May 11, 2009
Ms. Jackie Nowell, Director
Occupational Safety and Health Office
United Food & Commercial Workers International Union, CLC
1775 K Street, NW
Washington DC 20006-1598
Dear Ms. Nowell:
Thank you for your February 20, 2009, letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question or scenario not delineated within your original correspondence. Your scenario and questions have been restated below for clarity.
Scenario: Employees face slippery floors at meatpacking and poultry slaughter plants every day. The floors are wet and littered with pieces of fat and other product. Temperatures and traffic in the plants cause the fat to adhere to the floor creating a very slippery surface, despite the use of non-skid surfacing products that are easily worn away or need constant replacement. The floors are slippery throughout the plant, including the stairs and hallways leading to locker rooms and cafeterias.
Because of these conditions, meatpacking and poultry companies require the use of steel-toe rubber boots. However, several meatpacking companies and poultry plants may require the steel-toe rubber boots to be worn, but do not provide them at no cost to their employees.
Question 1: Would steel-toe rubber boots be considered specialty footwear, and would the employer be required to provide these boots at no cost to its employees?
Reply 1: Yes. The PPE standard, 29 CFR 1910.132(h)(2) provides that "[t]he employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) . . . provided that the employer permits such items to be worn off the job-site." 29 CFR 1910.132(h)(2). As OSHA explained in the Final Rule for Employer Payment for PPE, "exempted footwear provides the protection of an ordinary safety-toe shoe or boot, while footwear with additional safety attributes beyond this (e.g., shoes and boots with special soles) fall under the employer payment requirement." The agency also said that, "[t]he term 'non-specialty' is used to indicate that the footwear.. .being exempted is not of a type designed for special use on the job (e.g., rubber steel-toe shoes)." 72 Fed. Reg. 64342, 64348 (Nov. 15, 2007).
Further, as you are aware, OSHA used rubber boots with steel toes as an example of PPE for which employer payment is required if used to comply with an OSHA standard. See Table V-2 of the Final PPE Payment Rule, 72 Fed. Reg. 64342, 64353 (Nov. 15, 2007). Therefore, for the scenario described, the employer is required to pay for the steel-toe rubber boots.
Question 2: If the employer allows its employees to wear the steel-toe rubber boots offsite (for personal use), would the employer be exempt from full payment for this footwear?
Reply 2: No. Since this specialty footwear is required for the job, the employer is required to provide it at no cost to the employee. This is still the case if the employer allows employees to use the footwear off the job.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.
Richard E. Fairfax, Director
Directorate of Enforcement Programs