OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

August 10, 1981

MEMORANDUM FOR:   DAVID H. RHONE
                 REGIONAL ADMINISTRATOR

THRU:             JOHN B. MILES
                 FIELD COORDINATOR

FROM:             BRUCE HILLENBRAND
                 DEPUTY DIRECTOR,
                 FEDERAL COMPLIANCE AND STATE PROGRAMS

SUBJECT:          Safety Footwear at Construction Sites

This is in response to a memorandum from your office, dated June 12, 1981, on the above subject.

29 CFR 1926, Subpart C, General Safety and Health Provisions, specifically 1926.28, Personal Protective Equipment, would cover an alleged violation for lack of foot protection in the construction industry. It is used in the field when an employee is exposed to a hazardous condition which could be reduced or eliminated by the use of such equipment. Note that the terminology "foot protection" is used, because a "safety shoe" may not be required.

In accordance with 29 CFR 1926.28, which is a performance oriented rule, use of personal protective equipment is required when there is exposure to hazardous conditions or other OSHA standards indicate the need to such equipment. However, when use of the equipment makes it impossible for employees to perform their work or exposed them to more hazardous conditions than they would be exposed to without such equipment, they are not required to use the equipment.

It is our opinion that the matter, and manner, of enforcing this standard for masons and their tenders remain at the area level on an exposure basis. In hazardous situations where foot protection is clearly required by the standard, employers should be cited. However, this determination must be made in a situation by situation basic for masons and mason tenders. There is no way to make an arbitrary absolute judgment in this matter, without an on-site evaluation of the various factors governing the final decision.