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2234. REQUIREMENT TO PAY FOR PERSONAL PROTECTIVE EQUIPMENT
Regulatory Plan: This entry is Seq. No. 81 in Part II of this issue of the Federal Register.
81. REQUIREMENT TO PAY FOR PERSONAL PROTECTIVE EQUIPMENT
Priority: Other Significant. Major status under 5 USC 801 is undetermined.
Unfunded Mandates: Undetermined
Legal Authority: 29 USC 655(b); 29 USC 657; 33 USC 941; 40 USC 333
CFR Citation: 29 CFR 1910 .132; 29 CFR 1915.152; 29 CFR 1917.96; 29 CFR 1918.106; 29 CFR 1926.95
Legal Deadline: None
Abstract: Generally, OSHA standards require that protective equipment (including personal protective equipment (PPE)) be provided and used when necessary to protect employees from hazards which can cause them injury, illness, or physical harm. In this discussion, OSHA uses the abbreviation "PPE" to cover both personal protective equipment and other protective equipment. The Agency is proposing to revise its PPE standards to clarify who is required to pay for required PPE and under what circumstances. According to the proposal, employers would be required to provide all OSHA-required PPE at no cost to employees, with the following exceptions: the employer would not need to pay for safety-toe protective footwear or prescription safety eyewear if all three of the following conditions are met: (1) the employer permits such footwear or eyewear to be worn off the job-site; (2) the footwear or eyewear is not used in a manner that renders it unsafe for use off the job-site (for example, contaminated safety-toe footwear would not be permitted to be worn off a job-site); and (3) such footwear or eyewear is not designed for special use on the job. Employers are also not required to pay for the logging boots required by 29 CFR 1910.266(d)(1)(v).
Statement of Need: OSHA has been issuing health, safety, and construction standards requiring appropriate PPE over a 28-year period. The regulatory language used in OSHA standards has generally clearly stated that the employer must provide PPE and ensure that employees wear it. However, the regulatory language used regarding the employer's obligation to pay for the PPE has varied.
OSHA attempted to clarify its position on the issue of payment for required PPE in a compliance memorandum to its field staff dated October 18, 1994. The memorandum stated that it was the employer's obligation to provide and pay for PPE except in limited situations.
Very recently, the Occupational Safety and Health Review Commission declined to accept this interpretation (Secretary of Labor v. Union Tank Car, OSHRC No. 96-0563). The Commission vacated a citation against an employer who failed to pay for OSHA-required PPE, finding that the Secretary had failed to adequately explain the policy outlined in the 1994 memorandum in light of several inconsistent earlier letters of interpretation from OSHA.
Therefore, the Agency needs to clarify who is to pay for PPE under what conditions, to eliminate any confusion and unnecessary litigation.
Summary of the Legal Basis: The legal basis for this proposed rule is the need to clarify OSHA's intent with regard to the payment for protective equipment required by OSHA standards promulgated under section 6 of the OSH Act.
Alternatives: OSHA has considered several alternative approaches to resolving this issue, including leaving this as a labor-management issue, issuing compliance directives to identify what PPE the employer must pay for, or requiring the employer to pay for all PPE. OSHA believes that, in this case, revising the standard to clarify who is to pay for the PPE is the most appropriate way to proceed. It is the only approach that will assure significant public participation in the resolution of this issue, and the codification of that resolution.
Anticipated Costs and Benefits: At this stage of rulemaking, the Agency has not determined costs or benefits, and will not be able to do this until the language of the proposal is finalized.
Risks: Substantive requirements for protective equipment are impacted by other standards. This proposed rule is designed solely to clarify OSHA's intent as to what protective equipment must be paid for by the employer. Accordingly, no assessment of risk is required for this proposal.
Regulatory Flexibility Analysis Required: Yes
Small Entities Affected: Businesses
Government Levels Affected: State, Local, Federal
Directorate of Safety Standards Programs
Department of Labor
Occupational Safety and Health Administration
200 Constitution Avenue NW.
Room N3605, FP Building
Washington, DC 20210
Phone: 202 219-8061
Fax: 202 219-7477
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