for compliance exposure. No court has struck down
completion of their work for the with the requirements of this act
OSHA’s standards requiring employers
employer. The record does not support to pay for PPE because they were
remains with the employer’ ’’ (S. Rep.
UPS’s position that employees typically outside of the Agency’s statutory
No. 91–1282, U.S. Cod Cong. & Admin.
‘‘own’’ such PPE as protective eye wear, mandate.
News 1970, p. 5187).
chemical protective gloves, harnesses,
The role of employers and employees a. Exceptions
lanyards, ladder safety device belts,
rubber gloves and sleeves, logging under the OSH Act was specifically As set forth in more detail in section
chaps, supplied air respirators, addressed by the Third Circuit in V, the final rule contains certain
encapsulating chemical protective suits, Atlantic & Gulf Stevedores, Inc. v. exceptions to the general rule that
life preservers and life jackets, retrieval OSHRC, 534 F.2d 541 (3d. Cir. 1976). In employers must pay for required PPE.
systems, and the like. OSHA is also not holding that Congress did not confer These exceptions include certain safety-
swayed by SHRM’s arguments that power on OSHA to sanction employees toe protective footwear and prescription
employees are in a better position to for violations of the Act, the court set safety eyewear, logging boots, and
maintain, use, and store PPE. In fact, the forth clearly that employers are everyday clothing such as long pants,
existing PPE standards place on ultimately responsible for ensuring that long sleeve shirts, and normal work
employers the responsibility for their workplaces are safe and healthy. boots. Including these exceptions to the
ensuring proper fit, use, and Employers thus cannot shift financial final rule is consistent with the OSH Act
maintenance of PPE. responsibility for ensuring safe and and its cost allocation scheme.
The crux of OSHA’s position is that healthful workplaces to their As stated above, the Agency agrees
PPE is an important control measure employees. with the general principle that
required by OSHA standards. While PPE Finally, and more fundamentally, employers’ legal responsibility for
is considered the last line of defense some commenters suggested that this compliance with OSHA standards
and OSHA has stated a preference for rule was purely an economic rule and implies a concomitant financial
engineering, work practice, and that the OSH Act does not give OSHA responsibility to pay for the measures
administrative controls, it is still an authority to resolve economic issues. necessary to that end. OSHA also
important type of protection utilized by UPS and PMA both asserted that concludes that this requirement applies
millions of employees every day. ‘‘OSHA’s health and safety mandate to most types of PPE. PPE cannot be
Simply because PPE is not a part of or does not permit it to invade collective categorically segregated from other
attached to an employer’s facility does bargaining with this purely economic types of control measures for payment
not mean that it provides a different rule’’ (Exs. 12: 173, 189). The SCA had purposes. This is one of the
protective function. Like other control concerns about OSHA’s ‘‘[a]ttempt to fundamental underpinnings of the final
measures, it protects employees from regulate wages * * * which is not part rule. OSHA has concluded that a
safety and health hazards in the of OSHA’s mandate and accordingly, general employer payment requirement
worksite and should not be treated should not be subject to OSHA will effectuate the OSH Act’s implicit
categorically differently for payment regulation’’ (Ex. 12: 65). The NMSA cost-allocation scheme and reduce the
purposes than other control measures. stated that ‘‘OSHA simply has no risk of injuries, illnesses, and fatalities.
Other commenters contended that jurisdiction over employee However, acceptance of these
OSHA’s interpretation of the Act ignores compensation’’ (Ex. 12: 172). principles does not mean that the OSH
Act prohibits exceptions to the circumstances, this equipment has decided. OSHA received only a few
employer-payment rule. There are either been historically exempted by comments on this discussion; these
certain narrow circumstances where OSHA from employer payment (e.g., comments asserted that the Union Tank
OSHA believes that Congress did not safety-toe shoes), the item is often used decision was correct in not reading the
intend for employers to have to pay for off the job, or is equipment that term ‘‘provide’’ as requiring employer
PPE. And Congress expected OSHA to employees must wear to work regardless payment. OSHA continues to agree with
make reasonable judgments as to the of the hazards found. For example, an the discussion in the proposal and
types of PPE that fit in this category. employee who works at a computer incorporates it in this final rule.
OSHA has recognized these situations terminal may have to wear a pair of long Nevertheless, OSHA reiterates here the
in the past and the record in this pants to work (due to a company main parts of the discussion because it
rulemaking supports these policy), even though wearing long pants further supports OSHA’s interpretation
determinations. is not required for safety reasons. But, of the OSH Act as requiring employers
In its earliest interpretation of the a tree trimmer may have to wear long to pay for virtually all PPE.
issue in the Budd case, the Agency pants to work to provide protection From 1974 through October 1994,
stressed that safety-toe shoes have from tree branches and limbs, etc. In OSHA made a variety of statements on
certain special characteristics that both instances, the employee has to the question of employer payment for
separate it from most PPE for purposes wear long pants to work. However, with PPE. The most authoritative statements
of cost allocation. In her brief in Budd, respect to the tree trimmer, the long of the Agency’s position are contained
the Secretary stated that: pants also serve a protective function. In in OSHA’s safety and health standards
the Agency’s view, Congress simply did promulgated through notice and
[b]y tradition, in this country shoes are
considered unique items of a personal nature. not intend for employers to have to pay comment. Since 1978, OSHA has
Safety shoes are purchased by size, are for this type of equipment, even though promulgated many safety and health
available in a variety of styles, and are it admittedly serves a protective standards explicitly requiring employers
frequently worn off the job, both for formal function in certain circumstances. to furnish PPE at no cost.15 In these
and casual wear. Furthermore, it is neither Congress intended the Agency through rulemakings, OSHA concluded that this
feasible for a different employee to wear the its rulemaking function and in its explicit requirement effectuates the cost
shoes each day nor feasible that upon standard-setting discretion to identify allocation scheme of the OSH Act.
resigning from the position an employee will In 1978, OSHA promulgated a
leave the shoes behind to be worn by another
those narrow circumstances where
payment can be left to negotiation standard to protect employees from
individual.
between the employer and employee. cotton dust. That rule required
In the safety standard on logging These circumstances include such employers to pay for respirators when
operations, OSHA determined that considerations as whether the items are necessary to protect employees from
logging employers should pay for normally used off the job or are items exposure to this hazardous substance
protective equipment for the head, eyes, employees must wear to work regardless (43 FR 27350, 27387 (June 23, 1978)).
face, hands, and legs, but should not be of the hazards found. The Agency noted that the language
required to pay for logging boots. OSHA OSHA’s position in this final rule is requiring employers to provide
excepted logging boots from among the also consistent with its past respirators ‘‘[a]t no cost to the employee
types of equipment that employers must interpretations of the issue, as detailed * * * makes explicit the position which
purchase for several reasons. The above. Since OSHA’s earliest has long been implicit in all OSHA
Agency found that logging boots, unlike interpretations on employer payment for health standard proceedings under
other types of personal protective PPE, it has made clear that there are section 6(b) of the Act’’ (Id). (internal
equipment, are not reusable. OSHA also some exceptions to the employer quotations omitted) The Agency
noted that logging boots are readily payment rule. The principle of expressed a similar view in the
portable, and unlike head and leg employer payment cannot be stretched preambles for the 1,2-Dibromo-3-
protection, are sized to fit a particular so far that it applies to all protective chloropropane (DBCP) standard (43 FR
employee. Finally, the Agency noted equipment, in all circumstances, at all 11514, 11523 (March 17, 1978)), the
that there was evidence in the record times. lead standard (43 FR 52952, 52994 (Nov.
that employees use their logging boots 14, 1978)), the inorganic arsenic
away from work. 2. An Employer Payment Requirement
standard (43 FR 19584, 19619 (May 5,
In the 1994 memorandum ‘‘Employer Is Implicit in the Wording of Existing
1978)), the benzene standard, (43 FR
Obligation To Pay for Personal Standards
Protective Equipment’’ OSHA also The requirement that employers pay 15 See 29 CFR 1910.95(i)(1), (i)(3) (hearing
stated its policy that ‘‘[w]here for the means necessary to achieve conservation); 29 CFR 1910.1001(g)(1), (g)(2)(i),
equipment is very personal in nature compliance is implicit in the statute (h)(1) (asbestos); 29 CFR 1910.1018(h)(1), (h)(2)(i),
(j)(1) (inorganic arsenic); 29 CFR 1910.1025(f)(1),
and is usable by workers off the job, the itself, and therefore, is properly an (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1)
matter of payment may be left to labor- implied term of every occupational (cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h)
management negotiations.’’ The safety or health standard. Properly (benzene); 29 CFR 1910.1030(d)(3)(i), (d)(3)(ii)
memorandum also gave examples of this viewed, this final rule clarifies an (bloodborne pathogens); 29 CFR 1910.1043(f)(1),
(f)(3) (cotton dust); 29 CFR 1910.1044(h)(1), (h)(2),
type of equipment, including safety employer payment requirement that had (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29
shoes, non-specialty safety glasses, and previously been implicit in those CFR 1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR
cold-weather outerwear. standards. 1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR
OSHA does not believe that Congress In the proposed rule, the Agency set 1910.1048(g)(1), (h) (formaldehyde); 29 CFR
1910.1050(h)(2)(i), (i)(1) (4,4, methylenedianiline);
intended for employers to have to pay forth in detail its interpretive history on 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29 CFR
for the types of PPE excepted in the the issue of employer payment for PPE. 1910.1052 (g)(1), (h)(1) (methylene chloride); 29
final rule. This list includes non- It also discussed the holding in the CFR 1910.146(d)(4)(iv) (confined spaces); 29 CFR
specialty safety-toe shoes and boots, Budd decision and why, in OSHA’s 1910.156(e)(1)(i) (fire brigades); 29 CFR
1910.266(d)(1)(iii), (d)(1)(iv), (d)(1)(vi), (d)(1)(vii)
everyday clothing, cold weather gear, view Secretary of Labor v. Union Tank (logging); 29 CFR 1910.134(c)(4) (respiratory
and normal work boots. While serving a Car Co. (18 O.S.H. Cas. (BNA) 1067 protection standard); 71 FR 10100 (Feb. 24, 2006)
protective function in certain (Rev. Comm.) 1997) was wrongly (hexavalent chromium).
5918, 5953 (Feb. 10, 1978)), the ethylene seen in its most authoritative statements because of their special characteristics
oxide standard, (49 FR 25734, 25782 made since 1974. OSHA subsequently as uniquely personal; however, the
(June 22, 1984)), and the asbestos issued a national compliance directive, union representing the employees
standard, (51 FR 22612, 22697 (June 20, STD 1–6.6, incorporating this objected on the ground that the standard
1986)). interpretation and stating that violations required employer payment (Id).
In other official agency actions during of the policy would be cited. Reviewing this motion to withdraw the
this same period, OSHA interpreted and Despite this history, the Review citation, the Review Commission held
enforced its standards to require Commission in Union Tank rejected the that § 1910.132(a) did not require the
employers to pay for personal protective claim that 29 CFR 1910.132(a) could employer to pay for such shoes, with
equipment, carving out an exception require employer payment for PPE. In each Commissioner expressing a
limited to uniquely personal items like March 1996, OSHA issued a citation distinct reason for such. In Union Tank,
safety shoes. In 1979, OSHA issued an alleging that the Union Tank Car the Review Commission erroneously
Interpretive Instruction clarifying that Company violated 29 CFR 1910.132(a) characterized this holding as
29 CFR 1910.1029(h)(1), which used the by requiring employees to pay for interpreting ‘‘provide’’ as used in
language ‘‘shall provide,’’ required metatarsal safety shoes and welding § 1910.132(a) as foreclosing employer
employers to furnish personal protective gloves. Upon review, the Review payment (18 O.S.H. Cas. (BNA) at 1067–
equipment for coke oven employees at Commission issued a decision vacating 8). The Commission also described the
no charge. OSHA Instruction STD 1–6.4 the citation (18 O.S.H. Cas. (BNA) at Secretary as having acquiesced to this
(March 12, 1979). See also Erie Coke 1067–8). Citing its earlier decision in holding, rendering its later position in
Corp., 15 O.S.H. Cas. (BNA) at 1563 Budd, the Review Commission the 1994 memorandum historically
(citing this provision). A July 17, 1990, concluded that 1910.132(a) could not be ‘‘unsupported’’ ‘‘[a]fter twenty years of
Agency memorandum stated that interpreted to require employers to pay uninterrupted acquiescence in the
although section 1910.132(a) does not for personal protective equipment (Id. at interpretation the Review Commission
specifically allocate the costs of 1068). The Review Commission announced in Budd’’ (Id. at 1069).
personal protective equipment to believed that the Secretary’s position on OSHA believes that the Review
employers, ‘‘[i]t is our position that the the issue was contrary to previous Commission in Union Tank was,
employer is obligated to pay for PPE statements on employer payment for however, incorrect on both points. First,
which is not worn off the worksite. This PPE and thus, was a departure that was Budd did not broadly hold that
includes welding gloves, but not safety not thoroughly explained. ‘‘provide’’ in § 1910.132(a) can never be
shoes * * *’’ In September 1990, OSHA The Review Commission’s holding in interpreted to mean ‘‘pay for.’’ Although
issued a citation to a meatpacking firm Union Tank and its interpretation of 29 the Review Commission in Budd did
alleging that it violated section CFR 1910.132(a) misstates OSHA’s agree that § 1910.132(a) did not require
1910.132(a) by charging its employees historic position on payment for the employer to pay for safety shoes, the
for repair or replacement of steel mesh personal protective equipment. Review Commission did not announce a
gloves and plastic wrist bands used for Moreover, while two commenters to the majority opinion extending this
protection against knife cuts. The rulemaking record argued that Union conclusion beyond safety shoes. Only
citation was not contested, and thus Tank was correctly decided (Exs. 12: one Commissioner, Van Namee, opined
became a final order of the Commission 173, 189), OSHA believes the case was that § 1910.132(a) broadly foreclosed
by operation of law (29 U.S.C. 659(a)). wrongly decided. As described above, employer payment for all protective
On October 18, 1994, OSHA issued a OSHA’s official interpretations from equipment (1 O.S.H. Cas. (BNA) at
memorandum to its regional 1974 onward consistently favored 1549–50). The remaining
administrators and heads of directorates employer payment for PPE. This view Commissioners wrote separate opinions,
setting forth a national policy with was expressed in a variety of official one limiting his holding to the
respect to PPE payment. The agency actions, including rulemaking particular facts of the case and the
interpretation outlined in this proceedings under the Act, agency particular context of safety shoes
memorandum required employers to memorandums and directives, and (Commissioner Cleary Id. at 1552–3)
pay for all personal protective citations. This historic position belies and one concurring without stating a
equipment that is necessary for the the Review Commission’s finding that rationale (Commissioner Moran, Id. at
employee to do his or her job safely and the 1994 memorandum and STD 1–6.6 1553–4). Because these two other
in compliance with OSHA standards, announced a wholly new national Commissioners filed separate opinions
except for equipment that is personal in policy. announcing distinct rationales, Van
nature and normally used away from the The Review Commission’s Namee’s view of ‘‘provide’’ as
worksite such as steel-toe safety shoes. mischaracterization of OSHA’s historic universally foreclosing employer
Before the 1994 memorandum was view also stems in part from its payment is not the Commission’s
issued, OSHA concedes that some erroneous reading of Budd and the official holding (See Atlantic Gulf &
Agency officials had provided responses Secretary’s position in that case. In Stevedores v. OSHRC, 534 F.2d at 546).
to written requests for information on 29 Budd, the respondent’s employees were Claims to the contrary, made by both the
CFR 1910.132(a) suggesting among other working without safety-toe shoes (1 UPS and the PMA in comments to the
things that the provision was ambiguous O.S.H. Cas. (BNA) at 1549). The proposed rule (Exs. 12: 189, 179), ignore
on the subject of employer payment and Secretary issued a citation alleging a the limitations of the Review
best resolved through collective violation of 29 CFR 1910.132(a) for the Commission’s decision.
bargaining, or that the Review employer’s failure to provide such shoes The Secretary’s position in Budd was
Commission’s decision in Budd (Id). Prior to the hearing, the employer similarly limited to the particulars of
foreclosed an interpretation requiring moved to withdraw its notice of contest safety shoes and did not, as the Review
employer payment. The 1994 on the understanding that its obligation Commission in Union Tank suggested,
memorandum, however, was a to provide safety shoes did not include adopt a broader interpretation
definitive statement on the issue of the requirement to pay for them (Id). foreclosing all employer payment for
employer payment for PPE and reflected The Secretary agreed that the employer protective equipment. In her Brief in
the Agency’s position on the issue as was not required to pay for the shoes Budd, the Secretary conceded that
employers should not be required to pay specific requirements that are hazard, because he could not afford a
for safety shoes. The Secretary, reasonably related to the Act’s and the new pair. The employee also testified
however, stressed the special standard’s remedial purpose. This final that some employees put a cement-like
characteristics of safety shoes, including rule is placing ancillary provisions in substance over the steel toes of their
their uniquely personal nature and their the existing standards requiring PPE boots when the leather covering wore
potential use outside the employment use. Thus, OSHA must demonstrate away, but that this practice was
site (Brief of the Secretary, served only that requiring employees to pay for hazardous because the substance was
January 10, 1973, at 8). The Secretary PPE is reasonably related to the flammable (Id). OSHA also referred to
did not, however, extend this rationale remedial purpose of the PPE standards the Union Tank case, in which the
beyond safety shoes to foreclose all and will help reduce significant risk. employee representative presented an
employer payment for protective OSHA finds that the final rule meets affidavit that some employees taped or
equipment. Rather, the Secretary this test. wrapped wire around their damaged
emphasized that an interpretation Requiring employers to pay for PPE metatarsal safety boots in order to avoid
requiring employers generally to used to comply with OSHA’s standards having to pay up to $130 per pair to
provide personal protective equipment is a classic ancillary requirement. It replace them (Id).
free of charge would be consistent with helps to ensure that the PPE is used The rulemaking record also strongly
the statutory scheme. She also noted properly by employees to protect them supports OSHA’s position. As several
that the Act’s legislative history from injury and death. OSHA has commenters noted, when lower-wage
demonstrated Congress’s intent to place included employer payment provisions employees are required to provide their
the costs of achieving safe and healthful as ancillary provisions in numerous past own PPE, they are likely to avoid PPE
workplaces upon employers (Id. at 10). rules, as described above. In those costs and thus fail to provide
The Secretary concluded: ‘‘Personal rulemakings, the requirement was themselves with adequate protection.
protective equipment cannot be promulgated at the same time as the David Daniels of the United
segregated from equipment necessary to other provisions of the standard to help Steelworkers of America noted that
provide proper working conditions and reduce significant risk. In this rule, of ‘‘The welders have to purchase their
therefore the purchase of such course, OSHA is adding the explicit leathers, gloves and metatarsal boots.
equipment by the employer was employer payment requirement in a The welders will take their leathers
contemplated by the Act in cases where separate rulemaking action. However, when the top of the sleeves are burnt
a standard might require it’’ (Id. at 10– by doing so, OSHA does not change the with holes in them and turn the leathers
11). fundamental nature of the requirement. over which exposes the bottom of the
Thus contrary to the Review At bottom, this final rule adds an employee’s arm to heat, hot metal or
Commission’s suggestion in Union ancillary provision to certain PPE open flame’’ (Tr. 375). Similarly, John
Tank, the Secretary has never, in Budd standards to help reduce a significant Molovich, also with the United
or elsewhere, characterized ‘‘provide’’ risk of injury. Steelworkers of America stated that:
as used in 29 CFR § 1910.132(a) as After a thorough review of the
foreclosing employer payment. If rulemaking record, OSHA concludes Workers in some cases do not earn
that requiring employer payment for sufficient wages to pay for all the things that
anything, the Secretary’s position in
are necessary to support themselves and their
Budd recognized a general rule of most types of PPE increases the
families. As a result, some things are either
employer payment limited only where effectiveness of the existing PPE overlooked or eliminated, and in many cases
equipment, like safety shoes, are standards in several ways: (1) The it would be the PPE they use at work. Even
uniquely personal. This position, like requirement encourages a greater degree if they do purchase the PPE, it is usually the
the position taken in Union Tank and of usage of PPE by eliminating a cheapest and in most cases the most
articulated in this final rule, is financial disincentive to such use; (2) it ineffective. This is merely human nature (Tr.
consistent with OSHA’s historic increases the degree of employer control 370).
approach to 29 CFR § 1910.132(a) and over PPE selection and maintenance, In response to OSHA’s reopening of the
employer payment for PPE generally. It thereby increasing the effectiveness of record on tools of the trade, AFSCME
is further evidence of the Agency’s the employer’s safety program; and (3) stated:
longstanding position that the OSH Act the requirement indirectly fosters a
greater degree of employee cooperation Failure to require employers to pay for PPE
requires employers to pay for PPE.
would also cause an unreasonable burden on
in employer safety programs by
C. The Final Rule Is an Ancillary lower paid workers. Workers at risk would be
demonstrating the employer’s financial asked to choose between paying for their PPE
Provision Reasonably Related to the commitment to safety.
Purposes of the Underlying PPE and providing basic needs for their families
First, the reason employer payment * * *. The likelihood that worker protection
Standards will result in improved safety is would be diminished would be even greater
Separate from making the basic cost primarily a matter of economics, and for employees whose language and literacy
allocation scheme of the OSH Act how employees’ and employers’ levels may present barriers to the appropriate
explicit in the PPE standards, the final behavior regarding PPE is affected by selection and use of PPE (Ex. 45: 1).
rule is justified as a legitimate exercise their financial situations. In the Some commenters provided specific
of OSHA’s rulemaking authority to proposed rule, OSHA cited enforcement examples of instances where having
promulgate provisions in its standards cases that documented instances where employees pay for PPE could contribute
to help reduce significant risk. The financial considerations played an to an increased risk of injury. Jackie
existing PPE standards reflect a important role in employee use of Nowell of the UFCW testified that:
determination that the use of PPE is damaged and unsafe PPE (Id. at 15407).
necessary to reduce a significant risk of For example, in Ormet Primary [W]hen workers are given the choice
between a full week’s pay and a new metal
injury and death. Once OSHA has Aluminum Corp., OSHRC Docket No. glove [to reduce risk of injury from sharp
determined that a significant risk of 96–0470, an employee testified that he cutting tools] they’ll choose the paycheck.
material impairment of health or well continued to wear safety boots, even The gloves get holes in them and the workers
being is present, and will be reduced by though the protective steel toes were sew them together rather than spend $65 for
a standard, the Agency is free to develop exposed and posed an electrocution a new one (Tr. 184–185).
The evidence suggests that lower required employers to pay for needed effective use of PPE on their job sites.
wage employees are less likely to protective equipment. The Agency Recognizing their responsibility for
purchase adequate PPE and replace it stated that employer payment was identifying hazards, they provide the follow-
through necessary to address those hazards
when necessary, and are more likely to necessary because ‘‘[t]he employer is (Ex. 46–33).
make cosmetic repairs, hide defects, generally in the best position to select
purchase used PPE aged beyond its and obtain the proper type of protective UPS argued that employer payment
service life, or fail to keep the PPE in clothing and equipment for protection would have no effect on PPE selection
proper working order. After carefully from Cr(VI)’’ (71 FR 10355). In addition, because employers could select the
reviewing the rulemaking record, OSHA OSHA concluded that ‘‘[b]y providing correct PPE, purchase it, and then
is convinced that allowing employers to and owning this protective clothing and charge employees for the items. It also
charge employees for PPE will result in equipment, the employer will maintain argued that employers could instruct
greater use of unsafe PPE. control over the inventory of these employees to purchase a particular
OSHA also believes that employees items, conduct periodic inspections, make, model, or design of equipment
will be more inclined to use PPE if it is and, when necessary, repair or replace from a particular location and require
provided to them at no cost. As with it to maintain its effectiveness’’ (Id). them to present the equipment for
any product, when PPE is available at From the comments in this verification before beginning work (See,
lower cost, the employee will be rulemaking, it is apparent that some e.g., Ex. 189, p. 17).
inclined to use it more readily. One employers have shifted some PPE OSHA agrees that employers could
could argue that since it is the responsibility to their employees along take these actions and some employers
employee’s safety that is at stake, the with the responsibility to pay for the use one or both of these practices now.
employee will be more inclined to equipment. Some went so far as to However, OSHA does not believe this
purchase the best PPE available on the suggest that employees have a better practice is the norm; there are not likely
market. Unfortunately, as evidence in idea of the PPE required for the work to be very many employers that use
the record suggests, when employees and should rightfully be selecting their complex administrative systems to
pay for their own PPE, some number of own PPE. SHRM stated that the assure that the PPE is appropriate when
them will not take this course, and as a employee ‘‘[p]lays a direct role in the employees pay for the items.
result their safety will be compromised Additionally, under these systems,
selection, use, sizing, adjusting, care,
(Tr. 104–105, 178, 184–185, 323, 370, employees continue to have an
storage, and control of [the] PPE’’ and
375; Ex. 19, 22A, 23, 23A, 25, 30, 43, 45; incentive to underreport deficient or
that ‘‘[t]he employee is generally in a far
13, 21, 36, 46: 1, 13, 45). worn out PPE that needs to be replaced
better position than the employer to
Employers’’ natural economic to perform its protective function.
ensure that personally-assigned PPE is
behavior of reducing costs could also OSHA believes that these types of
properly maintained, used, and stored’’
result in some safety and health systems do not improve safety culture at
(Ex. 46: 43, pp. 19–20).
disincentives. The BCTD and the AFL– OSHA believes that employees can the worksite, or encourage employees to
CIO suggested that allowing employees participate whole-heartedly in an
provide any number of useful
to pay for PPE provides an economic employer’s safety and health program.
suggestions about employers’ PPE
disincentive for employers to invest in Therefore, OSHA believes that the
programs, including selection, use, and scenario described by UPS is
engineering controls, thus increasing care of PPE. However, outside of a few
risk to employees (Ex. 45: 21; Tr. 322– administratively cumbersome for
specialized fields, a newly hired employers, is not widely practiced, and
323). If employers ignore the hierarchy employee is not in a position to know
of controls because they can shift the does not provide a workable solution to
the types of hazards they will face, and the overall policy problem of PPE non-
cost of workplace safety to their the types of PPE they will need for
employees, they may be choosing less use or misuse. Systems of this type,
protection from those hazards. The sometimes called ‘‘company stores’’ are
effective methods of mitigating hazards. employer who controls the workplace is
By eliminating this incentive, employers also likely to be criticized by those who
much more aware of the hazards believe the employer is making money
may be more inclined to implement encountered in that workplace and the
more effective engineering, from administration of the system. As
protective measures that are needed the ISEA inquired, ‘‘Should OSHA
administrative, and work practice (Exs. 23, 46–13, 46–33; Tr. 104–105).
controls, leading to improved safety and decide that employers can require that
This is the rationale underlying the employees pay for their PPE, ISEA asks
fewer injuries and illnesses. This final
OSHA standards that require employers OSHA to explain the mechanism it
rule eliminates any economic incentives
to perform a hazard assessment to would establish to ensure that
that employers may have to avoid more
determine the types of PPE that are employers do not overcharge
protective control measures.
Second, OSHA believes that safety needed (See, e.g., § 1910.132(d) and employees’’ (Ex. 46:31). Therefore, these
benefits will be realized by the final rule § 1915.152(b)). commenters advance no sufficient
When employers take full
because it will clearly shift overall alternative and their reasoning is not
responsibility for providing PPE to their
responsibility for PPE to employers. In sufficient to convince the Agency that
employees and paying for it, they are
past rulemakings, OSHA has concluded the PPE payment rule is not needed.
more likely to make sure that the PPE Third, employees may be less likely
that requiring employers to pay for PPE
will result in benefits because it will is correct for the job, that it is in good ¥++‘‘+¥++to participate whole-
clearly make employers responsible for condition, and that the employee is heartedly in an employer’s safety and
the control of the PPE (See 43 FR 19619 protected. As ASSE stated: health program when they must pay for
(May 5, 1978) (inorganic arsenic Employers correctly understand that their their own PPE, and employer payment
preamble); 46 FR 4153 (hearing investment in proper PPE is an economic for PPE may improve safety culture at
investment in productivity as well as a
conservation preamble)). Recently, the worksite. In past rulemakings, this

means of ensuring that workers go home safe
OSHA promulgated a standard to and healthy each day. And to drive home finding has been key to OSHA’s
protect employees against exposures to that investment, they have recognized that conclusions that employer payment will
hexavalent chromium (71 FR 10100 their own involvement in PPE provides the result in safety benefits. In requiring
(Feb. 28, 2006)). In the final rule, OSHA best opportunity to ensure proper and employers to pay for hearing protectors
as part of the hearing conservation organizations that commented in the concerns [with their employers]; and
standard, for example, OSHA relied record. Unlike the majority of that employer safety education is more
upon the testimony of the director of the commenters, these organizations do not complicated when employees pay for
Safety and Health Department of the have a financial stake in the outcome of their own PPE. They also argued that:
International Brotherhood of Teamsters: the rulemaking, and they do not stand Lower income, non-English speaking, and
[an] employer’s attempt to require its to gain or lose economically whether immigrant workers are most likely to be
employees to purchase their own personal employers or employees pay for PPE. vulnerable to a shift in responsibility of
ear protective devices would cause Their sole interest in the rulemaking lies purchase. We know, from advising our
resentment among the workers and clearly in whether or not it will advance the patients about PPE, that money is an issue for
demonstrate to them the lack of commitment interests of occupational safety and procurement and appropriate use. The
on the part of their employer in preventing health, and protect employees from purchase of a pair of prescription safety
hearing loss. Such a requirement would workplace injury, illness and death. It is glasses or shoes can represent a notable
discourage the use of ear protective devices thus appropriate for OSHA to put burden to workers, whereas it represents
and would create an adversarial atmosphere operating costs for employers. In an attempt
particular weight on the comments of to economize, lower quality equipment is
in regard to the hearing conservation program
(46 FR 4153). these organizations. purchased, and equipment is not updated as
The National Institute for it should be (Ex. 46: 35).
OSHA found that the need to ensure Occupational Safety and Health
voluntary cooperation by employees (NIOSH) remarked that it has The American Association of
was also an important reason to require consistently recommended that Occupational Health Nurses (AAOHN),
employers to pay for other protections employers pay for all PPE required for representing 12,000 occupational health
in standards, including medical the work setting, and shared OSHA’s nurses in a wide variety of industrial
examinations and medical removal views that: sectors supported the rule, noting that
protection (MRP). In promulgating the • ‘‘[e]mployees may compromise allowing employees to choose their own
lead standard, OSHA relied upon their safety and health by avoiding or PPE may pose administrative and
extensive evidence that employees’ fears delaying the purchase, maintenance, or enforcement problems for employers.
of adverse economic consequences from replacement of PPE if that must be done AAOHN also reported a situation where
participation in a medical surveillance at the employee’s expense’’; a manufacturing facility allowed
program could seriously undermine • ‘‘when employers do not pay for individual preference and selection for
efforts to improve employee health (43 and provide PPE, it may not be worn or safety eyewear and found that 70
FR 54442–54449 (Nov. 21, 1978)). may be worn improperly, and it may not percent of the female employees were
OSHA cited data from numerous be cared for and replaced using glasses without safety lenses (Ex.
sources to show that employees’ appropriately’’; and 12: 32).
concerns about the possible loss of • ‘‘when employers do not pay for In its 1999 comments, the American
income would make them reluctant to and provide PPE, incorrect or poor Society of Safety Engineers (ASSE),
participate meaningfully in any program quality PPE may be selected and worn representing about 30,000 safety and
that could lead to job transfer or by the employee’’ (Ex. 12: 130). health professionals, noted that most
removal (Id). OSHA promulgated the The American College of employers already pay for PPE during
lead standard’s MRP provision Occupational and Environmental the course of their normal business
‘‘[s]pecifically to minimize the adverse Medicine (ACOEM), representing 7,000 operations, and that:
impact of this factor on the level and occupational physicians, supported
[m]any organizations benefit from the
quality of worker participation in the employer payment for PPE, stating that: policy of paying for personal protective
medical surveillance program’’ (Id. at ‘‘It is important that employers be equipment. The alternative for these
54449). responsible for ensuring that the organizations could be the use of substandard
The record in this rulemaking also personal protective equipment selected equipment by employees, inconsistent levels
supports this position. The ISEA for use at their facilities is appropriate of employee protection, increased numbers of
summed up the views of many and maintained in proper working injuries, illnesses and fatalities, and
order. We do not believe that this can employers having to expend resources on
commenters when it remarked:
be achieved if employers are not litigation to defend themselves.
A systematic PPE program, driven by
management through the organization, is an
directly involved in the purchase and ASSE also related several instances
important factor in creating a positive safety maintenance of that equipment’’ (Ex. 12: where employees were providing their
culture. Employers who provide and pay for 248). own eye protection, and failed to select
PPE recognize that they are not simply The comments of the Mount Sinai eyewear meeting the OSHA standards,
incurring a cost for equipment, but rather Irving J. Selikoff Center for resulting in OSHA citations. The
making an investment by valuing their Occupational and Environmental employers had mistakenly assumed that
employees and avoiding the high direct and Medicine were based on experience the employees were selecting the right
indirect costs of injury, illness and death (Ex. with the 7,000 employees per year they equipment (Ex. 12: 110).
12:30). treat for occupationally related disease In its 2004 comments on tools of the
Finally, OSHA is persuaded by the and illness. They argued that employees trade, ASSE reaffirmed its 1999
overwhelming consensus of prominent cannot know the site-specific safety and arguments supporting PPE payment by
occupational safety and health health issues before they start employers and provided a list of quotes
organizations that employer payment for employment, which could lead from several of their member safety
PPE will result in safer working employees to have equipment that is engineers that supplement the views of
conditions. OSHA carefully examined incompatible with the job site; that if OSHA’s expert panel. Some of those
the hundreds of comments to the employees purchase their own PPE, comments are:
rulemaking record that weighed in on employer supervision of PPE • It is just good business to provide [and
whether an employer payment maintenance becomes more complex, pay for] equipment so that we control quality
requirement would result in safety which can lead to less safety; that and type so that injuries are prevented. I’m
benefits. In doing so, OSHA identified employees who pay for their own PPE sure we save far more in the long run by
the independent safety and health are less likely to bring up exposure preventing injuries than we spend on PPE;
• I have found that the PPE purchased by quantitative estimate of the incidence of workplace injuries and illnesses for
the employee to be old and worn out; PPE non-use or misuse when employees 2005, with a rate of 4.6 cases per 100
• Employees generally should not be must pay for PPE as compared to full-time employees. Using these
allowed to bring safety equipment on the employers paying for PPE. AISI argued statistics, it would require a change of
jobsite * * * this insures that the
equipment is in good condition and can be that the estimate assumes that the over 91,000 injuries and illnesses to
utilized; and training and behavior of employers and move the U.S. rates by one tenth of a
• Where people provide their own tools, employees across all industries is the point, the most detailed estimate
let alone PPE, there has been a resistance to same, regardless of the nature of the published by the BLS. If the entire
keeping current with the best equipment and hazard, the level at which employees estimated benefit of 21,789 averted
practices. As an example, I have seen people are compensated, or whether there is a injuries and illnesses occurred within
with sentimental value assigned to their hard collective bargaining agreement which one year, it would not be sufficient to
hats that no longer meet manufacturers’ addresses the purchase of PPE (Ex. 12: change the U.S. rate by even one tenth
specifications (Ex. 46: 33).
188). OSHA agrees with AISI that of an injury or illness per 100 full-time
There are also large numbers of different employers and employees have employees. Therefore, while the effect
comments from employers who different behaviors regarding PPE. of the rule on occupational safety and
recognize the value of PPE payment, Therefore, the final rule may result in health is expected to be substantial, it is
and supported some form of PPE more safety and health benefits (and unlikely to dramatically affect the
payment requirement (See, e.g., Exs. 12: more costs) for some employers, while national statistics. The effect on state-
2, 4, 6, 9, 10, 12, 21, 58, 101, 105, 113, it impacts other employers less. specific statistics is similar, so it is not
117, 134, 149, 184, 190, 210, 218, 230, However, as described above, the surprising that a pattern of lower rates
247). Of particular interest are the Agency believes that the overall impact is not readily apparent in the states that
comments of the Voluntary Protection of the rule will result in fewer require PPE payment.
Programs Participants’ Association occupational injuries and illnesses Second, the states that require
(VPPPA), whose members have all because it will improve the use of PPE payment typically do so because the
implemented OSHA approved safety in the workplace. requirement is set forth in their enabling
and health management systems. More Further, OSHA wants to emphasize legislation. Because injury rates are not
than 1,500 workplaces have successfully that the quantitative benefits estimate in available for this time period it is not
completed OSHA’s Voluntary Protection the final rule is not based solely on the possible to perform a meaningful before
Program (VPP) evaluation and audits, opinion of one expert. OSHA has and after analysis to determine
and have workplace injury and illness estimated the benefits of the final rule observable effects due to PPE payment.
rates that are below the average for their based on three different assumptions. Third, occupational injury and illness
industry. VPPPA, as well as VPP Even under the most conservative rates are affected by a large number of
companies that commented on the assumption—that employer payment for factors, many of which may not yet be
proposed rule, supported employer PPE will result in a 2.25 percent identified, and there is considerable
payment for PPE (See, e.g., Ex. 12: 113). decrease in the misuse or nonuse of uncertainty concerning how they work
VPPPA remarked that: PPE—the final rule will prevent in combination to affect overall rates.
approximately 2,700 injuries per year For example, the BLS rates are affected
We commend OSHA for promptly moving
forward in clarifying the law regarding
across all industries affected, a by the mix of industries within a state,
employer payment for PPE. The Secretary of substantial number of injuries avoided. weather conditions, large scale events
Labor v. Union Tank Car decision had little (For a complete discussion of OSHA’s (e.g. natural disasters), technology
effect on our association’s members, who benefits analysis, see section XV below.) advances, work-practice customs,
continue to believe that paying for their Finally, some commenters argued that workers’ compensation insurance
employees’ PPE is the most sound strategy there was contrary evidence to OSHA’s programs, workforce characteristics, and
for promoting a safe and healthy workplace. conclusion that employer payment for economic factors, such as changes in
We expect that with promulgation of this PPE would result in benefits—namely employment and productivity. Of
rule, more workplaces will reach this state injury data in states with employer course, OSHA recognizes that its
conclusion and maximize protection for their payment for PPE requirements. Two policies also affect those rates, that
employees (Ex. 12: 113).
commenters raised the concept that, if changes in standards, new enforcement
For these reasons, OSHA rejects the PPE payment was effective at reducing policies, and publicized OSHA
comments of some who argued that the workplace injuries and illnesses, an enforcement cases have influence over
proposed rule would have no direct analysis of individual state occupational workplace safety and health. Given the
impact on safety and health (see, e.g., injury and illness rates should indicate complex nature of state-specific injury
Exs. 12: 14, 17, 22, 29, 31, 36, 41, 47, a lower rate for those states that require and illness rates, it is difficult, if not
55, 65, 73, 82, 90, 91, 120, 121, 140, 172, PPE payment. They argued that the impossible, to discern the effect of PPE
194, 216, 225, 241) and that there was State of Minnesota, which has had a payment policies on state-specific rates.
no proof of safety and health benefits state law requiring employers to pay for Therefore, OSHA does not find the state
(see, e.g., Ex. 12: 173, 189). The all PPE, has injury and illness rates that plan argument to be persuasive. As
rulemaking record, examined as a are above those for the United States as noted in the benefits section below, the
whole, leads OSHA to the opposite a whole, and that if PPE reduced agency considered a wide range of
conclusion. There are significant safety workplace injuries and illnesses, injury reductions when assessing the
and health benefits of employer Minnesota should show a lower rate effects of the standard. The Agency is
payment for PPE. (Exs. 12: 173, 189). confident, for all the reasons outlined,
Some commenters argued that OSHA rejects this analysis for three that this rulemaking will result in an
OSHA’s estimate of the quantitative reasons. First, the effect of PPE payment overall reduction in injury rates and net
benefits was unreliable because it did on the injury and illness rates may not benefits to society.
not factor in the different types of jobs be large enough to affect the rates, given For all of the reasons discussed above,
and PPE involved with the rule. The that they are only reported at a general and after careful review of all
American Iron and Steel Institute (AISI) level. The Bureau of Labor Statistics comments, the Agency concludes that
found to be problematic the Agency’s (BLS) reported over 4,200,000 the final rule will help reduce the risk
associated with the underlying PPE noise, or radiation. The risk is caused by • In 1997, an employee was installing
standards. failure of employers to provide their television cable from an aerial lift,
employees with appropriate PPE to wearing a baseball cap but not an
1. Significant Risk
guard against the workplace hazard, and insulating hard hat. The employee
Some commenters argued that OSHA the failure of both employers and contacted an overhead power line with
must find a significant risk from employees to properly and consistently his head and was electrocuted.
employers not paying for PPE and find use appropriate PPE. The PPE payment • In 1996, an employee’s foot was run
that this rule would substantially reduce provisions use payment practices to over by a cart, resulting in a compound
that risk (See, e.g., Exs. 12: 173, 188, help reduce that risk. fracture of the foot. He was wearing
189). AISI challenged OSHA’s Employee injuries related to lack of tennis shoes instead of safety toe shoes.
arguments for requiring payment, appropriate PPE are common. OSHA • In 1996, an employee was
asserting that the Agency had not has investigated hundreds, if not transferring a corrosive substance
clearly identified a significant risk of thousands, of accidents where lack of between storage tanks without eye
harm, that the Agency did not establish PPE contributed to workplace injury, protection. A small splash of the liquid
the ability of the PPE payment standard overexposure to chemicals, and death. struck him in the face and eyes,
to reduce the risk, and did not establish The following summaries from OSHA’s resulting in hospitalization.
that the requirements are cost effective publicly available Integrated • In 1995, an employee working for a
(Ex. 12: 188, pp. 7, 8). UPS made the Management Information System (IMIS) building maintenance service was
same arguments, adding that ‘‘OSHA accident investigations database provide cleaning a glass window without fall
has failed to even identify the existence just a few examples of the type of protection when he fell 70 feet and died.
of a significant risk of material • In 1995, an employee was using a
accidents where properly worn PPE may
impairment resulting from an employee gas cutting torch to cut the metal shell
have allowed an employee to survive an
paying for his own PPE’’ (Ex. 12: 189, of a rail tank car without welding PPE.
accident, avoid injury or chemical
p. 5).16 The PMA added that OSHA is The heat and flame of the torch set his
exposure, or lessen the extent of injuries
required to make a threshold finding: work uniform on fire, resulting in burn
resulting from an accident.
injures that required six days of hospital
[t]hat significant risks are present and can • In 2000, an employee dipping metal
treatment.
be eliminated or lessened by a change in parts into a molten salt mixture was • In 1995, a shipyard employee was
practices before it can promulgate a standard splashed with molten salt, resulting in attaching a 300 pound steel plate to a
under 29 U.S.C. 651(b). Specifically, OSHA second degree burns on both his arms
must determine that significant risks of flange while not wearing protective
and face. The employee was not wearing footwear. The plate fell and struck his
material impairment are present and can be appropriate PPE to protect his arms, nor
eliminated or meaningfully lessened by a feet, resulting in partial amputation of
change in practices or equipment. For a
a face shield, even though the his toes.
health standard, this requires a significant supervisor working next to him was Further, OSHA commonly finds PPE
risk of material impairment of health or properly equipped with PPE. problems during its inspections. In 2006
functional capacity and a probability of • In 2000, a construction employee the Agency issued over 13,000 PPE
significant benefit from a rule which would was using a hammer to break up tile violations, nearly 8,000 of them serious
guard against such risk (Ex. 12: 173, pp. 13, during a dismantling operation. A piece in nature.
14). of the tile flew back and struck his left Finally, even if OSHA needed to find
These commenters’ misunderstand eye, resulting in permanent blindness. in this rule that employee payment for
the legal underpinnings of this rule. In • In 1999, an employee was working PPE is a significant risk and requiring
promulgating the underlying standards in the pouring area of a foundry without employers to pay for PPE would
that require PPE, the Agency met its PPE, skimming hot molten metal into a substantially reduce that risk—which
significant risk burden. As explained sand mold. The mold broke and OSHA does not need to demonstrate—
above, this is an ancillary provision that splashed molten metal onto the floor, OSHA’s estimate of injuries avoided
will help effectuate the use of PPE. And where it ran into his boot. He received meets that test. As set forth in detail in
OSHA finds that it has clearly met the third degree burns to half of his foot and the benefits analysis, a conservative
test that the proposed revisions to the was hospitalized. estimate of the beneficial impacts of the
existing PPE standards are reasonably • In 1999, a warehouse employee was rule show that once promulgated, it will
related to their purpose of preventing struck on the head by a supporting bar prevent approximately 2,700 injuries
injury by requiring the provision and that fell from above, receiving a head per year. This is a significant reduction
use of adequate personal protective laceration that required hospitalization. in injuries by any measure and is based
equipment. The employee was not wearing any form on the most conservative assumption
If employees are exposed to hazards of head protection. with respect to the benefits of the final
not addressed by engineering, work • In 1999, an employee building a rule. (The highest estimate of the
practice, or administrative controls, and cinder block wall was making a benefits of the final rule is that it will
they are not provided with appropriate masonry line with a thread when the prevent 21,798 injuries per year.)
PPE, they may be injured, killed, or thread broke and struck him in the face, One commenter disagreed with
overexposed to dangerous chemicals, resulting in hospitalization to treat the OSHA’s position taken in the
complete loss of one eye and multiple proposal—and in the final rule—that the
16 UPS also argued that the rule must meet the fractures to his nose and face. The Agency need not make a significant risk
test for a safety standard and therefore, that OSHA employee was not wearing any eye or finding for each provision in a standard.
must demonstrate a cost-benefit rationale for the
rule. UPS misstates the legal test for safety
face protection. The AISI stated that OSHA’s position is
standards. In UAW v. OSHA, 37 F.3d 665, 668 (D.C. • In 1998, an employee trimming ‘‘[i]nconsistent with the Constitutional
Cir. 1994) (Lockout/Tagout II), OSHA declined to trees was removing tree limbs from the principles under which Congress
adopt a cost-benefit test for safety standards and the ground, when a limb fell 30 feet and delegated rule making authority to the
court accepted OSHA’s position. Nevertheless,
OSHA has analyzed the costs and benefits of the
struck him in the head, resulting in his agency, and contrary to the
rule. This analysis is contained in Section XV, Final death. The employee was not wearing a requirements of Sections 6(b) and 3(8) of
Economic Analysis. hard hat. the OSH Act as defined by the United
States Supreme Court in the Benzene there are many reasons why employer same PPE from job to job may have
and Cotton Dust decisions’’ (Ex. 12: 188, payment for PPE will increase safety greater familiarity with their PPE than
p. 10). and OSHA finds these reasons employees who are provided new PPE
AISI’s interpretation of the OSH Act’s compelling, some commenters each time they work for a new
requirements for promulgating suggested reasons why employee employer. This consistency may also
standards is incorrect. As the Supreme payment may have some safety assure employees that the PPE they will
Court has stated and as discussed above, advantages in certain circumstances. be using is best fitted and suited to their
before promulgating a standard, OSHA A few commenters argued that safety own needs. Given this, these
must demonstrate that significant risk would be enhanced when employees commenters suggest that it may be more
exists and that the standard will pay for PPE because they would be able cost-effective for employees in some
substantially reduce that risk. This to select PPE that is comfortable for industries with high turnover rates to
requirement applies to the standard as them and they would take better care of supply basic PPE such as hardhats,
a whole. OSHA is not required to make its condition (see, e.g., Exs. 12: 31, 48, safety glasses, and gloves that can be
a provision-by-provision significant risk 68, 140, 165, 203; 45: 5, 6; 46: 4, 17, 32, carried easily from establishment to
finding, which would be an impossible 42). For example, a representative of establishment.
burden to meet. There are sometimes HBC Barge stated in a written comment OSHA does not agree with
over a hundred different provisions in that: ‘‘By having the employee pay for commenters that employee payment
OSHA standards that operate together to PPE that is classified as ‘tools of the will result in greater safety benefits than
reduce the significant risk faced by trade’ the effect on workplace safety and the final rule. As discussed in detail
employees at the worksite. These health can only be positive. Ownership above, OSHA finds that the final rule
provisions include exposure of equipment on the average will bring will result in significant benefits for
monitoring, medical surveillance, a pride in maintaining their equipment employees and will reduce the risk
respiratory protection, protective in proper working order’’ (Ex. 46: 4). A underlying the existing PPE standards.
clothing, training, hazard representative of the National Rural Employers are in the best position to
communication, information sharing, Electric Cooperative Association know and address the hazards in their
and so on. OSHA has never in the past, commented that: workplaces, and payment for PPE will
nor is it required to, make a significant provide an incentive to better
If employees pay for their own tools-of-the-
risk finding for each of these provisions. trade PPE there is a greater likelihood of understand those hazards and take
In fact, this issue was squarely accurate fitting to the individual and a appropriate measures to ensure PPE is
addressed in the review of OSHA’s greater likelihood that individual preferences used by their employees. The
hearing conservation standard, where will be met. As a result, employees are more rulemaking record strongly supports
the Fourth Circuit stated that the likely to wear PPE that they provide OSHA’s finding of safety benefits from
appropriate test was whether the themselves. The more that workers wear the final rule.
individual requirements of the standard appropriate PPE, the safer is the workplace The commenters who suggested
(Ex. 46: 42). greater safety benefits under an
were reasonably related to the purposes
of the enabling legislation (Noise, 773 The National Electrical Contractors employee payment scenario seem to
F.2d at 1447). Association (NECA) stated that base their suggestion on the fact that
employees who work on construction since PPE is ‘‘personal,’’ if employees
2. Cost Effectiveness sites were in the best position to provide select and purchase it, it will be more
OSHA concludes that the final certain personal protective equipment suited to their tastes and they will wear
standard is also cost effective. A and tools, and suggested that safety it more often. While it is true that PPE
standard is cost effective if the could be compromised in some is more effective when it is suited to the
protective measures it requires are the situations where employers provide the size and fit of the employee, OSHA does
least costly of the available alternatives equipment to be shared by employees: not believe that this is relevant to the
that achieve the same level of protection Certain Lineman’s tools have long been question of whether employers or
(Cotton Dust, 452 U.S. at 514 n.32). Cost considered ‘tools of the trade.’ Lineman’s employees should pay for the PPE. The
effectiveness is one of the criteria that belts must be measured and sized to fit the employer is responsible under existing
all OSHA standards must meet. The individual employee. Exchanging such belts OSHA standards to ensure that the right
OSH Act does not support a with other employees would cause belts to PPE is used in the workplace and that
requirement that imposes greater costs have wider or smaller loops, which could it fits the employee; OSHA has found,
than available alternatives without any lead to dropped tools. For fall protection, on the basis of this rulemaking record,
safety benefit. For employer payment to Lineman’s hook gaffs are sharpened to the
that an employer payment requirement
‘taste’ of the lineman, hooks are individually
be more cost-effective, it must provide adjusted to the lineman’s calf length and will help ensure that employers carry
the same or better level of safety at a preference, and hook pads are broken in to out this responsibility. OSHA does not
lower cost than permitting employers fit the individual for fatigue and stress believe that having employees pay for
and employees to determine who pays reduction. Constantly transferring hooks, the PPE will result in improved
for PPE. After carefully reviewing the belts, and safeties would cause a employee use of the equipment.
rulemaking record, OSHA has disconcerting concern for linemen (Ex. 12: In addition, OSHA has crafted the
concluded that this final rule is the most 16). final rule in a cost effective manner. It
cost-effective of the available NECA also commented that flame- recognizes the safety benefits of
alternatives. resistant clothing is best purchased by employer payment for most types of
OSHA considered the effect on safety the employee, in part because the PPE, but exempts certain PPE from the
of permitting employees to pay for PPE employee can better ensure daily care, general payment requirement. Much of
in comparison to imposing an employer proper fit, and adequate laundering of the exempted PPE can be used off of the
payment requirement, with limited the clothing, which ‘‘[i]s vital to the job and is the kind of PPE that
exceptions. (OSHA considered four longevity of the clothing and health of employees may take with them from job
specific alternatives to the final rule, employees * * * ’’ (Ex. 12: 16). to job or employer to employer. The
which are discussed in more detail in These and other commenters stated final rule also specifically recognizes
the Alternatives Section above.) While that employees who regularly carry the that OSHA standards allow for
employees to bring on the worksite and employment, marine terminal, regulation. The sources of market failure
use PPE that they already own. Thus, longshoring (referred to as maritime could include the existence of
the final rule addresses much of the standards), and construction standards. externalities, the high cost of or lack of
cost-effectiveness concerns raised by In some cases, the standard is explicit necessary information, including large
commenters for certain PPE in high- in stating that employers are to provide uncertainties that are costly to remedy.
turnover industries. the PPE at no cost to the employee (see, Measures for improving occupational
OSHA also believes that employer for example, OSHA’s substance-specific safety and health involve significant
payment for PPE will result in PPE health standards, which are codified in externalities. The consequences of an
purchases that are on the whole less Subpart Z of 29 CFR 1910.1000). In injury or fatality usually extend beyond
costly than if employees paid for the other cases, however, such as in the affected employee and employer. A
PPE. Employers can frequently utilize paragraph (a) of 29 CFR 1910.132 and substantial part of the emotional and
bulk purchase discounts, which means paragraph (a) of 29 CFR 1926.28, who is financial costs associated with an injury
that the same amount of PPE will be required to pay for the PPE is not or fatality is often borne by third parties
provided at a lower cost, or more PPE expressly specified. (For a complete list that are not compensated for their costs,
will be provided for the same cost. of OSHA’s PPE requirements, see the including other workers, families and
Requiring individual employees to Summary and Explanation section, friends. Thus, a substantial part of the
purchase individual pieces of above.) benefits associated with improvements
equipment is not an efficient way to This rule will apply to general in safety and health is externalized. As
provide this critical protection. industry, construction, and maritime a result, even a mutually agreeable
Finally, according to OSHA’s survey workplaces covered by the PPE arrangement between employers and
data, the vast majority of employers, provisions in existing OSHA standards. employees could represent a socially
found in all industries, are already The rule will clarify OSHA’s position undesirable outcome.
paying for all of their employees’ PPE. that, with the exceptions noted, A second market failure concerns the
OSHA does not believe this would be employers must provide required PPE to cost of and lack of necessary and
the case if employer payment was not their employees at no cost to those sufficient information. The risks of
cost effective. This demonstrates that employees. The kinds of PPE addressed injuries or fatalities specific to a
most employers have made a business by this rule include nonprescription eye particular job at a particular firm for a
decision that paying for PPE is a cost and face protection; hard hats; future time period are difficult to know
effective method of providing protection metatarsal protection; gloves and or predict. The compilation of more
for their employees. protective clothing; fall protection and detailed and current information on
welding equipment; and hearing employer- and job-specific risks could
XV. Final Economic and Regulatory protection. (A more detailed list of the provide improvement, but at immense
Flexibility Analysis kinds of PPE covered appears in the cost, difficulty, and controversy. For
A. Introduction Summary and Explanation section, example, such risk estimates would
above.) have to take into account the presence
OSHA has prepared this Final or absence of any number of
Economic Analysis to examine the B. Need for the Rule and Market Failure combinations of controls or procedures
feasibility of the rule on Employer The justification for imposing in the context of innumerable different
Payment for Personal Protective appropriate occupational safety and circumstances. Without adequate
Equipment and to meet the health standards generally, and for information regarding occupational
requirements of Executive Order 12866 adopting this change to the PPE risks and how they may be affected by
and the Regulatory Flexibility Act (as standards in particular, is that without innumerable diverse factors, employer
amended). The rule will clarify that, these requirements, fatality and injury and employee negotiations regarding
with certain exceptions, employers are risks to employees would remain pay and working conditions may not
required to pay for protective unacceptably high. OSHA has adequately reflect the nature of such
equipment, including personal determined that this rule meets the risks. Typically, the employee will be at
protective equipment (PPE), whenever standards for regulation established by a disadvantage in assessing and
OSHA standards mandate that Congress through the passage of the controlling these risks, especially with
employers provide such equipment to Occupational Safety and Health Act. In regard to employer- and worksite-
their employees. The employer is not addition, risks would be too high in specific considerations; in addition,
required to pay for non-specialty safety- terms of imposing large net costs (both employers are not always fully aware of
toe protective footwear (including steel- pecuniary and non-pecuniary) on the nature of risks, the full costs
toe shoes or steel-toe boots) and non- society, producing an inefficient associated with an injury incident, the
specialty prescription safety eyewear, allocation of resources, and reducing extent to which they can be reduced,
provided that the employer permits overall social welfare. and the methods and resources that can
such items to be worn off the job-site. OSHA has found that in this case, achieve reductions in risk.
The employer is also not required to pay market incentives alone are unable to A third source of market failure
for the logging boots required by 29 CFR allocate sufficient resources to provide involves the high costs and
1910.266(d)(1)(v); everyday clothing, for social welfare enhancing uncertainties associated with attempts
such as long-sleeve shirts, long pants, improvements in safety and health. By at restitution. The costly nature of the
street shoes, and normal work boots; or itself, however, the existence of legal system, together with the
ordinary clothing, skin creams, or other constraints which prevent optimal uncertainties associated with the
items, used solely for protection from efficiency would not necessarily justify outcome of cases, limits the prospect for
weather, such as winter coats, jackets, regulatory intervention because tort liability to create the proper
gloves, parkas, rubber boots, hats, regulations themselves may introduce incentives. Problems with tort liability
raincoats, ordinary sunglasses, and costs, rigidities, and distortions. laws have been recognized for decades
sunscreen. However, in this case the negative and were partially addressed through
OSHA’s requirements for PPE appear consequences of not regulating are the establishment of no-fault workers’
in many health, safety, shipyard outweighed by the net benefits of compensation programs in every state.
However, even the workers’ may be passed on, to an extent, to other adequate PPE, but the OSH Act
compensation systems do not market participants such as employees implicitly requires employers to pay for
adequately correct the market failures and consumers. Regardless, our research it. OSHA concludes that for the hazards
because insurance rates are frequently has shown that often employers pay for requiring PPE, a mandatory standard
not employer-specific, coverage and PPE. However, OSHA has also found in clearly setting forth an employer’s
compensation are only partial, and the this analysis that requiring all obligation to pay for PPE is necessary,
outcome still leaves injury and fatality employers to pay for all PPE, with few just as it is for engineering and work
rates above levels achievable through exceptions, leads to a better regulatory practice controls.
cost-effective regulatory requirements. outcome. For example, with workers’
D. Industry Profile
This rule is a response to these market compensation benefits paid to the
failures. When it promulgated the OSH employee remaining fixed under state The rule is concerned only with who
Act, Congress noted the failure of the law, the employee’s incentive to acquire pays for OSHA-required PPE; that is, it
market to prevent a significant number proper PPE or replace it in a timely will not require employers to provide
of occupational injuries and fatalities. manner may be less than the total costs PPE where none has been required
Congress concluded that promulgation associated with a possible accident as a before. Instead, the rule merely
of the OSH Act was necessary to create result of the assurances provided by the stipulates that required PPE be paid for
a safe and healthful working workers’ compensation system. The by the employer. If all employers are in
environment. As stated by Senator risky and tragic results of this market full compliance with requirements that
Cranston: distortion are written about extensively PPE be provided, then PPE is already
in the Legal Authority section of the being paid for by either the employer or
[T]he vitality of the Nation’s economy will
preamble. One way to correct this is to the employee, and the rule will shift the
be enhanced by the greater productivity
realized through saved lives and useful years require that employers pay for PPE. cost of that portion of the PPE currently
of labor. When one man is injured or The PPE payment rule will improve being paid for by the employee to the
disabled by an industrial accident or disease, efficiency and social welfare by employer. (See the Legal Authority
it is he and his family who suffer the most producing net benefits in conjunction section of the preamble, above, for
immediate and personal loss. However, that with correcting the deleterious details of OSHA’s interpretation of this
tragic loss also affects each of us. As a result outcomes resulting from the market issue.) Such a shift in who pays the
of occupational accidents and disease, over costs will represent a transfer within the
failures associated with the protection
$1.5 billion in wages is lost each year (1970
of occupational safety and health. economy and not a net cost to the
dollars), and the annual loss to the gross
national product is estimated to be over $8 economy. However, to the extent that a
C. Nonregulatory Alternatives change in payment results in more or
billion. Vast resources that could be available
for productive use are siphoned off to pay Market failures in general can often be better PPE being used, then this rule
workmen’s compensation and medical addressed through approaches other will lead to costs and benefits to the
expenses * * *. Only through a than regulation, and OSHA considered economy. OSHA believes that this rule
comprehensive approach can we hope to the potential for such approaches for the will result in improved PPE use and,
effect a significant reduction in these job market failures in the market for thus, will lead to both social costs and
death and casualty figures (Id. at 518–19). occupational safety and health. For benefits. This issue is discussed in more
As explained in detail above, Congress example, additional and more readily detail below.
established that employers should bear available information regarding To determine the extent of current
the cost of creating a safe and healthful occupational risks and practical PPE usage, the potential magnitude of
workplace, and thus directed them to solutions relevant for particular any shift in costs, and possible social
comply with health and safety standards workplaces could help raise awareness. costs, OSHA has developed a profile of
promulgated by OSHA. This rule is Efforts to provide direct assistance for industry PPE use and payment
consistent with the OSH Act to the reducing risks could be expanded. patterns.17 Most employers are already
extent this rule simply clarifies As a practical matter, however, paying for the PPE they provide to their
Congress’s determinations that frequently regulation is required to employees to comply with OSHA
employers must bear the cost of facilitate the transmission of standards. The most recent study of
compliance with OSHA standards. information. As outlined in the Legal collective bargaining agreements
OSHA has also determined that the Authority section, one goal of the rule showed that 55 percent of contracts
rule is necessary to further reduce the is to clarify the responsibility for mentioning safety equipment stipulate
significant risk associated with OSHA’s providing PPE. In the absence of clear that employers are to pay for PPE, while
standards requiring the use of PPE. It lines of responsibility stretching back to only 11 percent of such agreements
has become clear that employees the employer, there is often a failure to require the employee to pay for any
frequently fail to perceive the risk of provide the information. On another PPE 18 (BNA, 1995). Employers
having worn out PPE. Furthermore, the level, the failure of the employer to pay currently pay for PPE for a variety of
workers’ compensation system, aside for the PPE is interpreted by the reasons: Because of labor-management
from raising the cost of restitution, has employee as a sign the employer is not agreements; for workers’ compensation
introduced distortions into the market. serious about the importance of safety purposes; because if employers pay for
Workers’ compensation premiums are and health. the PPE, they know what kinds of PPE
frequently not experience-rated; many OSHA intends to continue to strive to their employees are using and they can
employers are thus given limited address occupational hazards through
incentive to reduce injuries—they end these alternatives to regulation where 17 This rulemaking primarily affects non-State
appropriate. However, due to the nature Plan States, as the majority of employees in State
up paying the same amount into the Plan States are already covered by requirements
system regardless of the level of safety of the market failures as described equal to or greater than this final rule.
at the workplace. above, these measures by themselves Approximately 59 percent of U.S. private sector
In most OSHA rulemakings, the cost would not sufficiently reduce risks. As workers work in states not covered by OSHA State
Plans for the private sector [BLS, 2004], and are
of providing safety falls squarely on the outlined in the Legal Authority section, thus affected by this rule.
shoulders of the employer, although in not only is there a significant risk 18 This figure includes payment for all types of
efficient markets, the cost of rulemaking existing to employees from the lack of safety shoes.
ensure that it is replaced when needed; disposition, and weighting of the directly at a greater level of detail. In
and because they can require responses. This survey constitutes the other industries, it was necessary to
standardized procedures for cleaning, best available evidence regarding PPE consolidate a few two-digit SICs into a
storing, and maintaining it. Employers usage patterns. single three-digit NAICS code.19
can control what PPE is used and how OSHA did not rely on this survey in
Table XV–1 shows OSHA’s estimate,
it is used, and thus can have greater formulating its industry profile for the
based on the survey, of the extent of PPE
assurance that they are in fact in proposed rule because the survey was
completed after the proposed rule was use in the non-State Plan State
compliance with OSHA’s standards, and
published. However, OSHA made the workplaces covered by the rule. A total
can ensure they will minimize any
survey available in its public docket of 24.9 million employees are estimated
liabilities associated with accidents
when it was completed in June 1999, to wear one or more kinds of PPE in
preventable by proper PPE use. Other
and provided the public an opportunity workplaces within OSHA non-State
reasons why employers prefer to pay for
to comment on its design and Plan States. Non-prescription safety
PPE, according to the expert panel
methodology (64 FR 33810). Some glasses are worn by approximately 11.3
convened by OSHA to obtain
stakeholders commented on the survey million employees, while 9.2 million
information on PPE patterns of use and
payment for the proposed rule, are: and OSHA has carefully considered employees wear gloves for abrasion
• The employer has experience with those comments. OSHA also thoroughly protection, 6.5 million wear safety
injuries that could have been prevented reviewed the results and the goggles, 5.8 million wear gloves for
by PPE use; methodology of the survey in preparing chemical protection, and 5.7 million
• The employer has received input this final rule and made some wear hardhats. Industries with the
from his/her insurance carrier; adjustments to it. largest number of PPE-wearing
• The employer is concerned about In particular, OSHA made two employees include administrative and
the likelihood of an OSHA inspection adjustments to the results of the survey support services (NAICS 561), with 1.9
(Ex. 1). to better reflect PPE usage patterns. million such employees; specialty trade
First, the Agency realized that retaining contractors (NAICS 238), with 1.8
E. Data on PPE Usage Patterns the weights for numbers of employees million such employees; and
The data relied on to develop this assigned from the original Dun’s professional, scientific and technical
industry profile come from a large-scale database identifiers was resulting in services (NAICS 541), with 1.7 million
nationwide telephone survey of 3,722 misleading information in some cases. employees. There are also four other
employers conducted for OSHA by OSHA has therefore reweighted the industries with more than one million
Eastern Research Group (ERG) in 1999 survey responses for numbers of PPE-wearing employees each: wholesale
(Ex. 14). The survey collected employees based on actual information merchants—durable goods (NAICS 423),
information on the extent to which from the survey (ERG, 2007). Second, in ambulatory health care services (NAICS
employers currently pay for their order to benchmark the data to recent 621), hospitals (NAICS 622), and food
employees’ PPE in the general industry, Census figures, ERG converted the services and drinking places (NAICS
construction, and maritime sectors. original Standard Industrial 722). In many cases, much of the PPE
Three basic types of information were Classification (SIC)-based results to a needed is concentrated in particular
collected about eight categories of PPE: North American Industrial items, such as gloves.
(1) Is the PPE used at the respondent’s Classification System (NAICS)-based BILLING CODE 4510–26–P
establishment?; (2) How many industry profile. In most industries, the
employees use the PPE?; and (3) Who two-digit SICs mapped directly into 19 For example, SICs 75 (Auto Repair) and 76
pays for the PPE? The survey report their three-digit NAICS counterpart. (Miscellaneous Repair Services) were consolidated
describes the sample design, Some industries (e.g., maritime) mapped into NAICS 811, Repair and Maintenance.
ER15NO07.017</GPH>
ER15NO07.018</GPH>
ER15NO07.019</GPH>
BILLING CODE 4510–26–C

ER15NO07.020</GPH>
Table XV–2 lists the rate of employer eye and face protection. The primary except footwear, employers pay an
payment for various PPE item exception to this pattern is foot average of 96.5 percent of the cost. For
categories, as indicated in OSHA’s 1999 protection (including metatarsal the items covered by this final rule,
survey. For nearly all industries, protection and chemical protective including metatarsal guards, weighted
payment rates are very high—in excess footwear, but not safety-toe shoes), for by the total societal cost (both the
of 90 percent. The largest exception to which the employer payment rate employee and employer share) of the
this pattern is marine cargo handling (including some sharing) is between 50 various items, employers are currently
(NAICS 48832), averaging 78 percent for percent and 55 percent .20 For all items paying approximately 95 percent of the
all items covered by this rulemaking. costs of PPE.
For most PPE items, rates of employer 20 Most items are either paid for by the employer BILLING CODE 4510–26–P
payment are very high—ranging or employee. However, some establishments,
between 96 percent for welding particularly for footwear, have established a variety employers typically pay approximately 50 percent
protective gear to almost 99 percent for of shared payment systems. In these systems, of the shared cost.
ER15NO07.021</GPH>

ER15NO07.022</GPH>
A few comments (Ex. 12: 173, 189) did not respond (Ex. 12: 173, 189) also [t]he average size of not-available
suggested that OSHA should compare suggested that the survey was more establishments, as reported by D&B, was
survey response rates to make sure there likely to be avoided by large employers: compared to that of establishments that
completed the survey. For stratum-one
is no bias. It was suggested that given Knowledgeable employers, especially large respondents, the average D&B–reported
that employers were aware OSHA was employers who employ the bulk of the employment size of not-available
conducting a survey of employer workforce, are aware of OSHA’s demands establishments was 3.9, compared to 5.6 for
payment for PPE, they tried to avoid that employers should purchase personal-PE those who completed the survey. The
participating in the survey, despite the * * *. Accordingly, employers who do not relatively small size of the not-available
assurance of confidentiality. It was pay for personal-PE would be less likely to establishments, however, is misleading
further asserted that ‘‘a substantial respond to a survey about payment for because respondents for some of these
percentage of the ‘not available’ category personal-PE for fear of adverse action by (especially those for whom D&B reported a
OSHA. This fear is the most obvious single employee) would have indicated, if
consists of employers who, if contacted, potential bias to the survey, yet ERG made no they had been reached, that they were self-
would have explicitly refused to attempt to test it. employed; their establishments, therefore,
participate’’ (Ex. 12: 173, 189). would have been judged out-of-scope.
Presumably, these employers would In fact, the survey results showed just Among successfully contacted respondents
avoid participation or refuse to the opposite pattern. Larger employers with five or fewer employees (as reported by
participate because they do not (strata 2 and 3) generally showed higher D&B), 56.3 percent reported they were self-
currently pay for their employee’s PPE. rates of response to the survey than employed. If the not-available respondents in
This, in turn, could have inflated the smaller employers (stratum 1) (61.7 stratum one were as likely to be self-
percent and 58 percent for strata 2 and employed as those successfully contacted,
survey’s findings of the percentage of
3, as opposed to 34.7 percent complete the average reported employment, adjusted
employers paying for PPE. for the projected number of screen-outs at
OSHA disagrees with these comments responses for stratum 1) (Ex. 14, Table each employment level, would be 5.3. This
and believes that survey bias did not 13). This stands in stark contrast with is very close to the average employment for
have a significant impact on the data the refusal rate for the survey, which stratum-one respondents who completed the
used. First, most of the establishments was fairly constant between 14.6 and survey (Ex. 14, pp. 67–69).
listed as ‘‘non-completes’’ were not 15.5 percent across the three strata. The A potential source of bias not
refusals.21 Of the 53 percent of non- lower response rate for stratum 1 discussed in comments was the
completed phone calls, 37.5 percent employers was entirely due to the ‘‘not possibility that the nonresponders
were not available; only 14.9 percent available’’ segment. Smaller employers skewed the sample in favor of
refused to participate. Many simply are less likely to maintain a daytime employers who used PPE (as opposed to
could not be reached given the time office staff, thus making it more difficult those employers who paid for PPE). It
allotted for the survey. As described by to reach them to conduct a survey. This may be that a disproportionate
ERG (Ex. 14, pp. 66–67): may be particularly true for the percentage of people who either
[a]mong the 2,963 not-available construction industry, which accounted declined to be interviewed directly, or
respondents, 1,862 (62.8 percent) were called for nearly half of the total called sample; simply did not return phone calls did so
fewer than six times. This group of potential fully one-third of the entire called
respondents was drawn almost entirely as because they considered the survey
sample were construction employers inapplicable to their workplace because
part of the supplemental sample, and, as with fewer than 20 employees (Ex. 14,
noted, interviewers stopped calling them they do not use PPE. In that case, the
when simple targets were achieved near the
p. 66, Table 12). In short, the pattern of sample ended up with a
end of the survey. For stratum-one, not- nonreponse is consistent with a simple disproportionate number of PPE users.
available respondents, fully 68 percent (1,407 inability to reach people on the phone, In any case, the estimated number of
out of 2,065) were part of this supplemental not a refusal to participate for fear of an PPE–using establishments
sample group that was called fewer than six adverse action from OSHA. approximately doubled between the
times. If calling had continued so that each Second, the response rate is not analysis in the proposed rule and the
of these numbers had been called at least six unusually low for surveys conducted in
times, the response rate would have been
analysis here, after incorporating the
the last decade. It is well documented results of the 1999 survey. In fact, the
significantly higher. Doing so, however,
would have resulted in oversampling the that the public at large, and probably estimated costs in this final analysis are
stratum one respondents. The response rate employers in particular, are suffering higher than they were for the proposed
for stratum-one establishments in the from an element of ‘‘survey fatigue’’, rule in large part due to significantly
primary sample was 52.6 percent; by given the large number of survey greater reported use of PPE in certain
comparison, the response rate for stratum- requests over the phone and on the items than indicated in the previous
one establishments in the entire sample was Internet—people are simply less likely OSHA telephone survey on PPE in 1989.
34.7 percent.22 to agree to do any particular survey, For example, the proposed rule, based
Comments speculating that employers unless there is direct payoff. In addition, on the 1989 survey data found 10.6
were attempting to avoid mentioning individuals and employers are more million employees using chemical and
that they do not pay for PPE and thus likely to ‘‘hide’’ behind voice mail and non-chemically protective gloves (64 FR
answering machines than they were a 15417). The 1999 survey found a
21 The ‘‘non-completes’’ were divided primarily
few decades ago (Curtain, et al, 2005). combined total approximately 50
between ‘‘refusals’’ and ‘‘not available’’. ‘‘Refusal’’
is a term of art with regard to surveys which Thus, it would be improper to assume percent higher. Much of this increase
denotes respondents who tell the questioner that the failure to participate represents may have been related to the
explicitly that they do not wish to participate in the a response to this particular survey. effectiveness of the 1994 PPE
survey. ‘‘Not available’’ describes the group of those
who could not be reached; most ‘‘non-completes’’ Third, an analysis of the response rate rulemaking at increasing the use of the
were ‘‘not available’’, as opposed to ‘‘refusals’’. of small establishments in the survey PPE. At the same time, employers may
22 As discussed in the ERG report [Ex. 14], the suggests that many of the very small not have bothered to participate in the
survey targeted three employment size establishments OSHA did not reach survey because they simply did not use
establishment strata, Stratum 1 (1–19 employees),
Stratum 2 (20–499 employees), and Stratum 3 (500
simply were not under OSHA PPE, thus skewing upward the numbers
or more employees), to ensure that each size group jurisdiction by virtue of being self- of employers using PPE. OSHA has no
was adequately represented in the sample. employed: specific information that this occurred;
if it did, however, then the cost to be less likely to purchase adequate PPE injuries 23 by body part (derived from
employers (and society) would be less and replace it when necessary, and are 2005 lost work day data and shown in
than estimated in this analysis. The more likely to make cosmetic repairs, column A) 24 by the preventability
Agency does not believe the costs are hide defects, or purchase used PPE aged factors OSHA developed in 1994 for the
overestimated in this regard, but beyond its service life. types of PPE examined (column B) (59
acknowledges that there are several Thus, at least two problems can occur FR 16352).25 In the 1994 analysis, most
different potential, and at least partially when employers fail to pay for PPE: injuries were not considered
offsetting, sources of bias in the survey Either the PPE is not worn in cases preventable by PPE. For example,
results. where it is needed to protect against sprains and strains (nature) and injuries
OSHA recognizes that the existence of injury or illness, or the PPE that is worn caused by overexertion (circumstance),
non-responses is a source of uncertainty is inadequate. The consequences of
were not considered to be preventable
with regard to the costs and benefits of these failures are the same: Employees
by PPE. On the whole, approximately
the standard. The Agency has performed are exposed to chemical, physical, or
safety hazards in the workplace, which, one-third of injuries in general industry
a sensitivity analysis to probe the effects
of underestimating the extent to which in turn, result in injuries, illnesses, and were considered preventable with PPE.
employees currently pay for PPE. death. However, within this group, it was
Finally, it should be noted that absent In the proposed rule, OSHA estimated apparent that PPE could be particularly
vastly greater resources and a the quantitative differences in the effective in protecting certain body parts
substantially greater level of intrusion misuse or nonuse of PPE when (e.g., eye injuries were estimated to be
on employers, it would be impossible, employers pay for PPE versus when 95 percent PPE–preventable; foot and
even on a subsample of the survey employees pay for PPE. OSHA toe, 75 percent; face and ear, 68 percent;
responders, to verify whether or not the preliminarily determined that the rate of and hand and finger, 63 percent). These
behavior of non-responders is nonuse or misuse of PPE would be estimates were based on a careful
significantly different than responders. approximately 40 percent for employee review of the descriptions of the
Given that many employers could not be purchased PPE verses 15 to 20 percent accidents. Over 90 percent of these
reached by phone, it ultimately might be for employer purchased PPE. This injuries were incurred by production
necessary to send someone in person to quantitative estimate was provided by employees in the subset of high-hazard
interview the non-responders. OSHA is one member of OSHA’s expert panel, industries selected for study in the PPE
limited in its resources and would be but was consistent with the statements survey. This analysis did not cover the
unable to perform this type of analysis. of other panelists, as well as with construction sector. OSHA assumes that
On balance, OSHA is confident that the OSHA’s enforcement and regulatory the same preventability factors by body
results of this survey represent the best experience. Most panel members part would apply in construction as in
available evidence on the profile of indicated that if the employer did not the general industry and maritime
payment patterns for PPE in industry. pay for PPE, the PPE was typically not sectors (see column B). The full analysis
fully provided, in some cases falling of the injuries judged to be preventable
F. Technological Feasibility short by a wide margin. While through the proper use of PPE is
This rule does not change any PPE commenters disagreed on whether the presented in detail in the Regulatory
requirements, but affects only the issue underlying premise behind employer Impact Assessment of the 1994
of who pays for PPE required by OSHA payment for PPE was correct, there were rulemaking (Docket S060, Ex. 56).
standards. These PPE requirements have no alternative point estimates provided
BILLING CODE 4510–26–P
already been found to be technologically (other than stating there was no
feasible in other rulemakings. Personal difference between the two) to the 23 This analysis does not examine the impact of
protective equipment is widely aforementioned estimates. Thus, in this the rule on occupational illnesses, such as contact
manufactured, distributed, and used in final rule, OSHA is continuing to use dermatitis prevented by chemically protective PPE,
workplaces in all of the industries the point estimates given in the but OSHA is confident the rule will produce
covered by OSHA standards. The rule proposal as a basis for the benefits in the additional benefits not accounted for here.
24 OSHA extrapolated total injuries by body part
thus raises no issues of technological final rule. (However, as explained from the number of detailed lost workday cases
feasibility. below, OSHA has also conducted a with days away work [BLS, 2006b] by multiplying
G. Benefits of the Final Rule sensitivity analysis to evaluate concerns by the overall ratio of total recordable cases [BLS,
by commenters that OSHA’s benefits 2006a] to cases with days away from work. Body
OSHA concludes in this final rule that estimate in the proposal was too high.) parts not included in this analysis: Trunk (e.g., back
when employers do not provide and pay & shoulder); wrist and other upper extremities
1. Benefits From Injuries Prevented except hand and finger; knee and other lower
for PPE, it is often not worn, is worn extremities except foot and toe; body systems,
improperly, or is not cared for and To estimate the benefits of the final multiple body parts; and ‘‘other body parts’’.
replaced appropriately. (See the Legal rule OSHA calculated the total number Together these excluded cases account for about
Authority section for OSHA’s analysis 75% of LWD injuries.
of injuries prevented annually by 25 To calculate the preventability factors, OSHA
of this issue.) When employees are requiring employers to pay for PPE by reviewed 1,170 OSHA Form 200s describing almost
required to pay for their own PPE, they body part. OSHA used the point 64,000 injuries. The profile of injuries, as defined
are likely to minimize PPE costs and estimates above and the steps which are by body part, very closely tracked those in BLS’s
thus fail to purchase proper personal illustrated in Table XV–3. injury data base [OSHA 1994, pp. V–11–13].
Information on the nature of the injury and the
protective equipment. Further down the OSHA determined the number of circumstances surrounding the accident was used
wage scale, these problems can be injuries judged to be preventable by to determine the extent to which PPE would have
expected to worsen, and employees will multiplying the total number of prevented the injury.
BILLING CODE 4510–26–C requirements are already in place. Next OSHA estimated the percentage
Column C shows the number of (These reduction factors are shown in of PPE-related injuries where employees
preventable injuries based on the 1994 column D.) The resulting totals of paid for their own PPE. OSHA estimates
preventability factors and the 2005 data preventable injuries, which includes that if employees are required to pay for
on total injuries. OSHA then reduced
both employee or employer paid PPE, their own PPE, this equipment will be
the numbers shown in column C by the
are shown in Column E. lacking or inadequate 40 percent of the
percentage of employees in State Plan
time, while if employers pay for PPE,
ER15NO07.023</GPH>
States where employer-payment
the equipment will be lacking or own PPE by 0.4 and dividing this related injuries where the employee is
inadequate 17.5 percent of the time. amount by the sum of the product of the paying for PPE (shown in column G).
Using these parameters, OSHA number of employees paying for their Once the number of preventable
estimates that employees who pay for own PPE and 0.4 and the product of the injuries among the employee-paying
their own PPE are 2.3 times (0.4 divided number of employees with employer- group is derived, it has to be recognized
by 0.175) as likely as employees whose paid PPE and 0.175. The numerator of that not all of these will be preventable
PPE is paid for by their employers to this ratio is the number of employees by switching payment systems.
suffer an injury that would otherwise be required to pay for their own PPE whose Requiring employer payment will
preventable by PPE use. equipment will be lacking or reduce the injury rate to the level
The number of such preventable inadequate, while the denominator is currently suffered by employees with
injuries, however, depends on the the total number of employees (both employer-paid equipment. As outlined
percentage of employees that currently employee- and employer-paid PPE above, employees paying for their own
pay for their own PPE. The larger this equipment are 2.3 times (0.4/0.175) as
users) whose equipment will be lacking
percentage is, the greater of number of likely to be injured as those with
or inadequate. These percentages are
injuries are potentially preventable. employer-paid equipment. The total
Percentages of preventable injuries shown in column F. Assuming injuries number of injuries prevented by
among employees paying for their own occur in proportion among employers, switching to employer payment equals:
PPE were estimated by multiplying the applying the resulting percentages to # of PPE-related injuries among the
number of employees paying for their column E yields the total number of PPE employee-paying group multiplied by
percent of time PPE is not worn when employers pay

1−
percentt of time PPE is not worn when employees pay
In terms of the specific numbers, this OSHA disagrees with this commenter 2. Benefits From Prevented Fatalities
percentage reduction is calculated as to the extent the commenter is
Although the primary benefits from
1-((0.175/0.4) , or 1-0.4375, or 56.3 suggesting that employer payment for this rule derive from the non-fatal
percent, as shown in column H. PPE will not help prevent injuries. First, injuries and associated costs that will be
Reducing the number of injuries in the this represents one company’s averted by requiring employers to
employee-paying group (column G) by experience, which is not generalizable assume the full costs of the covered
56.3 percent results in the total number to the economy as a whole. OSHA’s types of PPE, some benefits are
of injuries prevented by this analysis of injuries allows for the fact associated with the preventability of
rulemaking, as shown in column I. that many injuries would not be fatal injuries. Although most injuries
As indicated in Table XV–3, this preventable by PPE; this company may preventable by appropriate PPE would
analysis indicates that the final rule have an unusually large number of such not otherwise result in fatalities, certain
would avert approximately 21,798 cases. The commenter suggests, fatal head injuries, particularly those
injuries annually.26 OSHA provides a correctly, that engineering controls are classified as ‘‘struck by’’ or ‘‘struck
sensitivity analysis of this below, to the logical first line of defense against against’’ injuries, would be prevented by
reflect uncertainties in the strength of hazards. The company may have an PPE (i.e., hardhats). Recent data on
the employer payment effect. excellent program in this regard. occupational fatalities collected by the
While a number of commenters had Second, the comment refers to cases Bureau of Labor Statistics show that a
concerns about the rule, there was where PPE is being worn and prevented yearly average of 112 such fatalities
general agreement on the value of PPE accidents; it says nothing about any occurred in general industry and
in preventing injuries (see, e.g., Exs. 12: cases where PPE was not being worn maritime, and 43 in construction during
2, 4, 6, 9, 10, 11, 13, 15, 20, 21, 32, 58, and injuries resulted. A finding that the period 2003 through 2005 (BLS,
66, 79, 100, 101, 105, 110, 113, 117, 130, suggests that PPE prevents only a few CFOI, 2004).
134, 149, 184, 190, 210, 218, 230, 233, injuries is dramatically at odds with OSHA estimated the number of
247, 248). One commenter questioned most of the rulemaking record both in fatalities likely to be prevented by the
the underlying basis for OSHA’s this rulemaking and its predecessor in rule by first considering the percentage
estimates in part because their 1994. In both cases PPE was found to be of ‘‘struck by’’ and ‘‘struck against’’
experience has been that relatively few of considerable value in reducing fatalities that would be prevented if
injuries are actually preventable by PPE. injuries. proper head PPE had been used. Many
[w]e have approximately 50 accidents per types (or ‘‘events’’) of fatal head injuries
Finally, it is worth noting the Agency that would not be prevented by
year. I read every one of them. I would say
is not claiming a dramatic percentage hardhats, such as those resulting from
in a given year there may be at most one or
two accidents where the personal protective reduction in total injuries as a result of falls, some explosions, and most
equipment was a factor in preventing or the rule, in part because most transportation-related accidents, have
minimizing the injury. Remember, that is the equipment is already paid for by most not been included in this analysis. In
barrier. That is the last resort is the personal employers. A reduction of 1 or 2 cases contrast, PPE should be relatively
protective equipment. As we all know, there out of 50 represents a relatively small effective in preventing fatal ‘‘struck by’’
should be other steps taken to prevent an number within one business unit, but and ‘‘struck against’’ head injuries.
injury before it gets to that point (Tr. 146).
extrapolated across the economy as a Additional fatalities that would not be

whole represents a large number of prevented include crushing accidents
26 Within the 17,025 injuries estimated to be
injuries prevented, resulting in a (force exceeds the protection of the head
prevented in general industry and maritime, the
Agency estimates 214 will be in maritime, the substantial net benefit for the nation as gear) and instances where the hazard
ER15NO07.015</MATH>
remainder in general industry. a whole. could not be anticipated and the victim
could not reasonably be judged to be at approximately 59.1 percent of these number of fatalities that are potentially
risk and required to use PPE (passersby, preventable fatalities are estimated to preventable.
for example.) For this analysis, OSHA occur in non State-Plan States.27 28 Data from OSHA’s PPE payment
estimates that 75 percent of fatal ‘‘struck Accordingly, the actual number of survey suggest that about 1.2 percent of
by’’ and ‘‘struck against’’ injuries would fatalities preventable by this rule is general industry and maritime
otherwise be prevented by proper use of approximately 50 in general industry employees and 4.1 percent of
head protection. and maritime, and 19 in construction. In construction employees pay for their
Applying the 75 percent estimate addition, only a subset of these own head PPE. Combining these
described above to the total number of preventable fatalities would be affected percentages with the point estimates for
annual fatalities from the BLS data (112 by switching payment systems, i.e. the PPE nonuse/misuse discussed above (40
in general industry and maritime, and subset where employees are currently percent nonuse/misuse when employees
43 in construction) results in an paying for their own PPE. This is pay for PPE versus 17.5 percent nonuse/
estimated 84 fatalities in general misuse when employers pay for PPE),
because the number of preventable
industry and maritime and 32 fatalities OSHA calculated the ratio of employee
fatalities affected by this rule depends
in construction that would be paid-PPE-related fatalities to all PPE
preventable by wearing hardhats if all on the percentage of employees that related fatalities (i.e., the sum of the
the fatalities occurred in industries currently pay for their own PPE. The employee- and employer-paid PPE
within OSHA jurisdiction. However, larger this percentage is, the greater the fatalities).
0.4 × E p
= where Ep = # employees paying PPE and En = # employees with employer-paid PPE.
( 0.4 × E ) + ( 0.175 × E )
p n
Using the same methodology used for severe injuries that are now occurring employees on the importance of wearing
non-fatal injuries, the ratio for general either because employee-provided PPE PPE. The record is also clear that certain
industry is equal to (0.40*0.012)/ offers inadequate protection or because sectors, such as construction, have
(0.40*0.012 + 0.175*0.988) = 2.8 the employee arrives on site without the relatively high rates of employee
percent. For construction the ratio is necessary PPE. For example, OSHA turnover (BLS, 2004), and even where
equal to (0.40*0.041)/(0.40*0.041 + estimated in the Regulatory Impact they are not so high, they do not remain
0.175*0.959) = 8.9 percent. Analysis for 29 CFR Part 1926 Subpart static. If the rule has the effect of
In short, OSHA estimates that M that fall protection systems would engendering a greater appreciation of
employees paying for their own PPE prevent nearly 80 fatalities and 26,600 the importance of wearing PPE, then
suffer 2.8 percent (1.4 fatalities lost workday-injuries annually. To the this effect would logically extend into
annually) of the fatal ‘‘struck by’’ and extent that employers supply more workplaces where employers pay for the
‘‘stuck against’’ head injuries in general effective harnesses and lanyards than equipment currently, through employee
industry and 8.9 percent (1.7 fatalities those currently being provided by turnover as well as a general shift in
annually) of the fatal ‘‘struck by’’ and employees, or ensure that this norms of behavior in the industry. The
‘‘stuck against’’ head injuries in equipment is available for use by the analysis currently assumes that
construction. However, it is not the case employee, this rule will prevent deaths employees will fail to wear PPE 15–20
that all of the employee-paying and injuries caused by falls. However, at percent of the time even when the
preventable fatalities (1.4 and 1.7 in the current time, the Agency does not employer pays for PPE. Given that
general industry and construction have sufficient detail on these accidents employers pay for most PPE items most
respectively) will be prevented by to quantify the benefits of this effect. of the time currently (typically greater
switching payment systems because than 95 percent of the time), if this
there is still a 17.5 percent nonuse/ 3. Uncertainties
percentage were to fall even a small
misuse rate among the employer-paying As outlined elsewhere in this amount as a result of this rulemaking,
group. OSHA’s estimate that requiring analysis, benefits associated with the the benefits would be substantially
employer payment will reduce the rate rule are subject to uncertainty with greater than assumed in this analysis.
of misuse or nonuse of PPE from 40 to respect to the number and types of
17.5 percent implies a resultant 56.3 accidents that will be avoided or 4. Willingness To Pay for Injuries and
percent reduction ((0.4–0.175)/0.40) in mitigated by the use of PPE and cost and Fatalities Avoided
fatal head injuries among employees benefits estimates are further subject to OSHA also performed an analysis of
who pay for their own PPE. Thus OSHA uncertainty due to the survey’s non- the value of injuries and fatalities
estimates that 0.8 fatal head injuries response levels. Further, this analysis avoided based on a willingness to pay
(0.563 times 1.4) in general industry and assumes that the effect of the rule will approach. This approach employs the
0.9 fatal head injuries (0.563 times 1.7) be limited to situations where theory of compensating differentials in
in construction will be prevented employees are now required to pay for the labor market. A number of academic
annually by this rule. their own PPE. This, however, while a studies have drawn a correlation
The Agency also believes that the simplifying assumption, may not be between higher risk on the job and
final rule will achieve substantial wholly accurate. As indicated in the higher wages, suggesting that employees
benefits in the area of fall protection, Legal Authority section, there is demand monetary compensation in
particularly in construction. The rule evidence that employer payment for return for a greater risk of injury or
will prevent a number of fatalities and PPE is important to send a signal to fatality. OSHA has used this approach
ER15NO07.016</MATH>
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.
in many recent proposed and final rules injuries, they focused primarily, Accordingly, this brings total the total
(See, e.g., 71 FR 10099, 70 FR 34822). particularly for many of the higher monetized value of benefits to $349
In performing its willingness to pay valuations, on lost workday injuries. million.
analysis, OSHA uses an estimate of The Agency has conservatively chosen An alternate approach for valuing
$50,000 per lost workday-injury to apply this value to only cases
avoided, based on two studies: Viscusi, injuries is the direct cost approach,
resulting in days away from work, even
1993, and Viscusi & Aldy, 2003. In his which OSHA used in the analysis for
though there would be additional value
1993 paper (Viscusi, 1993, p. 1935), attached to the larger class of injuries, the proposal. A full discussion of this
Viscusi reviewed the available literature especially cases resulting in restricted estimate is provided in an Appendix at
and found the value of lost workday work. As shown in Table XV–4, the the end of the Final Economic Analysis.
injuries to be: ‘‘[i]n the area of $50,000, Agency estimates the value of injuries Using a direct cost approach to
or at the high end of the range of prevented using this approach to be monetize benefits for injuries avoided,
estimates for the implicit value of $337 million per year. and a willingness to pay approach to
injuries overall.’’ His 2003 paper with By this methodology, a single fatality monetize fatalities avoided, OSHA
Aldy broadly reaffirmed this, finding avoided is valued at $7 million [Viscusi estimates total benefits to be $228.3
the literature to estimate the value in the 2003, p. 63]. As explained above, OSHA million (See Table XV–14).
$20,000-$70,000 range. While the estimates that 1.7 fatalities may be BILLING CODE 4510–26–P
literature covered many types of prevented each year by this rule.

ER15NO07.024</GPH>
H. Costs of Compliance to Employers • Reusable chemical protective this, OSHA used a factor that was equal
OSHA also used the survey results to clothing is assumed to be replaced every to the PPE lifetime (in fractions of a
estimate the costs to employers of 6 months and to cost $41.30, while year) for PPE types with lifetimes less
compliance with the final rule. Based on chemical protective gloves costing $3.50 than one year and equal to 1 for PPE
the survey, OSHA estimated, by PPE are assumed to be replaced every 10 with lifetimes of one year or greater. For
type, the percentage of PPE users in working days (20 times a year), based on example, suppose that the turnover rate
non-State Plan States whose employers prices in the safety equipment catalog is 10 percent and the lifetime of the
bear the full PPE costs and the (Lab Safety, 2007). equipment is six months (0.5 years). If
percentage of PPE users in non-State • Paragraph (h)(3) of the revised rule the hiring of new employees is spread
Plan States whose employers pay some requires employers to pay only for the out evenly over the year, half the new
share of the PPE costs. The remaining cost of metatarsal guards, as opposed to employees can be provided with
employees are those who now pay for the entire footwear item. The equipment that would have been
their own PPE. Under the final rule, annualized cost of external metatarsal replaced even without employee
employers will have to assume the PPE guards, assuming replacement every 2 turnover. In this case, the additional
costs for these employees and, in years, is $15.49, based on a unit cost of PPE required as a result of turnover
addition, make up the share of PPE costs $28 (Lab Safety Supply, 2007, Omark would be 5 percent (10 percent times
currently borne by employees who pay Safety Online, 2007, Working Person’s 0.5).
some portion of the equipment expense. Store, 2007, Grainger, 2007, Alpenco,
Table XV–5 presents compliance costs
OSHA also determined unit cost 2007).
of the final rule to employers, by NAICS
estimates for PPE, based in part on To derive the incremental cost to
employers of compliance with the final code. Table XV–6 summarizes the cost
assumptions used in the Preliminary estimates by general category of PPE.
Economic Analysis for the proposed rule, for each type of PPE, OSHA (a)
multiplied the unit PPE cost by the Total compliance costs are estimated to
rule (64 FR 15425), updated according be $85.7 million for all establishments.
number of employees in non-State Plan
to current price data obtained from The cost of gloves for abrasion
States who now pay for their equipment
safety equipment vendors. The unit protection is estimated to be $27.8
and (b) added to this, the unit PPE cost
costs represent annualized equipment million, or 32.5 percent of total costs.
multiplied by 1 minus the percentage
costs, based on the prices and the Chemical protective footwear is
share of cost now paid by employers
estimated lifetimes of the PPE items, estimated to be $17.6 million, or 20.5
who share costs, multiplied by the
and are as follows: percent of total costs. Metatarsal guards
number of employees in non-State Plan
• Based on prices from a current States who now pay some portion of the for footwear are estimated to be $13.3
safety equipment catalog, hardhats cost of their PPE. million, and gloves for chemical
costing $8.20, non-prescription safety Costs were adjusted for additional protection $10.2 million, at 15.5 percent
glasses costing $6.20, and face shields PPE expenditures resulting from and 11.8 percent of total costs
costing $14.90 are all assumed to a have employee turnover, based on turnover respectively.
a useful life of one year. estimates prepared by the Bureau of Several commenters stated that the
• Chemical splash goggles costing Labor Statistics from their Job Openings cost analysis was unrealistic in
$6.20 and safety goggles costing $4.65 and Labor Turnover Survey (JOLTS) assessing the costs in their industries.
are assumed to be replaced every six (BLS, 2004). Two factors determine the Representatives from the drilling
months with annualized costs of $13.05 impact of turnover on compliance costs. industry (Ex. 12: 91) stated that the
and $9.79, respectively. First, if the protective equipment is analysis failed to take into consideration
• Gloves for abrasion protection transferable to other employees and can the high rate of cotton glove usage in
costing $8.30 are assumed to be be reused, turnover does not affect their industry, as they reported
replaced four times a year resulting in compliance costs. In this case, departing employees going through approximately
an annualized cost of $34.64 (Lab employees’ equipment can be passed on one pair a day. OSHA questions
Safety, 2007). to new employees. Second, for non- whether the gloves described by the
• Welding helmets were assumed to transferable PPE, the lifetime of the commenter constitute PPE; it is not clear
have a life expectancy of 2 years and to equipment determines the number of for what safety or health purpose the
cost $40.00; welding goggles were additional purchases required for new gloves are being worn. If the gloves are
assumed to have a life expectancy of 1 employees.29 For example, turnover has being used for the purposes of abrasion
year and to cost $13.62 (these less impact for PPE types with short protection, more durable and protective
assumptions yield a combined lifetimes, because such equipment is alternatives are available than cotton
annualized welding unit cost of $36.69). regularly replaced even in the absence gloves. Regulatory analyses generally
According to OSHA’s expert panel, of employee turnover. To account for assume employers adopt the least-cost
welders need both helmets and goggles option, which may differ from the
29 This analysis assumes the following items are
at different times of the year. pattern of employee purchases; this
transferable: chemical splash goggles, faceshields,
• Fall protection (body harness or hardhats, metatarsal protection, splash aprons, applies to both the quantity (e.g., bulk
belt, and lanyard) is assumed to have a chemical protective clothing, body harnesses, body discounts) and quality of PPE
life expectancy of 2 years, and to cost belts, lanyards, welding helmets, welding goggles purchased. This analysis assumes
$93.90 (harnesses), $45.70 (belt), and and ear muffs. Non-prescription safety glasses, employers will use leather or Kevlar
safety goggles, chemical protective footwear, gloves
$51.10 (lanyards), respectively, yielding for abrasive and chemical protection, protective
gloves for protection, a costlier (per
a combined annualized fall protection welding clothing and ear inserts were assumed to unit), but more durable form of
unit cost of $80.20. protection.
be non-transferable.
ER15NO07.025</GPH>
ER15NO07.026</GPH>
BILLING CODE 4510–16–C overestimated. These will tend to offset Nonetheless, it would be inconsistent
In a separate but related issue, this each other so that there is no systemic and potentially in error to project a final
same commenter indicated that, from bias. For example, based heavily on one estimate of costs to the economy
talking with their members, they survey response, the analysis suggests without taking into account the full
thought OSHA’s survey had that employers in wholesale trade are pattern of behavior indicated by the
underestimated the share of PPE which expected to have particularly heavy survey.
employees were paying for. OSHA costs for certain PPE items, notably fall There may be instances where this
recognizes that such results are

protection. However, in OSHA’s analysis either fails to consider certain
inevitable in relying upon a sample.
professional judgment, uses of these specialized PPE or PPE use patterns in
There will be instances where certain
costs are underestimated. Likewise, PPE items in this sector are not as high particular industries that are more
as the survey would suggest. expensive than calculated. Alternately,
ER15NO07.027</GPH>
there will be situations where costs are
there will be instances where the currently paid for by employees. To the To assess the potential economic
analysis has overestimated the cost of extent employees choose to bring their impacts of the final rule, OSHA
PPE for various industries. However, as own PPE into the workplace after the compared the anticipated costs of
indicated later in this analysis, given the rule is issued, costs will be overstated. achieving compliance against revenues
very limited costs of PPE as a percentage and profits of PPE-using establishments
I. Economic Feasibility and RFA
of revenue and profits, its comparatively in non-State Plan states. Per-
Certification
‘‘level’’ distribution as a per employee establishment average costs were
cost (i.e., costs as function of the size of A standard is economically feasible if calculated by dividing total compliance
employment), as well as the established it does not threaten massive dislocation costs for each industry by the number of
patterns of employee payment currently to or imperil the existence of an affected establishments. OSHA then
for most types of PPE in most industries, industry. See United Steelworkers of compared baseline financial data (from
cost estimates for particular industries America, 647 F.2d at 1265. That a the U.S. Internal Revenue Service,
would generally need to be off by well standard is financially burdensome or Corporation Source Book, 2004) with
over an order of magnitude before these threatens the survival of some total annualized costs of compliance to
would begin to raise issues of economic companies in an industry is not compute compliance costs as a
feasibility. sufficient to render it infeasible (Id. at percentage of revenues and profits. This
It should also be noted that since this 1265). The cost of compliance with an impact assessment is presented in Table
analysis is accepting the survey results OSHA standard must be analyzed ‘‘in XV–7.
at face value, there has been no attempt relation to the financial health and This table is considered a screening
to correct for situations where OSHA profitability of the industry and the analysis because it measures costs as a
already requires payment for PPE, e.g., likely effect of such costs on unit percentage of pre-tax profits and sales
the bloodborne pathogens standard and consumer prices.’’ (Id.) [The] practical but does not predict impacts on pre-tax
numerous single substance standards. question is whether the standard profits and sales. This screening
To the extent that employers are not threatens the competitive stability of an analysis is used to determine whether
adhering to existing requirements in this industry, or whether any intra-industry the compliance costs potentially
regard, these costs are overstated in this or inter-industry discrimination in the associated with the standard would lead
rulemaking. standard might wreck such stability or to significant impacts on establishments
Finally, this analysis makes no lead to undue concentration (Id.) (citing in the affected industries. The actual
attempt to estimate to what extent Industrial Union Dept., AFL–CIO v. impact of the standard on the profits
employees will continue to voluntarily Hodgson, 499 F.2d 467 (DC Cir. 1974)). and revenues of establishments in a
bring their own PPE into the workplace. The courts have further observed that given industry will depend on the price
Rather, this analysis assumes employers granting companies reasonable time to elasticity of demand for the services
will pay 100 percent of the cost of the comply may enhance economic sold by establishments in that industry.
PPE covered by this rulemaking feasibility (Id.). BILLING CODE 4510–26–P
ER15NO07.028</GPH>

ER15NO07.029</GPH>
Price elasticity refers to the rate as before but would produce 1 annual receipts. Instead, OSHA is using
relationship between the price charged percent less of its services. Consumers 500 employees and 20 employees as a
for a service and the demand for that would effectively absorb the costs simple method of screening for
service; that is, the more elastic the through a combination of increased significant impacts across the large
relationship, the less able an prices and reduced consumption; this, number of industries potentially
establishment is to pass the costs of as the court described in ADA v. affected by the rule. Because the survey
compliance through to its customers in Secretary of Labor, is the more typical used the 500- and 20-employee levels, it
the form of a price increase and the case. is appropriate to retain these levels in
more it will have to absorb the costs of As indicated in Table XV–7, the
the final rule. This approach also avoids
compliance from its profits. When screening analysis indicates the highest
the interpolation that would be
demand is inelastic, establishments can revenue and profit impacts are for
NAICS 48832, Marine Cargo Handling necessary because the underlying
recover all the costs of compliance
simply by raising the prices they charge (0.017 percent of sales and 0.56 percent industry profile data do not correspond
for that service; under this scenario, of profits); NAICS 336611, Ship with the NAICS-specific size categories
profits are untouched. On the other Building and Repairing (0.013 percent established by the SBA. (OSHA notes
hand, when demand is elastic, of sales and 0.24 percent of profits); that, for almost all of the industries
establishments cannot recover all the NAICS 238, Specialty Trade Contractors affected by this rulemaking, the SBA
costs simply by passing the cost (0.008 percent of sales and .21 percent size definitions fall within the 20- to
increase through in the form of a price of profits); and NAICS 485, Transit and 500-employee range.) OSHA believes
increase; instead, they must absorb Ground Passenger Transportation (0.006 that this screening approach will
some of the increase from their profits. percent of sales and 0.3 percent of capture any significant impacts on small
In general, ‘‘when an industry is subject profits). Over the entire set of affected firms in affected industries.
to a higher cost, it does not simply industries, the average impact on sales As a conservative approach, in order
swallow it, it raises its price and is 0.001 percent and the average impact
to analyze the impact on firms with
reduces its output, and in this way on profits is 0.03 percent.
Costs of this magnitude do not fewer than 500 employees, OSHA
shifts a part of the cost to its consumers
threaten the financial health of even the divided the total annual cost in each
and a part to its suppliers,’’ (ADA v.
Secretary of Labor, 984 F.2d 823, 829 most marginal firm. Since most NAICS for establishments with fewer
(7th Cir. 1993)). employers in most industries already than 500 employees by the total number
Specifically, if demand is completely pay for PPE, the major competitive of firms with fewer than 500 employees
inelastic (i.e., price elasticity is 0), then effect of the rule is to limit any small in that NAICS. This approach tends to
the impact of compliance costs that short-term competitive advantage a few overstate the impact because some of
amount to 1 percent of revenues would firms gain by not paying for PPE, i.e., by the costs will be for establishments with
be a 1 percent increase in the price of requiring their employees to pay for PPE fewer than 500 employees that are part
the product or service, with no decline that other employers in their industry of firms with more than 500 employees.
in demand or in profits. Such a situation pay for. As shown elsewhere, many These calculated costs per firm with
would be most likely when there are firms already pay for PPE because it fewer than 500 employees were then
few, if any, substitutes for the product proves cost-effective. Many firms will compared to average sales per firm with
or service offered by the affected sector find that, when benefits as well as costs fewer than 500 employees and average
or if the products or services of the are considered, the costs of PPE are pre-tax profits per firm with fewer than
affected sector account only for a small more than offset by these benefits. 500 employees. The same methodology
portion of the income of its consumers. It should be noted that these impacts
was used to analyze the impact on firms
If the demand is perfectly elastic (i.e., could be nine times higher without
with fewer than 20 employees.
the price elasticity is infinitely large), reaching the level of 5 percent of profits
then no increase in price is possible, or 1 percent of revenues in any industry. The results of these analyses are
and before-tax profits would be reduced Thus, in spite of uncertainties about shown in Tables XV–8 and XV–9, which
by an amount equal to the costs of costs, this rule does not come close to demonstrate that the annualized costs of
compliance (minus any savings a level threatening the economic compliance do not exceed 0.035 percent
resulting from improved employee viability of any affected industry. For all of sales or 0.65 percent of profits for
health and reduced insurance costs). the aforementioned reasons, the Agency small firms in any industry, whether
Under this scenario, if the costs of concludes the final rule is economically defined as fewer than 500 employees or
compliance represent a large percentage feasible. as fewer than 20 employees. It should be
of the sector’s profits, some OSHA also assessed the economic noted that these impacts could be 8
establishments might be forced to close. impact of the rule on small firms within times higher without reaching the level
This scenario is highly unlikely to each affected industry. Impacts on two of 5 percent of profits or 1 percent of
occur, however, because it can only size categories of small firms were revenues that OSHA uses to determine
arise when there are other goods and estimated: Firms with fewer than 500
if a Regulatory Flexibility Act (5 U.S.C.
services that are, in the eye of the employees, and firms with fewer than
605) Analysis (RFA) is necessary. Thus,
consumer, perfect substitutes for the 20 employees. In using 500 employees
and 20 employees to characterize firms in spite of uncertainties about costs, it
goods and services the affected
for this screening analysis for impacts, is very unlikely that this rule would
establishments produce or provide.
A common intermediate case would OSHA is not proposing definitions of even rise to the level of needing more
be a price elasticity of one. In this small business that are different from detailed analysis beyond this screening
situation, if the costs of compliance those established by the Small Business analysis. Based on these analyses, in
accordance with the Regulatory
amount to 1 percent of revenues, then Administration (SBA) in its ‘‘Table of

production would decline by 1 percent Size Standards’’. The SBA size Flexibility Act (5 U.S.C. 605), OSHA
and prices would rise by 1 percent. The definitions are NAICS-code specific, certifies that the rule will not have a
sector would remain in business and and are generally expressed either in significant impact on a substantial
maintain approximately the same profit terms of number of employees or as number of small entities.
Because for most industries impacts primarily at the 3-digit level. as a percentage of sales or profits, the
statistically meaningful survey data are OSHA believes that this level of analysis financial health of that sub-industry
available largely only at the three-digit adequately captures meaningful would not be in any danger.
North American Industrial variations in economic impacts. Further, BILLING CODE 4510–26–P
Classification System level, OSHA has the costs are so low that even if a sub-
conducted this analysis of economic industry has substantially higher costs
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ER15NO07.031</GPH>
ER15NO07.032</GPH>

ER15NO07.033</GPH>
J. Social Costs and Social Benefits employees pay and 17.5 percent of the OSHA performed an analysis of these
time when employers pay. There is alternate assumptions incorporating the
For the most part, the rule will simply necessarily uncertainty in these estimated value of willingness to pay for
shift the cost of purchasing PPE from estimates. Accordingly, OSHA has injuries avoided, estimated at
employees to employers. However, the performed an analysis of the social costs approximately $50,000 per lost workday
record demonstrates that employer and social benefits of the rule given injury (Viscusi 1993, Viscusi & Aldy
payment will also result in more PPE different sets of assumptions, commonly 2003). As shown in Table XV–11, OSHA
used and improved PPE use at the referred to as a sensitivity analysis, in estimates the net social benefits of the
workplace. This will lead to social costs this case with respect to different rates rule to be $334 million using the main
and social benefits. For purposes of of PPE misuse/nonuse. The Agency benefits estimate, and $185 and $39
estimating the social costs, OSHA found that if the difference in PPE usage million using the alternate 50 percent
assumed, based largely on expert patterns between the employee- and and 10 percent assumptions on the
opinion as discussed above in the employer-pay groups is much smaller ‘‘employer payment effect’’.
benefits analysis, that employees lack than OSHA’s assumption, the social The Agency also examined the effect
the proper PPE an average of 17.5 benefits are still several times larger of doubling the estimated share of PPE
percent of the time when employers than the social costs. employees currently pay for to examine
pay, and 40 percent of the time when the consequences of the survey
employees pay. The social cost If one assumed the gap between the
two groups were only half of what was underestimating the employees’ share of
represents the cost of closing the gap payment. Both the costs of the standard
between the two numbers; the assumed in the benefits estimate based
on direct cost (i.e., assume employees to employers and the social costs would
remainder of the employers’ cost is double—the estimated social costs
merely an economic transfer from the paying for their own PPE were lacking
the proper PPE 28.75 percent of the would increase to $47 million. The
employee to employer. Thus, the social estimated annual benefits of the
costs of requiring employer payment time, and employees who had the PPE
paid for by their employer were lacking standard would increase to 37,188
would represent the following portion injuries and 3.4 fatalities prevented,
of the total cost to employers: 1–((1– it 17.5 percent of the time, meaning a
difference of 11.25 percent, as opposed producing an estimated social value of
0.4)/(1–0.175)), where (1–0.4)/(1–0.175) $609 million, and raising the net social
represents the relative likelihood that to 22.5 percent in main estimate), OSHA
estimates total social costs of $11.7 benefit to $562 million. Therefore, the
employees are actually wearing the Agency concludes that if the survey did
proper PPE. If the relative likelihood million and total social benefits of
$125.3 million, for a net benefit of underestimate the current employee-
were 1 (the numerator and denominator paying share, the net benefits of the
equal), there would be no social cost. $113.6 million. If the ‘‘employer
payment effect’’ were only 10 percent of standard would be larger than OSHA’s
Calculated out, this becomes 1–(0.6/ primary estimate.
0.825), 1–0.727, or 27.3 percent. As the main benefits estimate (i.e., assume
employees paying for their own PPE As discussed previously, these
indicated in Table XV–10 this suggests
were lacking the proper PPE 19.75 sensitivity analyses of the net social
that about $23.4 million out of the total
percent of the time, and employees who benefits are intended to explore the
$85.7 million estimated costs to
had the PPE paid for by their employer implications of the uncertainties
employers are social costs.
were lacking it 17.5 percent of the time), outlined previously in this analysis.
In the case of comparing social costs the social costs would be only $2.3 Nonetheless, under any scenario, the
and social benefits, the magnitude of million; the remainder of the cost to rule will produce a high ratio of benefits
social costs and benefits are closely employers would simply be a transfer. to costs and positive net benefits; the
linked—the benefits of reducing the The estimated benefits would be $27.6 primary uncertainty is the magnitude of
injuries are dependent upon the million, for a net benefit of $25.3 the social costs and benefits.
purchase and use of PPE. To assess the million.30 BILLING CODE 4510–26–P
benefits of the final rule, OSHA
estimated that PPE is misused or not 30 Total social benefits include fatalities fatality avoided, using the willingness to pay
used at all 40 percent of the time when prevented, which are valued at $7 million per approach [Viscusi, 2003, p. 763].
ER15NO07.034</GPH>

noted that occupational injuries impose by employees and their families, loss of
K. Direct Savings Resulting From the an enormous burden on society in esteem, disruption of family life,
Reduction in Injuries Attributable to the addition to the direct outlays of money feelings of anger and helplessness and
for medical expenses, lost wages and other effects. However, many of these
Final Rule
production, and other purely economic considerations go into the monetary
This section evaluates the direct effects. This section of the analysis does calculation of the social benefits of
savings associated with the injuries not attempt to place a monetary value injury reduction used in the social costs
prevented by the final rule. It should be on the pain and suffering experienced and benefits above (see Section J). In
ER15NO07.035</GPH>
addition, there are some purely In this approach, injuries are clearly WCRI does not provide estimates of
economic costs that have not been undervalued, because OSHA assumes average replacement rates as they vary
captured in this analysis, such as legal that the value associated with injuries is significantly by State for a number of
costs to employees and lost output at the same as the value of claims for reasons, including policy differences,
home. workers’ compensation. An analysis of injury rates, employee demographics,
Some aspects of the burden of 1993 workers’ compensation claim data and wage and price variations (NASI,
occupational injuries can be quantified from the Argonaut Insurance Company, 2006). However, based on these data, it
in monetary terms. These aspects of the updated to reflect current dollars using seems reasonable to assume that, on
problem of work-related injuries and a ratio of claims value to total injuries, average, employees receive no more
illnesses can be measured by the losses shows that the weighted average claim than 90 percent of their after-tax income
experienced by employees and by the value of the injuries shown in Table while on temporary disability.
other costs that are externalized to the XV–3 is $3,833. Based on nationwide On the other hand, data show that
rest of society. One consequence of the estimates from the U.S. Social Security permanent partial disability payments
failure of PPE programs to prevent job- Administration, an average of 53 replaced 75 percent of income lost in
related injuries is the growth of percent of these payments are paid out Wisconsin, 58 percent in Florida, and
enormously expensive income for indemnity, and the remaining 47 45 percent in California [Berkowitz and
maintenance programs such as workers’ percent are paid out for medical costs Burton]. OSHA uses the simple average
compensation and long-term disability (NASI, 2006). of these three—59 percent—to estimate
programs. These costs impose a burden the extent of after-tax income
b. Indemnity/Lost Income
on society separate from and in addition replacement for permanent partial
to the human toll in pain and suffering Workers’ compensation indemnity disabilities.31
caused by workplace-related injuries. payments typically take two forms: Based on these data and the NASI
One measure of some of the losses temporary total disability payments, estimates of the distribution of
associated with lost time due to work- which cover absences from work prior payments by type, OSHA estimated
related injuries is the lost output of the to the stabilization of the condition, and after-tax income from the total
employee, measured by the value the permanent disability payments, which indemnities paid for injuries
market places on his or her time. This compensate the employee for the long- preventable by the proposed rule by
value is measured as the employee’s term effects of a stabilized condition. On assuming payments for temporary
total wage plus fringe benefits. Other a nationwide basis, the National disabilities account for 21 percent of all
costs include: (1) Medical expenses, (2) Academy of Social Insurance (NASI) PPE-preventable indemnity payments
costs of workers’ compensation estimates that permanent disability and replace 90 percent of after-tax
insurance administration, and (3) payments account for 79 percent of all income and that payments for
indirect costs to employers (other than indemnity payments. Considering all permanent disabilities account for 79
those for workers’ compensation payments, those cases classified as percent of PPE-preventable indemnity
administration). permanent partial disability account for payments and replace approximately 60
67 percent of the total, while those percent of after-tax income.
a. Lost Output classified as permanent total disability
OSHA estimates the value of lost account for 12 percent of the total. The c. Fringe Benefits
output by starting with workers’ remaining indemnity payments are for In addition to after-tax income loss,
compensation indemnity payments and temporary total disability cases and lost output includes the value of taxes
then adding other losses associated with account for 21 percent of the total that would have been paid by the
work-related injuries. The Agency (NASI, 2006). injured employee and fringe benefits
follows four steps to arrive at a value for The extent to which income is that would have been paid by the
lost output: replaced by each type of indemnity employee’s employer. Total income-
(1) Calculate PPE-related injury in payment (i.e., temporary or permanent) based taxes (individual Social Security
terms of workers’ compensation differs. First, although rules vary by payments, Federal income tax, and State
indemnity payments; State, temporary disability income is income tax) paid were assumed to be 30
(2) Add the difference between the designed in most States to replace two- percent of total income.32 Fringe
value of these indemnity payments and thirds of the employee’s before-tax benefits were estimated as 40.4 percent
the employee’s after-tax income, based income. However, most States place a of before-tax income, based on the
on various studies comparing workers’ maximum and minimum on the amount average fringe benefit data provided by
compensation payments with after-tax of money paid out to the employee, BLS (BLS, 2005).
income. This step estimates the regardless of his/her actual former Tables XV–12 and XV–13 apply the
magnitude of lost after-tax income; income. Studies by the Worker estimation parameters developed above
(3) Add the estimated value of taxes, Compensation Research Institute to calculate the total value of the lost
based on the typical value of taxes as a (WCRI) show that temporary total output associated with temporary and
percentage of after-tax income. This step disability payments replace between 80 permanent disabilities, respectively. As
estimates the value of total income lost; to 100 percent of the after-tax income of shown, the total value of the lost output
and the majority of employees (WCRI, 1993). associated with potentially avoidable
(4) Add the value of fringe benefits, From 3 to 44 percent of the employees approved workers’ compensation claims
based on data on fringe benefits as a receive less than 80 percent of their for temporary total disability is
percentage of total income. This step after-tax income, and from 0 to 16 estimated at $17.3 million, and that
estimates the total market value of the percent receive more than 100 percent associated with permanent disabilities
lost output. of their after-tax income. Unfortunately, (partial and total) at $93.9 million a
31 The use of a simple average rather than a 32 A CBO (CBO, 2004) study estimated the current must be added, so that the number 30% should be
population-weighted average results in a lower effective Federal tax rate, averaged over all income a conservative estimate in most cases.
estimate of income loss and is thus a more levels, at 21.6% (Table 2, p. 18). To this Social
conservative approach. Security taxes and state and local income taxes
year. By preventing injuries that lead to disability, the PPE payment rule will
also prevent this lost output.
ER15NO07.036</GPH>

e. Administrative Costs weighted by the value of the benefit
d. Medical The administrative costs of workers’ payments made by each type of insurer.
compensation insurance include any The aggregate value of the
Most elements of medical costs are funds spent directly on claims administrative costs of workers’
included in the share of payments paid adjustment, as well as all other compensation insurance is estimated to
for medical costs, estimated to be 47 administrative costs incurred by the be 58.1 percent of the value of claims.
percent of the cost of the claims. insurer in conjunction with experienced The total value of claims includes both
However, medical costs do not include losses. the indemnity and medical portions of
any first-aid costs incurred by the OSHA calculates the administrative insurance company payments. As
employer and, in some cases, costs for costs of PPE-related injury claims based indicated in Table XV–14, the Agency
transportation to a medical facility. It on the estimates of benefits and costs to estimates that the revisions to the PPE
should be noted that costs for treating employers for workers’ compensation as standard will save $48.5 million
injuries will remain relatively constant, provided by the National Academy of annually in administrative costs.
regardless of who is actually paying for Social Insurance (NASI, 2006). Table
XV–15 presents administrative costs as It should be noted that cases that fall
the medical care (i.e., the employer outside the workers’ compensation
through workers’ compensation, or a a percent of the value of claims, by type
of insurer. Administrative costs for system will typically have
medical insurer). As presented in Table administrative costs associated with
private carriers, State funds, and self-
XV–14, OSHA estimates the medical them—indeed, to the extent they are
insured companies are estimated to be
costs of injuries preventable by the borne by private medical insurers, they
71.8 percent, 73.5 percent, and 16.2
proposed standard to be $39.2 million a percent, respectively. To estimate the will carry relatively greater
year. aggregate value of the administrative administrative expenses than the
costs of insurance, these costs were average estimated here.
ER15NO07.037</GPH>
TABLE XV–15.—DERIVATION OF AVERAGE ADMINISTRATIVE COSTS AS A PERCENT OF THE VALUE OF CLAIMS, BY TYPE OF
INSURANCE
[$ millions]
Administrative Ratio of
Type of insurance Total cost Benefits administrative
cost costs 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 leave to employees for absences that are OSHA estimates that indirect costs are
shorter than the workers’ compensation 20.8 percent of the value of workers’
The term ‘‘indirect costs’’ describes
waiting period, losses in production compensation medical and indemnity
the costs of work-related injuries that
associated with the injured workers’ payments. As indicated in Table XV–14,
are borne directly by employers but are
departure and return to work, losses in the Agency estimates that the PPE
not included in workers’ compensation
claim costs. Such costs are best the productivity of other employees, payment rule will save $17.4 million
estimated by looking at the costs an and a wide variety of administrative annually in these indirect costs.
employer actually incurs at the time a costs other than those borne directly by Taken in its entirety, this final rule is
the workers’ compensation insurer, e.g.,
workers’ compensation claim is filed. estimated to save $216 million annually

These costs include a number of medical management costs for the by avoiding preventable injuries. See
different social costs, not included injured employee. Based on a study Table XV–14. These cost savings do not
elsewhere in these calculations, such as (Hinze & Applegate) of indirect costs of include the economic value of the loss
ER15NO07.038</GPH>
loss of productivity measured by sick injuries in the construction industry, of leisure time. They do not account for
the burden of chores that are forced on Project. Report A–3, January, 1982 (Docket the Council on Environmental Quality
other household members or hired out. OSHA–S042–2006–0667). (40 CFR Part 1500), and DOL’s NEPA
The direct savings also do not include National Academy of Social Insurance, procedures (29 CFR Part II). As a result
Workers Compensation: Benefits Coverage,
the value of preventing pain and of this review, OSHA has determined
and Costs, 2004 (Washington, DC, 2006)
suffering or loss of life. Business Roundtable. Improving that this action will have no significant
Construction Safety Performance: A impact on the external environment.
L. References
Construction Industry Cost Effectiveness XVII. Federalism
Alpenso, 2007. www.alpenco.com. Project. Report A–3, January, 1982 (Docket
Accessed May 8, 2007 (Docket OSHA–S042– OSHA–S042–2006–0667). OSHA has reviewed this final rule in
2006–0667). Occupational Safety and Health accordance with the Executive Order on
American Association of Railroads, 2006. Administration, Office of Regulatory Federalism (Executive Order 13132, 64
North American Freight Railroad Statistics. Analysis, Background Document to the FR 43255, August 10, 1999), which
November 6 (Docket OSHA–S042–2006– Regulatory Impact and Regulatory Flexibility requires that federal agencies, to the
0667). Assessment for the PPE Standard, 1994, extent possible, refrain from limiting
Berkowitz, M., and Burton, J. Permanent (Docket S060, Ex. 56).
Partial Disability Benefits In Worker
State policy options, consult with States
Office of Technology Assessment,
Compensation. W. E. Upjohn Institute for Preventing Illness and Injury in the prior to taking any actions that would
Employment Research, Kalamazoo, Workplace, Volume 2-Part B: Working restrict State policy options, and take
Michigan, 1987 (Docket S777, Ex. 1605). Papers, 1994 (Docket H049, Ex. 189). such actions only when there is clear
Bureau of Labor Statistics. ‘‘Employer Omark Safety Online, 2007. constitutional authority and the
Costs for Employee Compensation www.omarksafety.com. Accessed May 8, presence of a problem of national scope.
Summary,’’ News Release, December 9, 2005. 2007 Business Roundtable. Improving Executive Order 13132 provides for
Bureau of Labor Statistics, 2004. Job Construction Safety Performance: A preemption of state law only if there is
Openings and Labor Turnover Survey, 2004. Construction Industry Cost Effectiveness a clear congressional intent for the
Bureau of Labor Statistics. ‘‘Workplace Project. Report A–3, January, 1982 (Docket
OSHA–S042–2006–0667).
Agency to do so. Any such preemption
Injuries and Illnesses in 2005,’’ News
Release, October 19, 2006. Ryscavage, Paul. ‘‘Dynamics of Economic is to be limited to the extent possible.
Bureau of Labor Statistics. ‘‘Nonfatal Well-Being: Labor Force, 1991 to 1993’’, U.S. Section 18 of the OSH Act (29 U.S.C.
Occupational Injuries and Illnesses Requiring Census Bureau, Current Population Reports, 651 et seq.) expresses Congress’ intent to
Days Away From Work, 2005,’’ News Household Economic Studies, P70–48, preempt state laws where OSHA has
Release, November 17, 2006. August 1995. promulgated occupational safety and
Bureau of National Affairs. Basic Patterns U.S. Census Bureau, 2004. State and Local health standards. Under the OSH Act, a
in Union Contracts, Fourteenth Edition, BNA Employment and Payroll, March 2004. state can avoid preemption on issues
Books, 1995 (Docket OSHA–S042–2006– U.S. Census Bureau, 2005a. County covered by federal standards only if it
0667). Business Patterns, 2004.
submits, and obtains federal approval
Curtin, R., Presser, S., and Singer, E., U.S. Census Bureau, 2005b. Statistics of
U.S. Businesses 2004. of, a plan for the development of such
‘‘Changes in Telephone Survey Nonresponse
Over the Past Quarter Century’’, Public U.S. Internal Revenue Service, Corporation standards and their enforcement (state
Opinion Quarterly, Vol. 69, No. 1, Spring Source Book, 2004. Accessed online at http:// plan state) (29 U.S.C. 667). Occupational
2005, pp. 87–98 (Docket OSHA–S042–2006– www.irs.gov/taxstats/bustaxstats/article/ safety and health standards developed
0667). 0,,id=149687,00.html, March 2007. by such state plan states must, among
Congressional Budget Office, Effective Tax U.S. Postal Service. 2006. Annual Report, other things, be at least as effective in
Rates Under Current Law, 2001–2004, 2004. 2006. providing safe and healthful
Eastern Research Group, Patterns of PPE U.S. Small Business Administration, 2004.
employment and places of employment
Provision. 1998 (Ex. 1). Table of Small Business Size Standards
Matched to the North American Industry as the federal standards. Subject to these
Eastern Research Group, PPE Cost Survey, requirements, state plan states are free
1999 (Ex. 14). Classification System, Effective July 31, 2004.
Eastern Research Group, Revised Estimates Accessed on-line at <http://www.sba.gov/idc/ to develop and enforce under state law
of PPE Use and Payment Patterns, 2007 groups/public/documents/sba_homepage/ their own requirements for safety and
Business Roundtable. Improving serv_sstd_tablepdf.pdf>, March, 2007. health standards.
Construction Safety Performance: A U.S. Social Security Administration. This final rule complies with
Construction Industry Cost Effectiveness Annual Statistical Supplement to the Social Executive Order 13132. As Congress has
Project. Report A–3, January, 1982 (Docket Security Bulletin. Washington, DC, 2006. expressed a clear intent for OSHA
OSHA–S042–2006–0667). Viscusi, K., ‘‘The Value of Risks to Life and
standards to preempt state job safety
Grainger, 2007. www.grainger.com, Health’’, Journal of Economic Literature, Vol.
31, No. 4. (Dec., 1993), pp. 1912–1946 and health rules in areas addressed by
Accessed May 8, 2007 Business Roundtable. OSHA standards in states without
Improving Construction Safety Performance: (Docket OSHA–S042–2006–0667).
Viscusi, K. and Aldy, J. ‘‘The Value of a OSHA-approved state plans, this rule
A Construction Industry Cost Effectiveness
Project. Report A–3, January, 1982 (Docket Statistical Life: A Critical Review of Market limits state policy options in the same
Estimates Throughout the World’’, The manner as all OSHA standards. In states
OSHA–S042–2006–0667).
Journal of Risk and Uncertainty, 2003, with OSHA-approved state plans, this
Hinze, J. and Applegate, L.L. ‘‘Costs of
27:1:5–76, 2003 (Docket OSHA–S042–2006– action does not significantly limit state
Construction Injuries’’, Journal of
0667).
Construction Engineering and Management, policy options.
Worker Compensation Research Institute.
117(3):537–550, 1991 (Docket S777, Ex. 26–
Income Replacement in California. XVIII. Unfunded Mandates
1589).
December, 1993 (Docket S777, Ex. 26–1586).
Klein, R.W., Nordman, E.C., and Fritz, J.L. This final rule has been reviewed in
Working Person’s Store, 2007.
Market Conditions in Workers’ Compensation accordance with the Unfunded
www.workingperson.com, Accessed May 8,
Insurance. Interim Report Presented to the Mandates Reform Act of 1995 (UMRA)
2007 (Docket OSHA–S042–2006–0667).
NAIC Workers’ Compensation Task Force, (2 U.S.C. 1501 et seq.) and Executive
July 9, 1993 (Docket S777, Ex. 26–1586). XVI. Environmental Impacts
Lab Safety Supply, http://

Order 12875. As discussed in the Final
www.labsafety.com. Accessed May 1, 2007 OSHA has reviewed this rule in Economic Analysis, OSHA estimates
Business Roundtable. Improving accordance with the National that compliance with the rule will
Construction Safety Performance: A Environmental Policy Act (NEPA), (42 require expenditures of $85.7 million
Construction Industry Cost Effectiveness U.S.C. 4321 et seq.), the regulations of per year by affected employers.
Therefore, this rule is not a significant employer for failure to have such While this final rule does not change
regulatory action within the meaning of paperwork. The Agency understands the types of PPE that are required, it
Section 202 of UMRA (Pub. L. 104–4, 2 that businesses commonly keep receipts imposes additional or more stringent
U.S.C. 1532). OSHA standards do not to comply with standard accounting PPE payment requirements on
apply to State and local governments codes, for tax accounting purposes, and employers than existing OSHA
except in States that have voluntarily as a standard good business practice. standards. Therefore, the states will be
elected to adopt an OSHA State plan. However, an employer is not required to required to revise their standards within
Consequently, the rule does not meet do so by this final rule. six months of this Federal Register
the definition of a ‘‘Federal In response to the comment from notice or show OSHA why their existing
intergovernmental mandate’’ (Section NAHB, in most instances, an OSHA standard is already ‘‘at least as
421(5) of UMRA) (2 U.S.C. 658). inspector will interview employers and effective’’ as the new federal standard.
In addition, the Agency has employees to determine if an employer Thirteen states require payment for most
concluded that virtually all State Plan is complying with the PPE payment PPE through regulation or policy. In
States, the only States in which this rule rule. OSHA does not believe it will be addition, three states (California,
could have any effect on State and local difficult to ascertain whether an Minnesota, and Puerto Rico) currently
government employers, already require employer paid for a particular piece of require payment for all PPE. (In these
that employers pay for all types of PPE PPE and employers will not need to states, the employer may be required to
that will be covered by this rule. Thus, justify their purchases with receipts. pay for the minimal PPE needed to do
this rule will not have a significant After publishing the final rule, OSHA the job, but can require the employee to
impact on employers who are State and will instruct its inspectors in the pay for equipment upgraded at the
local governments. In sum, this rule requirements of the final rule and that employee’s request.)
does not impose unfunded mandates the final rule does not require OSHA received very few comments
within the meaning of UMRA. employers to keep a record of receipts concerning implementation of the final
rule in the state plan states. The State
XIX. OMB Review Under the or otherwise document determinations
of Minnesota noted that it has required
Paperwork Reduction Act of 1995 made.
PPE payment by employers since 1973,
The final PPE payment rule simply XX. State Plan Standards without any exceptions, under
clarifies that employers must pay for Minnesota Statute § 182, subd. 10(a).
PPE used to comply with OSHA When federal OSHA promulgates a Minnesota advocated federal adoption
standards, with a few limited new standard or more stringent of the State’s policy of requiring the
exceptions. As such, the rule does not amendment to an existing standard, the employer to pay at least the minimum
contain collection-of-information 26 states or U.S. territories with their cost of all PPE needed for the job,
(paperwork) requirements that are own OSHA-approved occupational including items of a personal nature that
subject to review by the Office of safety and health plans must revise their can be used off the job, e.g., safety-toe
Management and Budget (OMB) under standards to reflect the new standard or footwear and prescription safety
the Paperwork Reduction Act of 1995 amendment, or show OSHA why there eyewear, without exception. The State
(PRA–95), 44 U.S.C. 3501 et seq., and is no need for action, e.g., because an expressed concern that employers in
OMB’s regulations at 5 CFR part 1320. existing state standard covering this area Minnesota would be confused if OSHA
PRA–95 defines ‘‘collection of is already ‘‘at least as effective’’ as the adopted a requirement different from
information’’ as ‘‘[t]he obtaining, new federal standard or amendment (29 the State’s (Ex. 12: 20). It is the
causing to be obtained, soliciting, or CFR 1953.5(a)). The state standard must employer’s responsibility to know and
requiring the disclosure to third parties be at least as effective as the final comply with the applicable
or the public of facts or opinions by or federal rule, must be applicable to both occupational safety and health
for an agency regardless of form or the private and public (state and local requirements, whether they are federal
format * * *.’’ (44 U.S.C. 3502(3)(A)). government employees) sectors, and or OSHA-approved state plan
A number of commenters questioned must be completed within six months of requirements. States that choose to
whether they would be required to keep the publication date of the final federal operate state programs are free to adopt
receipts to prove PPE purchases and, rule. When OSHA promulgates a new more stringent standards but in doing so
thus, whether the final rule contains standard or amendment that does not have a responsibility to communicate
paperwork requirements (See, e.g., Exs. impose additional or more stringent those requirements to employers in their
12: 22, 31, 36, 44, 54, 56, 68, 72, 73, 78, requirements than an existing standard, state. A state plan state may always
80, 95, 102, 115, 118, 127, 128, 136, 140, states are not required to revise their adopt standards identical to the federal
157, 158, 165, 166, 176, 186, 194, 197, standards, although the Agency may if they wish to avoid such differences.
202, 208, 212, 219, 224, 226, 232, 238, encourage them to do so. These 26 states While each state plan is ultimately
241). In a representative comment, the and territories are: Alaska, Arizona, responsible for communicating its state-
NAHB asked: California, Connecticut (plan covers specific standards and policies to the
only State and local government employers and employees within the
How will OSHA enforce this standard? employees), Hawaii, Indiana, Iowa,
When a compliance officer comes on to the state, federal OSHA will continue to
jobsite and sees every employee wearing a
Kentucky, Maryland, Michigan, work with the state plans to make
hard hat and safety glasses, will he request Minnesota, Nevada, New Mexico, New information about state-specific policies
to see a receipt from the employer for the Jersey (plan covers only State and local and regulations that differ from the
purchase of the PPE? Will the employer then government employees), New York federal, including PPE payment
be cited if he does not have a receipt to prove (plan covers only State and local requirements, publicly available to
that he did, in fact, pay for the PPE being government employees), North Carolina, employers and employees through Web
used? (Ex. 12: 212).
Oregon, Puerto Rico, South Carolina, postings and other outreach activities.
The final standard does not require Tennessee, Utah, Vermont, Virginia,
employers to maintain receipts or any Virgin Islands (plan covers only XXI. Authority and Signature
other form of paperwork involving PPE Territorial and local government This document was prepared under
payment, and OSHA will not cite an employees), Washington, and Wyoming. the direction of Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for of Title 29 of the Code of Federal equipment. The employer shall not
Occupational Safety and Health, 200 Regulations as follows: require an employee to provide or pay
Constitution Avenue, NW., Washington, for his or her own PPE, unless the PPE
XXII. Final Rule
DC 20210. This action is taken pursuant is excepted by paragraphs (h)(2) through
to sections 4, 6, and 8 of the General Industry (h)(5) of this section.
Occupational Safety and Health Act of (7) This paragraph (h) shall become
1970 (29 U.S.C. 653, 655, 657), the PART 1910—[AMENDED] effective on February 13, 2008.
Longshore and Harbor Workers’ ■ 1. The authority citation for subpart I Employers must implement the PPE
Compensation Act (33 U.S.C. 941), the of 29 CFR part 1910 is revised to read payment requirements no later than
Contract Work Hours and Safety as follows: May 15, 2008.
Standards Act (Construction Safety Act)
Authority: Sections 4, 6, and 8 of the Note to § 1910.132(h): When the provisions
(40 U.S.C. 333), and Secretary of Labor’s of another OSHA standard specify whether or
Occupational Safety and Health Act of 1970
Order No. 5–2007 (72 FR 31160), and 29 (29 U.S.C. 653, 655, and 657); Secretary of not the employer must pay for specific
CFR part 1911. Labor’s Order No. 12–71 (36 FR 8754), 8–76 equipment, the payment provisions of that
(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 standard shall prevail.
List of Subjects
FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR
29 CFR Part 1910 50017), 5–2002 (67 FR 65008), or 5–2007 (72 PART 1915—[AMENDED]
FR 31160), as applicable, and 29 CFR Part
Chemicals, Electric power, Fire 1911.
prevention, Gases, Hazardous ■ 1. The authority citation for 29 CFR
substances, Health facilities, Health ■ 2. A new paragraph (h) is added to part 1915 is revised to read as follows:
professions, Laboratories, Logging, § 1910.132, to read as follows: Authority: Section 41, Longshore and
Occupational safety and health, Harbor Workers’ Compensation Act (33
§ 1910.132 General requirements.
Protective equipment, Radiation U.S.C. 941); Sections. 4, 6, and 8 of the
* * * * * Occupational Safety and Health Act of 1970
protection. (h) Payment for protective equipment. (29 U.S.C. 653, 655, 657); Secretary of Labor’s
29 CFR Part 1915 (1) Except as provided by paragraphs Order No. 12–71 (36 FR 8754), 8–76 (41 FR
(h)(2) through (h)(6) of this section, the 25059), 9–83 (48 FR 35736), 1–90 (55 FR
Chemicals, Electric power, Fire protective equipment, including 9033), 6–96 (62 FR 111), 3–2000 (65 FR
prevention, Gases, Hazardous personal protective equipment (PPE), 50017), 5–2002 (67 FR 65008), or 5–2007 (72
substances, Health facilities, Health used to comply with this part, shall be
FR 31160) as applicable; 29 CFR Part 1911.
professions, Laboratories, Longshore provided by the employer at no cost to ■ 2. A new paragraph (f) is added to
and harbor workers, Occupational safety employees. § 1915.152, to read as follows:
and health, Protective equipment, (2) The employer is not required to
Radiation protection. § 1915.152 General requirements.
pay for non-specialty safety-toe
* * * * *
29 CFR Part 1917 protective footwear (including steel-toe (f) Payment for protective equipment.
Chemicals, Electric power, Fire shoes or steel-toe boots) and non- (1) Except as provided by paragraphs
prevention, Gases, Hazardous specialty prescription safety eyewear, (f)(2) through (f)(6) of this section, the
substances, Health facilities, Health provided that the employer permits protective equipment, including
professions, Laboratories, Longshore such items to be worn off the job-site. personal protective equipment (PPE),
(3) When the employer provides used to comply with this part, shall be
and harbor workers, Occupational safety
metatarsal guards and allows the provided by the employer at no cost to
and health, Protective equipment,
employee, at his or her request, to use employees.
Radiation protection.
shoes or boots with built-in metatarsal (2) The employer is not required to
29 CFR Part 1918 protection, the employer is not required pay for non-specialty safety-toe
Chemicals, Electric power, Fire to reimburse the employee for the shoes protective footwear (including steel-toe
prevention, Gases, Hazardous or boots. shoes or steel-toe boots) and non-
substances, Health facilities, Health (4) The employer is not required to specialty prescription safety eyewear,
professions, Laboratories, Longshore pay for: provided that the employer permits
and harbor workers, Occupational safety (i) The logging boots required by 29 such items to be worn off the job-site.
and health, Protective equipment, CFR 1910.266(d)(1)(v); (3) When the employer provides
(ii) Everyday clothing, such as long- metatarsal guards and allows the
Radiation protection.
sleeve shirts, long pants, street shoes, employee, at his or her request, to use
29 CFR Part 1926 and normal work boots; or shoes or boots with built-in metatarsal
Chemicals, Construction industry, (iii) Ordinary clothing, skin creams, or protection, the employer is not required
Electric power, Fire prevention, Gases, other items, used solely for protection to reimburse the employee for the shoes
Hazardous substances, Health facilities, from weather, such as winter coats, or boots.
Health professions, Laboratories, jackets, gloves, parkas, rubber boots, (4) The employer is not required to
Occupational safety and health, hats, raincoats, ordinary sunglasses, and pay for:
Protective equipment, Radiation sunscreen. (i) Everyday clothing, such as long-
protection. (5) The employer must pay for sleeve shirts, long pants, street shoes,
replacement PPE, except when the and normal work boots; or
Signed at Washington, DC this 2nd day of employee has lost or intentionally (ii) Ordinary clothing, skin creams, or
November, 2007. damaged the PPE. other items, used solely for protection
Edwin G. Foulke, Jr., (6) Where an employee provides from weather, such as winter coats,
Assistant Secretary of Labor for Occupational adequate protective equipment he or she jackets, gloves, parkas, rubber boots,
Safety and Health. owns pursuant to paragraph (b) of this hats, raincoats, ordinary sunglasses, and
■ Accordingly, the Occupational Safety section, the employer may allow the sunscreen.
and Health Administration amends employee to use it and is not required (5) The employer must pay for
parts 1910, 1915, 1917, 1918, and 1926 to reimburse the employee for that replacement PPE, except when the
employee has lost or intentionally (2) Ordinary clothing, skin creams, or protection, the employer is not required
damaged the PPE. other items, used solely for protection to reimburse the employee for the shoes
(6) Where an employee provides from weather, such as winter coats, or boots.
appropriate protective equipment he or jackets, gloves, parkas, rubber boots, (d) The employer is not required to
she owns, the employer may allow the hats, raincoats, ordinary sunglasses, and pay for:
employee to use it and is not required sunscreen. (1) Everyday clothing, such as long-
to reimburse the employee for that (e) The employer must pay for sleeve shirts, long pants, street shoes,
equipment. The employer shall not replacement PPE, except when the and normal work boots; or
require an employee to provide or pay employee has lost or intentionally (2) Ordinary clothing, skin creams, or
for his or her own PPE, unless the PPE damaged the PPE. other items, used solely for protection
is excepted by paragraphs (f)(2) through (f) Where an employee provides from weather, such as winter coats,
(f)(5) of this section. adequate protective equipment he or she jackets, gloves, parkas, rubber boots,
(7) This paragraph (f) shall become owns, the employer may allow the hats, raincoats, ordinary sunglasses, and
effective on February 13, 2008. employee to use it and is not required sunscreen.
Employers must implement the PPE to reimburse the employee for that (e) The employer must pay for
payment requirements no later than equipment. The employer shall not replacement PPE, except when the
May 15, 2008. require an employee to provide or pay employee has lost or intentionally
for his or her own PPE, unless the PPE damaged the PPE.
Note to § 1915.152(f): When the provisions is excepted by paragraphs (b) through
of another OSHA standard specify whether or (f) Where an employee provides
(e) of this section. adequate protective equipment he or she
not the employer must pay for specific
equipment, the payment provisions of that
(g) This section shall become effective owns, the employer may allow the
standard shall prevail. on February 13, 2008. Employers must employee to use it and is not required
implement the PPE payment to reimburse the employee for that
Longshoring requirements no later than May 15, equipment. The employer shall not
2008. require an employee to provide or pay
PART 1917—[AMENDED] Note to § 1917.96: When the provisions of for his or her own PPE, unless the PPE
another OSHA standard specify whether or is excepted by paragraphs (b) through
■ 1. The authority citation for 29 CFR not the employer must pay for specific
part 1917 is revised to read as follows: (e).
equipment, the payment provisions of that
standard shall prevail.
(g) This section shall become effective
Authority: Section 41, Longshore and
Harbor Workers’ Compensation Act (33 on February 13, 2008. Employers must
U.S.C. 941); Sections 4, 6, and 8 of the Marine Terminals implement the PPE payment
Occupational Safety and Health Act of 1970 requirements no later than May 15,
(29 U.S.C. 653, 655, 657); Secretary of Labor’s PART 1918—[AMENDED] 2008.
Order No. 12–71 (36 FR 8754), 8–76 (41 FR
25059), 9–83 (48 FR 35736), 1–90 (55 FR ■ 1. The authority citation for 29 CFR Note to § 1918.106: When the provisions of
9033), 6–96 (62 FR 111), 3–2000 (65 FR another OSHA standard specify whether or
part 1918 is revised to read as follows: not the employer must pay for specific
50017), 5–2002 (67 FR 65008), or 5–2007 (72
FR 31160) as applicable; 29 CFR Part 1911. Authority: Section 41, Longshore and equipment, the payment provisions of that
Harbor Workers’ Compensation Act (33 standard shall prevail.
■ 2. A new § 1917.96 is added, to read U.S.C. 941); Sections. 4, 6, and 8 of the
as follows: Occupational Safety and Health Act of 1970 Construction
(29 U.S.C. 653, 655, 657); Secretary of Labor’s
§ 1917.96 Payment for protective
Order No. 12–71 (36 FR 8754), 8–76 (41 FR PART 1926—[AMENDED]
equipment.
25059), 9–83 (48 FR 35736), 1–90 (55 FR
(a) Except as provided by paragraphs 9033), 6–96 (62 FR 111), 3–2000 (65 FR ■ 1. The authority citation for subpart E
(b) through (f) of this section, the 50017), 5–2002 (67 FR 65008), or 5–2007 (72 of 29 CFR part 1926 is revised to read
protective equipment, including FR 31160) as applicable; 29 CFR Part 1911. as follows:
personal protective equipment (PPE), ■ 2. A new § 1918.106 is added, to read
used to comply with this part, shall be Authority: Section. 107, Contract Work
as follows: Hours and Safety Standards Act
provided by the employer at no cost to
§ 1918.106 Payment for protective (Construction Safety Act) (40 U.S.C. 333);
employees. Sections. 4, 6, and 8 of the Occupational
(b) The employer is not required to equipment.
Safety and Health Act of 1970 (29 U.S.C. 653,
pay for non-specialty safety-toe (a) Except as provided by paragraphs 655, 657); Secretary of Labor’s Order No. 12–
protective footwear (including steel-toe (b) through (f) of this section, the 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83
shoes or steel-toe boots) and non- protective equipment, including (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62
specialty prescription safety eyewear, personal protective equipment (PPE), FR 111), 5–2002 (67 FR 65008), or 5–2007 (72
provided that the employer permits used to comply with this part, shall be FR 31160) as applicable; and 29 CFR Part
such items to be worn off the job-site. provided by the employer at no cost to 1911.
(c) When the employer provides employees. ■ 2. A new paragraph (d) is added to
metatarsal guards and allows the (b) The employer is not required to § 1926.95, to read as follows:
employee, at his or her request, to use pay for non-specialty safety-toe
shoes or boots with built-in metatarsal protective footwear (including steel-toe § 1926.95 Criteria for personal protective
protection, the employer is not required shoes or steel-toe boots) and non- equipment.
to reimburse the employee for the shoes specialty prescription safety eyewear, * * * * *
or boots. provided that the employer permits (d) Payment for protective equipment.
(d) The employer is not required to such items to be worn off the job-site. (1) Except as provided by paragraphs
pay for: (c) When the employer provides (d)(2) through (d)(6) of this section, the
(1) Everyday clothing, such as long- metatarsal guards and allows the protective equipment, including
sleeve shirts, long pants, street shoes, employee, at his or her request, to use personal protective equipment (PPE),
and normal work boots; or shoes or boots with built-in metatarsal used to comply with this part, shall be
provided by the employer at no cost to (i) Everyday clothing, such as long- to reimburse the employee for that
employees. sleeve shirts, long pants, street shoes, equipment. The employer shall not
(2) The employer is not required to and normal work boots; or require an employee to provide or pay
pay for non-specialty safety-toe (ii) Ordinary clothing, skin creams, or for his or her own PPE, unless the PPE
protective footwear (including steel-toe other items, used solely for protection is excepted by paragraphs (d)(2) through
shoes or steel-toe boots) and non- from weather, such as winter coats, (d)(5) of this section.
specialty prescription safety eyewear, jackets, gloves, parkas, rubber boots, (7) This section shall become effective
provided that the employer permits hats, raincoats, ordinary sunglasses, and on February 13, 2008. Employers must
such items to be worn off the job-site. sunscreen. implement the PPE payment
(3) When the employer provides (5) The employer must pay for requirements no later than May 15,
metatarsal guards and allows the replacement PPE, except when the 2008.
employee, at his or her request, to use employee has lost or intentionally Note to § 1926.95(d): When the provisions
shoes or boots with built-in metatarsal damaged the PPE. of another OSHA standard specify whether or
protection, the employer is not required (6) Where an employee provides not the employer must pay for specific
to reimburse the employee for the shoes equipment, the payment provisions of that
adequate protective equipment he or she standard shall prevail.
or boots. owns pursuant to paragraph (b) of this
(4) The employer is not required to section, the employer may allow the [FR Doc. 07–5608 Filed 11–14–07; 8:45 am]
pay for: employee to use it and is not required BILLING CODE 4510–26–P

Rule: Occupational Safety and Health Standards: Personal Protective Equipment Employer Payment

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Thursday,

November 15, 2007

29 CFR Parts 1910, 1915, 1917 et al.

DEPARTMENT OF LABOR Table of Contents standards require employers to provide

Occupational Safety and Health effectiveness of safety and health

the exemption for non-specialty provides the protection of an ordinary

employees to protect against hazards example, a representative from the

management or disciplinary issue, not a management. The disciplinary system for

inspections of open excavations by a payment is required under § 1910.132(h)

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE

29 CFR 1910, General Industry

1910.28 ................ Safety requirements for scaffolds.

29 CFR 1915, Shipyards

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued

29 CFR 1917, Marine Terminals

1917.22 ................ Hazardous cargo.

29 CFR 1918, Safety and Health Regulations for Longshoring

1918.85 ................ Containerized cargo operations.

29 CFR 1926, Safety and Health Regulations for Construction

1926.28 ................ Personal protective equipment.

1926.300 .............. General requirements (Hand and power tools).

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued

In 1998, OSHA sponsored an expert the attendees on an individual basis and

benefits of employer-purchased PPE, usage patterns and the extent to which

The UAW believes that the employer’s

conservation preamble)). Recently, the worksite. In past rulemakings, this

BILLING CODE 4510–26–C

BILLING CODE 4510–26–C

States where employer-payment

percent of time PPE is not worn when employers pay

extrapolated across the economy as a Additional fatalities that would not be

27–28 As indicated in Table XV–3, Census Bureau

[Census, 2005a] data indicate non State-Plan States

BILLING CODE 4510–26–C

recognizes that such results are

there will be situations where costs are

BILLING CODE 4510–26–C

amount to 1 percent of revenues, then Administration (SBA) in its ‘‘Table of

BILLING CODE 4510–26–C

BILLING CODE 4510–26–C

BILLING CODE 4510–26–C

Private ......................................................................................... $48,695 $28,346 $20,349 71.8 percent.

workers’ compensation claim is filed. estimated to save $216 million annually

Lab Safety Supply, http://

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