[Federal Register Volume 69, Number 130 (Thursday, July 8, 2004)]
[Proposed Rules]
[Pages 41221-41225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15525]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, 1918 and 1926

[Docket S-042]
RIN 1218-AB77


Employer Payment for Personal Protective Equipment

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

ACTION: Notice of limited reopening of rulemaking record.

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SUMMARY: On March 31, 1999, OSHA issued a proposed rule to require 
employers to pay for all personal protective equipment (with a few 
specific exceptions) used by their employees. Public comments were 
received, hearings were held, and the record was closed on December 13, 
1999.
    OSHA has been evaluating the rulemaking record and is in the 
process of reaching a final determination on the proposal. While 
analyzing the issues raised in the original proposal and the evidence 
in the record relating to these issues, OSHA has determined that one 
issue needs further public comment. Specifically, the issue relates to 
whether or how a general requirement for employer payment for personal 
protective equipment (PPE), should address types of PPE that are 
typically supplied by the employee, taken from job site to job site or 
from employer to employer, and considered to be ``tools of the trade.''
    In light of the significant comments in the record, OSHA believes 
that further information is necessary to fully explore the issues 
concerning a possible limited exception for paying for PPE that is 
considered to be a ``tool of the trade''. In particular, OSHA is 
seeking comments that could potentially lead to agreed-upon criteria 
establishing what constitutes a ``tool of the trade'' for purposes of 
employer payment. As discussed earlier, moving from job-to-job may be 
one consideration, as may be the personal nature of certain PPE. This 
notice therefore reopens the record for a limited period of time for 
further public comment on this issue. The notice discusses the evidence 
currently in the record on this issue and presents a series of 
questions to assist the public in providing further information that 
would be helpful to OSHA.

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

ADDRESSES: You may submit comments, identified by Docket S-042, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     OSHA Web site: http://dockets.osha.gov. Follow the 
instructions for submitting comments. Information such as studies and 
journal articles cannot be attached to electronic submissions and must 
be submitted in duplicate to the address listed below. Such attachments 
must clearly identify the respondent's electronic submission by name, 
date, and subject, so that they can be attached to the correct 
submission.

[[Page 41222]]

     Fax: 202-693-1648. Comments must be limited to 10 pages or 
fewer and the original and one copy of the comment must be sent to the 
Docket Office immediately thereafter at the address below.
     Mail: Send two copies of your comments to Docket Office, 
Room N2625, Occupational Safety and Health Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210.
     Hand Delivery/Courier: Deliver two copies of your comments 
to Docket Office, Room N2625, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210. Please contact the OSHA Docket Office at (202) 
693-2350 for information about security procedures concerning the 
delivery of materials by express delivery, hand delivery, and messenger 
service. The hours of operation for the OSHA Docket Office and 
Department of Labor are 8:15 a.m. to 4:45 p.m., e.s.t.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
http://dockets.osha.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dockets.osha.gov, or the Docket Office, 
Room N2625, Occupational Safety and Health Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, telephone 202-693-2350.

FOR FURTHER INFORMATION CONTACT: George Shaw, Acting Director, Office 
of Communications, Occupational Safety and Health Administration, Room 
N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, Telephone (202) 693-1999, FAX (202) 693-1635.

SUPPLEMENTARY INFORMATION: Many Occupational Safety and Health 
Administration (OSHA) health, safety, maritime, and construction 
standards require employers to provide their employees with protective 
equipment, including personal protective equipment (PPE), when such 
equipment is necessary to protect employees from job-related injuries, 
illnesses, and fatalities. These requirements are codified in Part 1910 
(General Industry standards), Part 1915 (Shipyard standards), Part 1917 
(Marine Terminal standards), Part 1918 (Longshoring standards), and 
Part 1926 (Construction standards), of Title 29 of the Code of Federal 
Regulations. These requirements address PPE of many kinds, including 
hard hats, gloves, goggles, safety shoes, safety glasses, welding 
helmets and goggles, faceshields, chemical protective equipment and 
clothing, fall protection equipment, and so forth.
    The provisions in OSHA standards that require PPE usually state 
that the employer is to provide or ensure the use of such PPE. Some of 
these provisions specify that the employer is to provide such PPE at no 
cost to the employee, some suggest that the PPE is owned by the 
employee, while other provisions are silent as to who is obligated to 
pay for this equipment.
    On March 31, 1999, OSHA issued a proposed rule to require employers 
to pay for all personal protective equipment (with a few specific 
exceptions) used by their employees (64 FR 15401). Public comments were 
received, hearings were held, and the record was closed on December 13, 
1999.
    OSHA's proposal reviewed the background of the question of who 
should pay for personal protective equipment under OSHA standards. A 
brief summary of this background follows.
    Employees often need to wear protective equipment, including 
personal protective equipment (PPE), to be protected from injury, 
illness, and death caused by exposure to workplace hazards. PPE 
includes many different types of protective equipment that an employee 
uses or wears, such as fall arrest systems, safety shoes, and 
protective gloves. In addition to the great variety of protective 
equipment, there are many situations in which PPE is necessary to 
protect employees from hazards. For example, protective gloves can 
protect hands from lacerations, burns, absorption of toxic chemicals, 
and abrasion. Safety shoes protect an employee's feet from being 
crushed by falling objects. Respirators can protect employees from 
being over-exposed to toxic substances.
    Many OSHA standards require employers to provide PPE to their 
employees or to ensure the use of PPE. Some standards indicate in broad 
performance terms when PPE is to be used, and what is to be used (see, 
for example, 29 CFR 1910.132). Other provisions are very specific, such 
as 29 CFR 1910.266(d)(1)(iv), which requires that chain saw operators 
be provided with protective leggings during specific operations, and 29 
CFR 1910.1027(g), which requires respiratory protection for workers 
exposed to cadmium above the permissible exposure limit.
    Some OSHA PPE standards specifically require the employer to pay 
for PPE. However, most are silent with regard to whether the employer 
is obligated to pay. OSHA's health standards issued after 1977 have 
made it clear both in the regulatory text and in the preamble that the 
employer is responsible for providing necessary PPE at no cost to the 
employee. See, for example, OSHA's inorganic arsenic standard issued in 
1978 at 29 CFR 1910.1018(h)(2) (i) and (j), and the respiratory 
protection standard, issued January 8, 1998 (29 CFR 1910.134). In 
addition, the regulatory text and preamble discussion for some safety 
standards have also been clear that the employer must both provide and 
pay for PPE. See, for example, the logging standard at 29 CFR 
1910.266(d)(1)(iii) and (iv).
    On the other hand, certain PPE provisions quite clearly do not 
require the employer to pay for the protective equipment. Thus, the 
same logging standard that requires the employer to pay for many types 
of PPE makes an exception for certain types of logging boots (see 29 
CFR 1910.266(d)(1)(v)). In the case of foot protection, such as logging 
boots, paragraph (d)(1)(v) of that standard leaves the issue of who 
pays for some kinds of logging boots open for negotiation and agreement 
between the employer and employee.
    For most PPE provisions in OSHA's standards, however, the 
regulatory text does not explicitly address the issue of payment for 
personal protective equipment. For example, 29 CFR 1910.132(a) is the 
general provision requiring employers to provide PPE when necessary to 
protect employees. This provision states that the PPE must be provided, 
used, and maintained in a sanitary and reliable condition. It does not 
state that the employer must pay for it or that it must be provided at 
no cost to employees.
    The question of who pays for OSHA required PPE has been subject to 
varying interpretation and application by employers, OSHA, the Review 
Commission and the Courts.
    OSHA attempted to establish a policy and clarify the issue of 
payment for required PPE in a memorandum to its field staff dated 
October 18, 1994, ``Employer Obligation to Pay for Personal Protective 
Equipment.'' OSHA stated that for all PPE standards the employer must 
both provide, and pay for, the required PPE, except in limited 
situations. The memorandum indicated that where PPE is very personal in 
nature and usable by the worker off the job, such as is often the case 
with steel-toe safety shoes (but not metatarsal foot

[[Page 41223]]

protection), the issue of payment may be left to labor-management 
negotiations. This memorandum was intended to clarify the Agency's 
policy with regard to payment for required PPE.
    However, the Occupational Safety and Health Review Commission 
declined to accept the interpretation embodied in the 1994 memorandum 
as it applied to Sec. 1910.132(a), OSHA's general PPE standard for 
general industry, in Secretary of Labor v. Union Tank Car Co., 18 
O.S.H.Cas. (BNA) 1067 (Rev. Comm'n. 1997). In that case, an employer 
was issued a citation for failing to pay for metatarsal foot protection 
and welding gloves. The Commission vacated the citation, finding that 
the Secretary had failed to adequately explain the policy outlined in 
the 1994 memorandum in light of several earlier letters of 
interpretation from OSHA that were inconsistent with that policy.
    To respond to the Commission's Union Tank Car decision and to 
clarify when employers are obligated to pay for PPE, OSHA issued the 
current proposal. The proposed rule would establish a uniform 
requirement that employers pay for all types of PPE required under OSHA 
standards, except for safety shoes, prescription safety eyewear and 
logging boots. The proposal cited two main justifications for requiring 
employers to pay for PPE. First, OSHA preliminarily concluded that the 
OSH Act implicitly requires employers to pay for PPE that is necessary 
for employees to perform their jobs safely. The agency believed that 
this interpretation was supported by the statute's intent to make 
employers solely responsible for compliance with standards, and by the 
undisputed principle that employers must pay for engineering and work 
practice controls necessary to achieve safe working conditions. OSHA 
tentatively concluded that PPE serves the same purpose as engineering 
controls in abating hazards, and should be paid for by employers just 
as engineering controls are.
    OSHA also preliminarily concluded that the proposed rule would 
enhance compliance with existing PPE requirements in several practical 
ways, thereby significantly reducing the risk of non-use or misuse of 
PPE. On this basis, OSHA tentatively concluded that the proposed rule 
was justified as an ancillary requirement of existing PPE standards.
    In summary, the proposal provided for employer payment for personal 
protective equipment, with certain specific exceptions for safety-toe 
protective footwear, prescription safety eyewear and logging boots 
required by 29 CFR 1910.266(d)(1)(v). The proposal also raised several 
issues on which public comments, views and data were particularly 
solicited. Among the issues raised were whether there are additional 
types of PPE which should be excepted from the proposed requirement for 
employer payment; and whether certain unique circumstances in some 
industries, such as high employee turnover, frequent employee movement 
from job site to job site or employer to employer, or other conditions 
warranted different treatment in the standard.
    OSHA has reviewed the evidence in the record in the process of 
reaching a final determination on the proposal. OSHA believes that the 
record presents one particular issue that needs additional public 
comment to help OSHA conclude the proceeding. This issue pertains to 
types of personal protective equipment that have been referred to in 
the record as ``tools of the trade,'' and how any general requirement 
for employer payment for PPE should address such types of PPE.
    In brief, the record suggests that just as some employees are 
expected to bring their own tools to the job for certain job tasks, and 
to pay for their own tools, so too are they expected to bring certain 
items of protective gear as part of their ``toolbox.'' This practice of 
employees bringing their own protective equipment as part of their 
toolbox reflects longstanding practices in some industries, the 
uniquely personal nature of this equipment, the economic realities of 
certain industries where employees move frequently from job site to job 
site and from employer to employer, and the implicit recognition that 
the employee may be in a better position to acquire and maintain the 
proper protective equipment.
    In the preamble to the proposed rule, OSHA described using a 
similar rationale to exempt logging boots from employer payment 
requirements in the logging standard (64 FR 15413). Briefly, OSHA 
believed it appropriate for employees to furnish their own boots since 
employees typically took them in moving from one logging establishment 
to another, because it was established custom in the logging industry 
for employees to pay for their own boots, and because each pair of 
boots were sized for only one employee. OSHA believes that these 
characteristics might also apply to other types of PPE considered by 
many in the record to be ``tools of the trade'' in certain industries.
    Accordingly, OSHA is inviting comment on whether and how PPE 
regarded as tools of the trade should be included in any requirement 
for employer payment for PPE. If the rule contains a specific provision 
about ``tools of the trade'', how should such ``tools of the trade'' be 
defined? OSHA is interested in obtaining an understanding of the 
circumstances or settings in which PPE is considered a tool of the 
trade that employees customarily supply themselves and carry with them 
from job to job. What are the reasons for treating PPE as ``tools of 
the trade'' in these circumstances? What interests do these practices 
serve? Should these reasons be considered in determining employers' 
obligations under the Occupational Safety and Health Act?
    As the following discussion shows, the record at present contains 
differing views and incomplete information on what kinds of PPE should 
be considered to be ``tools of the trade'', on how payment practices 
vary within industry sectors, and on the reasons for these practices. 
For example, some testimony in the record indicates that PPE used by 
welders is usually considered tools of the trade paid for by employees 
in the shipbuilding industry. Anthony Buancore of the Shipbuilders 
Council of America (SCA) commented that, in the shipyard industry, 
welders' leathers and gloves are considered to be necessary PPE and a 
part of an employee's tools of the trade (Tr. 103). William McGill, 
representing the International Brotherhood of Electrical Workers also 
testified that welders' PPE was not paid for by the company and that 
these costs have been the subject of collective bargaining agreements 
(Tr. 570). Avondale Industries, Inc., noted that some items of welders' 
PPE are worn next to the skin and could absorb perspiration. According 
to Avondale, such PPE cannot be used by more than one employee (Ex. 12-
112).
    However, it is not clear from the record that this reflects a 
common practice throughout the maritime industry. Testimony relating to 
a meeting of the Maritime Advisory Committee for Occupational Safety 
and Health (MACOSH) indicated that other shipbuilding employers provide 
and pay for welding equipment, and that MACOSH declined to provide OSHA 
with a recommendation on whether such PPE should be exempted from a 
payment requirement (Tr. 132-134).
    William Finkler of Union Tank Car company, a manufacturer of rail 
cars, testified that

    * * * we oppose the proposed standard because to a large degree 
it contradicts traditional cost allocations in skilled trades. For 
example, professional welders know that welding gloves, leather 
aprons and welding helmets are personal ``tools of the trade'' that

[[Page 41224]]

they must provide. And many of them come to work with their own 
equipment. (Tr. 144).

In the construction industry, welders who perform temporary duty are 
also expected to bring necessary PPE with them, according to testimony 
by a representative of the Associated General Contractors (Tr. 652, Ex. 
32).
    Employers and employer representatives in the electric power 
industry maintained that pole climbing equipment including lineman's 
belts, gloves, gaffs, hooks, pads and spikes are considered to be tools 
of the trade rather than PPE and that linemen customarily purchase the 
equipment themselves and take it with them from job to job (Ex. 12-16, 
12-38, 12-150, 12-161, 12-183, 12-206, 12-201). Comments to the record 
indicated that reasons for this practice include the need to size and 
fit the belt to the individual employee, that exchanging such belts 
with other employees could increase safety risks, and that linemen's 
hook gaffs are typically sharpened to the ``taste'' of the lineman and 
are individually adjusted to the lineman's calf length and preference. 
(Ex. 12-16, 12-38, 12-144).
    David Ayers, Director of Safety for the MYR Group, who provides 
contracted electrical services, testified that these factors along with 
the use of labor pools and high turnover in the industry make it 
necessary for employees to pay for certain kinds of linesmen PPE:

    * * * we have a very transient workforce and a lot of high 
turnover because of the jobs' completion.
    Contractors like the MYR companies draw upon a common labor pool 
in each of the geographic areas in which they perform their 
projects. * * * A lineman may have as many as four or more different 
employers in a year. * * * Today MYR already provides the following 
personal protective equipment to each employee whose work assignment 
requires it; hard hats, hard hat liners, hard hat straps, safety 
glasses, ear protection, full body harness, shock-absorbing lanyard, 
primary rubber sleeves and gloves. * * * However, our linemen have 
traditionally--and we believe appropriately--purchased their own 
lineman's tool belts, pull straps, climber sets * * * certain tools, 
and they have purchased their own work shoes and work clothes.
    The lineman has his or her own preference in the type of belt 
and who manufactures it. The lineman selects the pads and hooks to 
his or her liking. Linemen sharpen their hooks to their own 
standards. Linemen have their own preferences for a particular brand 
of pull strap.
    This subject has been the subject of the collective bargaining 
process with individual locals of the International Brotherhood of 
Electrical Workers across the country. (Tr. 633-637).

However, John Devlin of the Utility Workers' Union of America stated 
that climbing gear, belts, and harnesses are usually provided by 
employers in the electrical utility industry (Tr. 457-459). He also 
testified that, as a welder with an electric utility company, the 
employer provided and paid for all PPE except safety shoes (Tr. 447).
    The record suggests that there may be other circumstances in which 
employees customarily furnish certain items of PPE as tools of the 
trade, and that these may be relevant in determining the scope of the 
final rule. For example, a representative of a temporary labor company 
testified that they hire workers primarily to provide temporary labor 
for construction jobs and that employees pay for basic PPE such as hard 
hats, safety glasses, and safety shoes (Tr. 546). Bill Golding of Betco 
Scaffold Company commented that an ``excessive expense'' would be 
incurred to pay for PPE for temporary employees that work on several 
job sites (Ex. 12-18). Examples of PPE that the New Mexico Building 
Branch, Associated General Contractors believed should be ``part of an 
employee's tool chest'' included hard hats, safety shoes, eye and 
hearing protection, and ``gloves for specific hazards'' (Ex. 12-109). 
Similarly, the National Association of Home Builders commented that 
``piece workers are required to provide all of their own equipment for 
the job they are performing'', arguing that ``employers do not 
typically supply employees with the hammers and other tools.'' (Ex. 
33). In written comments, Caterpillar stated that, ``we expect 
temporary employees to provide their own common forms of PPE. We may 
also expect temporary employees to provide specialized equipment unique 
to an unusual job'' (Ex. 12-66). This record suggests that in some 
industries that use workers from a labor pool or temporary agency, 
employers may expect employees to bring their own PPE suitable for the 
job to be performed.
    In light of the issues outlined above, OSHA believes that further 
information is necessary to fully explore the issues concerning PPE as 
``tools of the trade.'' OSHA invites comment on how a final rule 
generally requiring employers to pay for PPE should address PPE 
considered to be tools of the trade. Specifically, OSHA invites public 
comment on the following questions:
    1. If OSHA issues a final rule that generally requires employers to 
pay for most PPE, should safety equipment considered to be ``tools of 
the trade'' be included or excluded from the requirement? On what 
basis?
    2. Several criteria for treating PPE as a tool of the trade were 
identified by rulemaking participants. These included: (1) The PPE was 
expected to be used by only one employee for reasons of hygiene or 
personal fit, (2) the employee using the PPE typically worked on 
multiple job sites or for several employers and brought the PPE with 
them to each job site, and (3) the practice of considering PPE to be a 
tool of the trade was customary in the industry. Are these reasonable 
criteria for considering whether or not to require employer payment for 
PPE regarded as a tool of the trade? Are there other criteria that 
would justify considering PPE to be a tool of the trade? If so, why?
    3. If the rule includes a specific provision for PPE considered to 
be tools of the trade, should the rule identify specific types of PPE 
that fall into this category, or should the rule generally apply a 
broad category of PPE defined to be tools of the trade? How should the 
broad category of PPE as tools of the trade be defined so that it is 
clear and unambiguous to employers and employees?
    4. Should PPE be considered to fall into the category of ``tools of 
the trade'' only for specific industry sectors where it has been 
customary to consider PPE as tools of the trade? If so, which industry 
sectors? How many employees use PPE that is considered to be tools of 
the trade? What are their occupations?
    5. Should PPE be considered to be tools of the trade only where the 
PPE is personal in nature and employees typically work for multiple 
employers and/or go from job site to job site?
    6. Provide specific examples of safety equipment that employees 
typically furnish themselves and carry from job site to job site or 
from employer to employer in your industry. What interests does this 
practice serve? In such instances, how does the employer ensure that 
the PPE is effective and complies with applicable standards? What is 
typically the practice when employees fail to bring such PPE to the job 
site? Please describe to the best of your knowledge how many employees 
wear such PPE in your industry and how often it needs to be replaced.
    7. What effect might employee payment for PPE treated as tools of 
the trade have on workplace safety and health?

Authority and Signature

    John L. Henshaw, Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of Labor, 200 Constitution Ave., 
NW., Washington, DC 20210, directed the preparation of this notice 
under the authority granted by: Sections 4, 6(b), 8(c), and 8(g) of the 
Occupational Safety and Health Act of

[[Page 41225]]

1970 (29 U.S.C. 653, 655, 657); section 107 of the Contract Work Hours 
and Safety Standards Act (the Construction Safety Act) (40 U.S.C. 333); 
section 41, the Longshore and Harbor Worker's Compensation Act (33 
U.S.C. 941); Secretary of Labor's Order No. 5-2002 (67 FR 65008); and 
29 CFR part 1911.

    Signed at Washington, DC, on July 1, 2004.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 04-15525 Filed 7-7-04; 8:45 am]
BILLING CODE 4510-26-P