[Federal Register: November 15, 2007 (Volume 72, Number 220)] [Rules and Regulations] [Page 64341-64430] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr15no07-22] [[Page 64341]] ----------------------------------------------------------------------- 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 [[Page 64342]] ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1910, 1915, 1917, 1918 and 1926 [Dockets S-042 (OSHA docket office) and OSHA-S042-2006-0667 (regulations.gov)] [RIN No. 1218-AB77] Employer Payment for Personal Protective Equipment AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final Rule. ----------------------------------------------------------------------- SUMMARY: 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 address PPE of many kinds: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, faceshields, chemical protective equipment, fall protection equipment, and so forth. The provisions in OSHA standards that require PPE generally state that the employer is to provide such PPE. However, some of these provisions do not specify that the employer is to provide such PPE at no cost to the employee. In this rulemaking, OSHA is requiring employers to pay for the PPE provided, with exceptions for specific items. The rule does not require employers to provide PPE where none has been required before. Instead, the rule merely stipulates that the employer must pay for required PPE, except in the limited cases specified in the standard. DATES: This final rule becomes effective on February 13, 2008. The final rule must be implemented by May 15, 2008. ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates the Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor of Labor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, to receive petitions for review of the final rule. FOR FURTHER INFORMATION CONTACT: Mr. Kevin Ropp, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-1999. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. Background III. The Proposed Rule IV. Rationale for Requiring PPE Payment and Description of the Final Rule V. PPE for Which Employer Payment Is Required VI. Employee Owned PPE VII. Industries Affected VIII. Acceptable Methods of Payment IX. Effective Dates X. Effect on Existing Union Contracts XI. Effect on Other OSHA Standards XII. Miscellaneous Issues XIII. Other Alternatives Considered During the Rulemaking Process XIV. Legal Authority XV. Final Economic and Regulatory Flexibility Analyses XVI. Environmental Assessment XVII. Federalism XVIII. Unfunded Mandates Reform Act XIX. OMB Review Under the Paperwork Reduction Act XX. State Plan Standards XXI. Authority and Signature XXII. Regulatory Text I. Introduction In 1999, OSHA issued a proposal to require employers to pay for all protective equipment, including personal protective equipment (PPE), with explicit exceptions for certain safety shoes, prescription safety eyewear, and logging boots (64 FR 15402). The proposal cited two primary reasons for requiring employers to pay for PPE. First, OSHA preliminarily concluded that the Occupational Safety and Health Act of 1970 (OSH Act, or the Act) implicitly requires employers to pay for PPE that is necessary to protect the safety and health of employees. Second, OSHA preliminarily concluded that an across-the-board employer- payment requirement would result in safety benefits by reducing the misuse or non-use of PPE (64 FR 15406-07). Following an initial notice and comment period, an informal rulemaking hearing, a second notice and comment period on specific issues, and careful Agency deliberation, OSHA finds that its preliminary conclusions are appropriate and is therefore issuing this final standard requiring employers to pay for PPE, with limited exceptions. II. Background 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-toe shoes, and protective gloves. 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, e.g., 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)(1), which requires respiratory protection for employees exposed to cadmium above a certain permissible exposure limit (PEL). Some OSHA 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 1978 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, e.g., OSHA's inorganic arsenic standard, 29 CFR 1910.1018(j)(1) and 43 FR 19584). 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, e.g., the logging standard, 29 CFR 1910.266(d)(1)(iii) and (iv) and 59 FR 51701). 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 provisions that are silent on whether the employer must pay have been subject to varying interpretation and application by employers, OSHA, the Occupational Safety and Health Review Commission (Review Commission), and the courts. In 1994, OSHA established a nationwide policy on 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 stated that where PPE is very personal in nature and used by the employee off the job, such as is often the case with steel-toe safety shoes (but not metatarsal foot protection), the issue of [[Page 64343]] payment may be left to labor-management negotiations. However, the Review Commission declined to accept the interpretation embodied in the 1994 memorandum as it applied to 29 CFR 1910.132(a). In Secretary of Labor v. Union Tank Car Co., 18 O.S.H. Cas. (BNA) 1067 (Rev. Comm. 1997), an employer was issued a citation for failing to pay for metatarsal foot protection and welding gloves. The Review 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 it read as inconsistent with that policy. In response to the Union Tank decision, OSHA issued the proposed standard on March 31, 1999 (64 FR 15402-15441). III. The Proposed Rule The proposed rule would have established a uniform requirement that employers pay for all types of PPE required under OSHA standards, except for certain safety-toe shoes and boots, 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 requires employers to pay for PPE that is necessary for employees to perform their jobs safely. Second, OSHA 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 (64 FR 15406-07). A. Preliminary Statutory Analysis OSHA advanced three main justifications for preliminarily interpreting the OSH Act to require employers to pay for virtually all PPE. As a threshold matter, OSHA cited the statute and legislative history that Congress intended that employers bear general financial responsibility for the means necessary to make workplaces safe (64 FR 15404). The Agency believed that this intent was evidenced by the fact that the statute makes employers solely responsible for compliance with safety and health standards. The employer's legal responsibility to ensure compliance implies an obligation to pay for the means necessary to that end (Id.). OSHA also relied upon statements in the legislative history demonstrating that lawmakers expected employers to bear the costs of complying with OSHA standards (Id.). OSHA further preliminarily concluded that requiring employers to pay for PPE was a logical extension of the undisputed principle that employers must pay for engineering controls. The proposal noted that most standards require employers to install engineering controls, such as ventilation devices, and to implement administrative measures, such as establishing specific regulated areas or danger zones, as the primary means for reducing employee exposure to hazardous conditions. Since the Agency viewed PPE as another type of hazard control measure used to protect employees, there was no basis to distinguish PPE from other hazard controls such as engineering controls and administrative controls for purposes of cost allocation (64 FR 15408). OSHA also indicated that requiring employers generally to pay for PPE would be consistent with the Agency's approach of including explicit requirements in many health standards that PPE must be provided at no charge to employees. B. Safety and Health Benefits Although OSHA proposed the PPE payment rule primarily to clarify employers' obligations under its standards that require employers to provide PPE, the Agency also believed that the revised rules would improve protections for employees who must wear PPE. OSHA cited a number of reasons underlying this belief in the preamble to the proposed rule. First, the Agency believed that employers were more knowledgeable about hazards existing in the workplace, and were therefore in the best position to identify and select the correct equipment and maintain it properly (Id. at 15409). Second, the Agency believed that employer payment for PPE would reduce the risk of employees not using or misusing PPE by ensuring that employers maintain central control over the selection, issuance, and use of PPE (Id.). Third, OSHA believed that employees would be more likely to cooperate in achieving full compliance with existing standards if protective equipment was provided at no charge (Id.). In the Agency's opinion, all of these considerations together would serve to increase the use and effectiveness of PPE, and thus reduce the incidence of injuries and illnesses that are caused by non-use or misuse of PPE. C. Proposed Exceptions OSHA proposed to require the employer to pay for all PPE required by OSHA standards, with explicit exceptions for certain safety-toe protective footwear and prescription safety eyewear. Safety-toe protective footwear and prescription safety glasses were excepted from the employer payment requirement, in large part because these items were considered to be very personal in nature and were often worn off the jobsite. The proposal would have allowed the exceptions if they met the following conditions: (1) The employer permits such footwear or eyewear to be worn off the jobsite; (2) the footwear or eyewear is not used at work in a manner that renders it unsafe for use off the job- site; and (3) such footwear or eyewear is not designed for special use on the job. In addition, under the proposed revision, the employer would not have to pay for logging boots required by 29 CFR 1910.266(d)(1)(v) (Id. at 15403). The limited exceptions to the general payment rule recognized that there are certain types of PPE that fall outside the scope of the general statutory requirement for employers to pay for the means of compliance with OSHA standards. While safety-toe protective shoes and boots, prescription safety eyewear, and logging boots are necessary to protect employees, the Agency considered other factors in deciding to exempt this equipment from the employer payment requirement, including that the equipment is very personal, is often used outside the workplace, and that it is taken by employees from jobsite to jobsite and employer to employer. The Agency stated that there is ``little statutory justification'' for requiring employers to pay for this type of PPE (Id. at 15407). The proposal asked for comment on the exceptions to the general employer payment requirement. One alternative on which public input was specifically requested would have excepted any type of PPE that the employer could demonstrate was personal in nature and customarily used off the job (Id. at 15416). OSHA also sought comment on whether there were other specific types of PPE besides safety-toe shoes and boots and prescription safety eyewear that should be excepted, or whether employers should pay for all PPE including safety-toe shoes and boots and prescription safety eyewear (Id.). Finally, the proposal sought comment on whether the exceptions were appropriate in high-turnover industries like construction and whether unique issues in the maritime industry should affect the issue of who pays for PPE (Id.). On July 8, 2004, OSHA published a notice to re-open the record on another category of PPE--tools of the trade--that some commenters suggested should be exempted from an employer payment requirement (69 FR 41221-41225). Specifically, OSHA asked a number of [[Page 64344]] questions and solicited comment on whether and how a final rule should address situations where PPE has been customarily provided by employees. The comments received by the Agency during this limited re-opening are included in the discussion of the rulemaking record below.\1\ --------------------------------------------------------------------------- \1\ Comments received in response to the re-opening are indicated as Exhibits ``45: X'' or ``46: X.'' All other citations refer to comments and testimony in response to the proposal. --------------------------------------------------------------------------- IV. Rationale for Requiring PPE Payment and Description of the Final Rule A. Rationale for Requiring PPE Payment In this final rule, OSHA is requiring employers to pay for the PPE used to comply with OSHA standards, with a few exceptions. OSHA is promulgating the final rule for three primary reasons. First, the rule effectuates the underlying requirement in the OSH Act that employers pay for the means necessary to create a safe and healthful work environment. This includes paying for the requirements in OSHA's safety and health standards. Second, the rule will reduce work-related injuries and illnesses. It is thus a legitimate exercise of OSHA's rulemaking authority to promulgate ancillary provisions in its standards that are reasonably related to the purposes of the underlying standards. Third, the rule will create a clear policy across OSHA's standards, thus reducing confusion among employers and employees concerning the PPE that employers must provide at no cost to employees. 1. The OSH Act Requires Employer Payment for PPE OSHA is requiring employers to pay for PPE used to comply with OSHA standards in order to effectuate the underlying cost allocation scheme in the OSH Act. The OSH Act requires employers to pay for the means necessary to create a safe and healthful work environment. Congress placed this obligation squarely on employers, believing such costs to be appropriate in order to protect the health and safety of employees. This final rule does no more than clarify that under the OSH Act employers are responsible for providing at no cost to their employees the PPE required by OSHA standards to protect employees from workplace injury and death. This policy is consistent with OSHA's past practice in numerous rulemakings. Since 1978, OSHA has promulgated nearly twenty safety and health standards that explicitly require employers to furnish PPE at no cost. For example, the standards for logging (Sec. 1910.266), noise (Sec. 1910.95), lead (Sec. 1910.1025), asbestos (Sec. 1910.1001) and bloodborne pathogens (Sec. 1910.1030) require employers to provide employees with PPE at no cost to employees. In litigation following the issuance of some of these standards, the courts and the Review Commission have upheld OSHA's legal authority to require employers to pay for PPE. 2. The Rule Will Result in Safety Benefits Separate from effectuating the statutory cost allocation scheme, this rule will also help prevent injuries and illnesses. OSHA has carefully reviewed the rulemaking record and finds that requiring employers to pay for PPE will result in significant safety benefits. As such, it is a legitimate exercise of OSHA's statutory authority to promulgate these ancillary provisions in its standards to reduce the risk of injury and death. There are three main reasons why the final rule will result in safety benefits: When employees are required to pay for their own PPE, many are likely to avoid PPE costs and thus fail to provide themselves with adequate protection. OSHA also believes that employees will be more inclined to use PPE if it is provided to them at no cost. Employer payment for PPE will clearly shift overall responsibility for PPE to employers. When employers take full responsibility for providing PPE to their employees and paying for it, they are more likely to make sure that the PPE is correct for the job, that it is in good condition, and that the employee is protected. An employer payment rule will encourage employees to participate whole-heartedly in an employer's safety and health program and employer payment for PPE will improve the safety culture at the worksite. OSHA's conclusions regarding the safety benefits of the employer payment rule are supported by the numbers of independent occupational safety and health experts in the record who stated that employer payment for PPE will result in safer working conditions. Independent safety groups that supported the rule and agreed with OSHA's analysis that it will result in safety benefits include: The American College of Occupational and Environmental Medicine (ACOEM); the American Association of Occupational Health Nurses (AAOHN); and the American Society of Safety Engineers (ASSE). The National Institute for Occupational Safety and Health (NIOSH), the federal agency with expert responsibility for occupational safety and health research created by Congress in the OSH Act, also strongly supported OSHA's conclusions that an employer payment rule would result in significant safety benefits. 3. Clarity in PPE Payment Policy Another benefit of the final PPE payment rule is clarity in OSHA's policy. While it is true that most employers pay for most PPE most of the time, the practices for providing PPE are quite diverse. Many employers pay for some items and not for others, either as a matter of collective bargaining or long standing tradition. In some cases, costs are shared between employees and employers. In other workplaces, the employer pays for more expensive or technologically advanced PPE while requiring employees to pay for more common items. However, in some workplaces exactly the opposite is true. Collective bargaining agreements often contain pages of text describing PPE provisions, including lists of the items employers will pay for and those that will be the responsibility of employees. Even these have little or no consistency. For example, Ms. Nowell of the United Food and Commercial Workers Union (UFCW) pointed to differences in PPE payment practices across food processing establishments: Our contracts show differences across industries, as well as across companies. We have also found differences between union plants and those that are non-union. Non-union workers [are] paying for more of their PPE. This variation has led to disparate treatment of workers who do the same jobs, sometimes for the same company, but at different locations. * * * One of the most inconsistent items, both as to their requirement and the issue of who pays, is rubber boots, often steel toed, for production workers. The floors in poultry and meat plants and other food processing as well * * * are wet, often from standing water, and slippery from fat and product that invariably covers the floors (Tr. 184-186). Improved clarity in OSHA's standards, as well as a more consistent approach from company to company, will have benefits for both employers and employees. The record shows that PPE provision has been a contentious issue, and that employers and employees are spending an inordinate amount of time and effort discussing, negotiating, and generally working out who is to pay for PPE. The rulemaking will put some of that discussion to rest by providing clear requirements. As noted by ASSE ``[a] key issue for ASSE members in improving the efficiency/effectiveness of safety and health programs is consistency'' (Ex. 12: 110). For these reasons, OSHA is promulgating this final rule requiring, with limited exceptions, employer [[Page 64345]] payment for PPE used to comply with OSHA standards. (See Section XIV, ``Legal Authority,'' for a more detailed discussion of the justification for the final rule.) B. Description of the Final Rule This rule does not set forth new requirements regarding the PPE that must be provided and the circumstances in which it must be provided. The rule merely requires employers to pay for the PPE that is used to comply with the Parts amended. The rule generally requires employers to pay for PPE, and sets forth specific exceptions where employers are not required to pay for such equipment. The final rule includes the exceptions in the proposed rule, which have been clarified and simplified; clarifications of OSHA's intent in the proposed rule regarding everyday clothing and weather-related clothing; and clarifications regarding employee-owned PPE and replacement PPE that were raised by various commenters. While these clarifications have added several paragraphs to the regulatory text, the final rule provides employees no less protection than that provided by the proposal. The first paragraph in the final rule contains the general requirement that employers must pay for the protective equipment, including personal protective equipment that is used to comply with the amended OSHA standards. (See 29 CFR 1910.132(h)(1); 1915.152(f)(1); 1917.96; 1918.106; 1926.95(d)(1)) The provisions that follow the first paragraph modify this general requirement for employer payment and include the limited exceptions to the employer-payment rule. Employers are responsible for paying for the minimum level of PPE required by the standards. If an employer decides to use upgraded PPE to meet the requirements, the employer must pay for that PPE. If an employer provides PPE at no cost, an employee asks to use different PPE, and the employer decides to allow him or her to do so, then the employer is not required to pay for the item. The first exception addresses non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear. (See 29 CFR 1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) The regulatory text makes clear that employers are not required to pay for ordinary safety-toe footwear and ordinary prescription safety eyewear, so long as the employer allows the employee to wear these items off the job-site. The second exception relates to metatarsal protection. (See 29 CFR 1910.132(h)(2); 1915.152(f)(2); 1917.96(a); 1918.106(a); 1926.95(d)(2)) The final rule clarifies that an employer is not required to pay for shoes with integrated metatarsal protection as long as the employer provides and pays for metatarsal guards that attach to the shoes. A third exception to the final rule is located only in the general industry standard (at 29 CFR 1910.132(h)(4)(i)) and exempts logging boots from the employer payment requirement. The logging standard does not require employers to pay for the logging boots required by 1910.266(d)(1)(v), but leaves the responsibility for payment open to employer and employee negotiation. The final rule makes clear that logging boots will continue to be excepted from the employer payment rule. The fourth exception to employer payment in the final rule relates to everyday clothing. (See 29 CFR 1910.132(h)(4)(ii); 1915.152(f)(4)(i); 1917.96(d)(1); 1918.106(d)(1); 1926.95(d)(4)(i)) The final rule recognizes that there are certain circumstances where long- sleeve shirts, long pants, street shoes, normal work boots, and other similar types of clothing could serve as PPE. However, where this is the case, the final rule excepts this everyday clothing from the employer payment rule. Similarly, employers are not required to pay for ordinary clothing used solely for protection from weather, such as winter coats, jackets, gloves, and parkas (See 29 CFR 1910.132(h)(4)(iii); 1915.152(f)(4)(ii); 1917.96(d)(2); 1918.106(d)(2); 1926.95(d)(4)(ii)). In the rare case that ordinary weather gear is not sufficient to protect the employee, and special equipment or extraordinary clothing is needed to protect the employee from unusually severe weather conditions, the employer is required to pay for such protection. OSHA also notes that clothing used in artificially- controlled environments with extreme hot or cold temperatures, such as freezers, are not considered part of the weather gear exception. The final rule clarifies the issue of who pays for replacement PPE. The final rule requires that the employer pay for the replacement of PPE used to comply with OSHA standards. (See 29 CFR 1910.132(h)(5); 1915.152(f)(5); 1917.96(e); 1918.106(e); 1926.95(d)(5)) However, in the limited circumstances in which an employee has lost or intentionally damaged the PPE issued to him or her, an employer is not required to pay for its replacement and may require the employee to pay for such replacement. The final rule also clearly addresses the use of employee-owned PPE. (See 29 CFR 1910.132(h)(6); 1915.152(f)(6); 1917.96(f); 1918.106(f); 1926.95(d)(6)) The rule acknowledges that employees may wish to use PPE they own, and if their employer allows them to do so, the employer will not need to reimburse the employees for the PPE. However, the regulatory text also makes clear that employers cannot require employees to provide their own PPE or to pay for their own PPE. The employee's use of PPE they own must be completely voluntary. The final provision in the rule provides an enforcement deadline of six months from the date of publication to allow employers time to change their existing PPE payment policies to accommodate the final rule. (See 29 CFR 1910.132(h)(7); 1915.152(f)(7); 1917.96(f); 1918.106(f); 1926.95(d)(7)) A note to the final standard also clarifies that when the provisions of another OSHA standard specify whether or not the employer must pay for specific equipment, the payment provisions of that standard will prevail. Sections V through XI below further describe the final rule and discuss the comments received during the rulemaking process: Section V describes the PPE required to be paid for by employers, and the exceptions to the payment requirement. It also explains the final rule's treatment of replacement PPE. Section VI discusses the exception from employer payment when an employee owns appropriate PPE and asks to use it in place of the equipment the employer provides. Section VII discusses the industries affected by the final rule and how employer payment applies to different employment situations. Section VIII describes acceptable means for employers and employees to comply with the final rule and discusses various payment mechanisms employers and employees have created to effectuate payment for PPE. Sections IX through XI explain the effective date of the final rule, the effect of the rule on collective bargaining agreements, and how employer payment provisions in other standards affect the provisions in the final rule. V. PPE for Which Employer Payment Is Required In this section, OSHA will address several key issues, including the personal protective equipment that employers are required to provide at no cost to their employees and the protective equipment that is exempted. OSHA wishes to emphasize that this [[Page 64346]] rulemaking does not change existing OSHA requirements as to the types of PPE that must be provided. Instead, the rule merely stipulates that the employer must pay for PPE that is required by OSHA standards, with the exceptions listed. The items excepted from payment by this rule are: Non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, that is allowed by the employer to be worn off the job- site; Shoes or boots with built-in metatarsal protection that the employee has requested to use instead of the employer-provided detachable metatarsal guards; Logging boots required by 1910.266(d)(1)(v); Everyday work clothing; or Ordinary clothing, skin creams, or other items used solely for protection from the weather. This section is particularly important because commenters to the rulemaking record identified a number of items that they thought would be subject to the rule and asked the Agency to clarify whether the final rule would cover the items. Some of these items are: gloves (see, e.g., Exs. 12: 7, 17, 19, 55, 68, 111, 129, 149, 163, 171, 217, 235), metatarsal shoes (see, e.g., Exs. 12: 149, 235) , sunglasses (see, e.g., Exs. 12: 129, 222), goggles (see, e.g., Exs. 12: 111, 163), flame retardant clothing (see, e.g., Exs. 12: 16, 132, 133, 183, 206, 221, 46: 46), personal apparel (see, e.g., Exs. 12: 10, 16, 28), standard work apparel (see, e.g., Exs. 12: 55, 129), long-sleeve shirts (see, e.g., Exs. 12: 210, 222), long pants (see, e.g., Exs. 12: 117, 222), jeans (see, e.g., Ex. 12: 10), cotton coveralls (see, e.g., Ex. 12: 210), cold weather gear (see, e.g., Exs. 12: 129, 210), non safety-toe work boots (see, e.g., Ex. 12: 10), hard hats (see, e.g., Exs. 12: 29, 55, 68, 91, 112), aprons (see, e.g., Exs. 12: 111, 163), rain suits (see, e.g., Exs. 12: 55, 91, 210), back belts (see, e.g., Ex. 12: 111, 163), coveralls (see, e.g., Ex. 12: 111, 129, 163), tool belts (see, e.g., Ex. 12: 129), and face masks in areas where respirators are not required (see, e.g., Ex. 12: 109). While OSHA believes it is setting forth a clear requirement in this final rule--that employers pay for PPE required by OSHA standards except for the exceptions listed in the standard--OSHA understands the request by commenters to provide guidance on the applicability of the standard to certain pieces of equipment. OSHA does that in this section. The section is divided into three discussions. First, the Agency discusses those items that are not PPE or are not required by OSHA standards and thus not covered by the final rule. Second, the Agency addresses the exceptions to the general employer payment requirement in the final rule. And third, OSHA describes other items the Agency determined needed more extensive discussion, based on the comments to the record. A. Items That Are Not Considered To Be PPE or Are Not Required by OSHA Standards The final rule clarifies that an employer's obligation to pay for PPE is limited to PPE that is used to comply with the OSHA standards amended by this rule, except for the specific listed exceptions. Thus, if a particular item is not PPE or is not required by OSHA standards, it is not covered by the final rule. Many commenters sought clarification as to whether certain items were PPE and would therefore need to be paid for by employers. These items included coveralls (See, e.g., Exs. 12: 111, 163, 206; 45: 28); aprons (See, e.g., Exs. 12: 111, 163, 206); uniforms (See, e.g., Exs. 12: 19, 55. 91); overalls (See, e.g., Ex. 45: 28); standard work clothing (See, e.g., Exs. 45: 28, 48; 12: 55, 91; 46: 44); and everyday work gloves (See, e.g., Exs. 12: 6, 7, 22, 55, 68, 91, 109, 111, 129, 163, 171, 172, 173, 189, 206, 212, 221, 222; 45: 13, 28). In a representative comment, Rowan Companies, Inc. remarked that the standard should not be ``[a]n ``open checkbook'' to force employers to provide for common and routine items not necessary for personal protection.'' This commenter added: [o]ther items could be considered personal protective equipment by those wishing to unfairly benefit from this rulemaking * * * by using overly broad interpretations of the proposed wording, items such as cotton work gloves, rubber boots, rain suits, and uniforms could be labeled personal protective equipment (Ex. 12: 55). A number of electrical contractors raised the issue of tools required for performing electrical work under the National Fire Protection Association's NFPA 70E (Standard for Electrical Safety in the Workplace) voluntary consensus standard, which requires certain tools to be voltage rated (See, e.g., Exs. 41: 1; 45: 6, 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, 26, 29, 38, 40). Several electric utility firms noted that ``[s]ome equipment can be considered to be personal tools, or it may be used for convenience or cleanliness versus protection from hazards * * *'' (See, e.g., Exs. 12: 107, 114, 150, 201, 206). Dow was concerned that the rule could be interpreted to mean that employers would be required to pay for ``[e]ven the most basic work clothes, hats, ear muffs, sunglasses, long sleeve shirts, pants, socks, etc.'' (Ex. 12: 129). Under the final rule, employers are not required to pay for items that are not PPE. This includes some of the items identified by commenters above. Uniforms, caps, or other clothing worn solely to identify a person as an employee would not be considered to be PPE because such items are not being worn for protection from a workplace hazard. Similarly, items worn to keep employees clean for purposes unrelated to safety or health are not considered to be PPE. Thus, items such as denim coveralls, aprons or other apparel, when worn solely to prevent clothing and/or skin from becoming soiled (unrelated to safety or health), are not considered to be PPE and employer payment is not required by this rule. The same is true for items worn for product or consumer safety or patient safety and health rather than employee safety and health. Several hearing participants in the food industry mentioned use of hair nets and beard nets in their discussion of PPE worn in food processing plants (Tr. 186-187, 190). To the extent that these items are not used to comply with machine guarding requirements, but are worn solely to protect the food product from contamination, this rule does not require employer payment. Similarly, plastic or rubber gloves worn by food service employees solely to prevent food contamination during meal preparation, and surgical masks worn by healthcare personnel solely to prevent transmitting organisms to patients are not covered by this rule. Of course, cut-proof gloves used to prevent lacerations will be covered by the rule, and employer payment is required. Ordinary hand tools are also not PPE. While some specific and specialized tools have protective characteristics, such as electrically insulated ``hot sticks'' used by electric utility employees to handle live power lines, these tools are not considered to be PPE. They are more properly viewed as engineering controls that isolate the employee from the hazard--similar to safe medical devices (e.g., self-sheathing needles) required under OSHA's Bloodborne Pathogens (BBP) standard--and thus would not be covered by this final rule. (As an engineering control method, however, employers must pay for this equipment.) Numerous commenters noted that many types of equipment or clothing could be considered PPE and that the [[Page 64347]] proposed rule might then require employers to pay for those items. More specifically, Organization Resource Counselors, Inc. (ORC) stated: Many companies have long-standing general safety rules or policies requiring workers to wear types of work clothing or use items which are not specifically regulated by other OSHA standards, but which may help workers to avoid workplace injury. Examples are long sleeved shirts, long-legged pants, and simple work gloves (fabric or leather). All of these will help prevent abrasions to skin, but are not specified in any OSHA standard, are not currently viewed as PPE * * * Similarly, coats, hats, and gloves worn by employees working outdoors have an employee health enhancement aspect in that they protect against exposure to the elements * * * (Ex. 12: 222). In a similar discussion, Bell Atlantic commented: ``Bell Atlantic requires its technicians to wear long sleeve shirts and long pants when climbing utility poles; this PPE protects the employee's skin from abrasion, irritation, splinters, etc. This clothing is personal in nature and it is worn off the job; we do not specify what types of long sleeve shirts and long pants must be worn'' (Ex. 12: 117). The National Arborist Association (NAA) also was concerned that the proposed rule would potentially: [y]ield absurd results such as shifting to employers the cost of purely personal clothing items which are required to be worn on the job for a protective function, but which are uniquely personal to the employee and are ubiquitously worn as much off the job as on the job--such items as required blue jeans rather than shorts to protect legs from being scratched from branches; tighter-fitting tee shirts or pants to prevent clothes from inadvertently becoming caught in a chain saw being used to cut a branch, or sturdy work boots required to be worn to provide ankle support and sole protection on rough terrain (Ex. 12: 10 pp. 2-3). In response to each of these concerns, OSHA has included language in the standard to explicitly exclude normal work clothing from the employer payment requirement. OSHA believes that this reflects the original intent of the proposal (See Section B below). Thus, if the protective equipment is used to comply with an OSHA standard, and is not exempted from payment by this standard, the employer must provide it at no cost to his or her employees. Otherwise, the employer is not required to pay for it. For example, hearing protectors are required to be provided in general industry and construction under the provisions Sec. 1910.95 and Sec. 1926.101, respectively. Therefore, employers are required to pay for hearing protection. On the other hand, dust masks and respirators that an employer allows employees to use under the voluntary use provisions of the Sec. 1910.134 respiratory protection standard are not required to comply with an OSHA standard. Because of this, employer payment is not required. The NAA also raised the question of whether Section 5(a)(1) of the OSH Act would require the provision of PPE that would be subject to an employer payment requirement (Ex. 12: 10, p. 11).\2\ OSHA's PPE standards at Sec. 1910.132, Sec. 1915.152, Sec. 1917.95, Sec. 1918.105, and Sec. 1926.95, already require employers to determine the PPE necessary for their work settings. OSHA is not aware of PPE that would protect against hazards subject to enforcement under the general duty clause that would not also be identified by such a determination. If there are any such hazards, then the PPE payment provisions of this standard would not apply since the provisions apply only to equipment used to comply with the Parts of OSHA's standards that this rule amends, not with section 5(a)(1) of the OSH Act. --------------------------------------------------------------------------- \2\ Section 5(a)(1) is the general duty clause of the Act, which requires employers to ``furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees'' (29 U.S.C. 654). --------------------------------------------------------------------------- Although employer payment is not required when an item of PPE is not used to comply with an OSHA standard, OSHA encourages employers to pay for this PPE, given the safety benefits OSHA finds will accrue when employers are responsible for providing and paying for PPE. B. Exceptions 1. Safety-Toe Protective Footwear and Non-Specialty Prescription Safety Eyewear The proposed rule included exemptions for safety-toe protective footwear, often called steel-toe shoes, and prescription safety eyewear. The proposal would have placed conditions on these exemptions: (1) The employer permits such footwear or eyewear to be worn off the jobsite; (2) the footwear or eyewear is not used at work in a manner that renders it unsafe for use off the jobsite; and (3) such footwear or eyewear is not designed for special use on the job (64 FR 15415). The final rule contains a similar condition; employers are not required to pay for these items when they are permitted to be worn off the jobsite. In the proposed rule, the Agency reasoned that safety-toe protective footwear should be exempted because it was sized to fit a particular employee and is not generally worn by other employees due to size and hygienic concerns; was often worn away from the jobsite; was readily available in appropriate styles; and was customarily paid for by employees in some industries (Id. at 15415). OSHA also noted that the 1994 policy memorandum exempted safety shoes from the employer payment requirement (Id.). The Agency proposed to exempt prescription safety eyewear because it also was very personal in nature, could generally be used by only one employee, and was commonly used away from work (Id.). Many commenters supported the proposed exceptions for safety-toe protective footwear and non-specialty prescription safety eyewear (See, e.g., Exs. 12: 4, 7, 9, 28, 111, 113, 117, 163, 184, 201). In a representative comment, BP-Amoco stated: BP-Amoco concurs with OSHA's approach to this topic in the proposed rule. These two items are different than other types of personal protective equipment in that they are individually fitted and the styling of these items is important to many employees. Therefore, eyewear and safety shoes should be excluded from a general requirement for employers to pay for personal protective equipment. We further agree that the three conditions associated with this exception are appropriate and should be retained without modification in the final rule (Ex. 12: 28). The Voluntary Protection Program Participants Association (VPPPA) added: As OSHA has proposed, it is reasonable for employees to pay for PPE that is used off the job as well as on (i.e. PPE that satisfies the proposed standard's 3 conditions) and it should be left to the employees and employer to reach an agreement for the purchase of this kind of PPE. Some facilities may decide it is in their best interest--for employee morale or other reasons--to pay for this equipment, but the decision should be voluntary (Ex. 12: 113). Other commenters strongly objected to any exceptions, and urged OSHA to require employers to pay for all types of PPE. Several stated that PPE is part of the hierarchy of controls, and while OSHA would not ask an employee to pay for a ventilation system, neither should it expect the employee to pay for any PPE (See, e.g., Exs. 12: 19, 12: 100, 22A, 23, 25, 26A, 37, 100; Tr. 173-174, Tr. 241, Tr. 320, Tr. 366, Tr. 463-464). Some commenters expressed the opinion that the ``personal'' nature of certain types of PPE was not an appropriate basis for exempting the PPE from an employer payment requirement (Exs. 19, 23, 24A, 24B; Tr. 278, Tr. 337, Tr. 342). In addition, there were a number of comments challenging the basis for [[Page 64348]] exempting safety-toe protective footwear and prescription safety eyewear because employees can and do use them off the job site (see, e.g., Exs. 22, 24B, 24C; Tr. 198-199, Tr. 264, Tr. 274, Tr. 280, Tr. 356-358, Tr. 372-373). NIOSH, ISEA, and the United Auto Workers (UAW) argued that off-the-job use of PPE should not relieve employers of their obligation to pay for PPE and that employers should, in fact, encourage the use of PPE off the jobsite to promote safe behaviors of their employees (Exs. 12: 130, 230, 23; Tr. 72-73, Tr. 450, Tr. 598). After careful consideration of the comments, OSHA has decided to retain the exceptions for non-specialty safety-toe protective footwear and non-specialty prescription safety eyewear in the final PPE payment standard. The Agency believes that these two items have unique characteristics that continue to warrant exemption from employer payment. OSHA believes employers should not have to pay for non-specialty prescription safety eyewear for several reasons. Prescription safety eyewear is designed for the use of a single individual. Some of the employees who require such correction wear contact lenses, thus allowing them to wear non-prescription safety eyewear. Additionally, employers would rarely, if ever, be required under an OSHA standard to provide non-specialty prescription safety eyewear to their employees. The eye protection standards for each affected industry (Sec. 1910.133, Sec. 1915.153, Sec. 1917.91, Sec. 1918.101, and Sec. 1926.102) allow the employer the option of providing either appropriate prescription safety eyewear or alternate protection that can fit over an employee's regular prescription glasses, such as goggles or a face shield. Each standard specifies that the alternate protection must not disturb the adjustment or positioning of the spectacles. This requirement ensures that an employee's vision is not altered by the safety device, which could create an additional safety concern. While it is true that non-specialty prescription safety eyewear may be less cumbersome than items worn over eyeglasses, because non-specialty prescription safety eyewear is not the only PPE option for achieving adequate eye protection, and is designed for the use of a single individual, employers should not be required to pay for this protection. Therefore, OSHA is retaining the exemption for non- specialty prescription safety eyewear in the final standard. (Prescription inserts for full-facepiece respirators and diving helmets are discussed later.) Unlike non-specialty prescription safety eyewear, the use of safety-toe protective footwear is clearly required by OSHA standards when employees are exposed to hazards that could result in foot injuries. However, OSHA has historically taken the position that safety-toe protective footwear has certain attributes that make it unreasonable to require employers to pay for it in all circumstances, as further discussed in Section XIV, ``Legal Authority''. Safety footwear selection is governed by a proper and comfortable fit. It cannot be easily transferred from one employee to the next. Unlike other types of safety equipment, the range of sizes of footwear needed to fit most employees would not normally be kept in stock by an employer and it would not be reasonable to expect employers to stock the array and variety of safety-toe footwear necessary to properly and comfortably fit most individuals. Furthermore, most employees wearing safety-toe protective footwear spend the majority of their time working on their feet, and thus such footwear is particularly difficult to sanitize and reissue to another employee. Other factors indicate as well that employers should not be required to pay for safety-toe protective footwear in all circumstances. Employees who work in non-specialty safety-toe protective footwear often wear it to and from work, just as employees who wear dress shoes or other non-safety-toe shoes do. In contrast, employees who wear specialized footwear such as boots incorporating metatarsal protection are likely to store this type of safety footwear at work, or carry it back and forth between work and home instead of wearing it. As explained in detail in the Legal Authority section, OSHA does not believe that Congress intended for employers to have to pay for shoes of this type. For all of these reasons, OSHA has decided to continue to exempt non-specialty safety shoes from the employer payment requirement. OSHA, however, also wants to make clear that this exemption applies only to non-specialty safety-toe shoes and boots, and not other types of specialty protective footwear. Any safety footwear that has additional protection or is more specialized, such as shoes with non-slip soles used when stripping floors, or steel-toe rubber boots, is subject to the employer payment requirements of this standard. Put simply, the 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. (OSHA also notes that normal work boots are exempted from employer payment under a different provision of the final rule, discussed later in this section.) Finally, the rule essentially retains the conditions for the exceptions contained in the proposal, although OSHA has tried to simplify them in the regulatory text. The rule states that the employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) \3\ and non-specialty prescription eyewear, provided that the employer permits such items to be worn off the jobsite. The term ``non-specialty'' is used to indicate that the footwear and eyewear being exempted is not of a type designed for special use on the job (e.g., rubber steel-toe shoes). This is consistent with the condition in the proposed rule that the equipment not be ``designed for special use on the job.'' The final rule also incorporates the condition from the proposed rule that requires the employer to pay for PPE that is not permitted to be used off the job. --------------------------------------------------------------------------- \3\ The parenthetical phrase ``including steel toe shoes or steel-toe boots'' is included since this terminology is commonly used in reference to non-specialty safety-toe protective footwear. --------------------------------------------------------------------------- The proposed regulatory text also contained an employer payment condition for footwear or eyewear based on whether its use at work renders it unsafe for use off the jobsite. The Agency is concerned that this condition could be construed as creating a general requirement that contaminated equipment remain on-site. While this is a prudent practice in many instances, and a requirement in some substance- specific standards, making this a general requirement under the Parts amended by this rule is outside the scope of this rulemaking. OSHA also believes that an explicit condition for contaminated equipment is unnecessary. The final rule, like the proposal, requires employer payment if the employer does not permit the employee to take that equipment off the jobsite for any reason. Reasons for not permitting removal from the jobsite can include a requirement in an OSHA standard that such equipment not be taken off site because it is contaminated or an employer policy that contaminated equipment remain in a special area at the worksite. Because of this, OSHA does not believe it is necessary to include a separate condition related to contaminated PPE in the final rule. [[Page 64349]] 2. Everyday Work Clothing and Weather-Related Items In the regulatory text of the final rule, OSHA is also specifically exempting everyday work clothing and ordinary clothing/items used solely for protection from the weather. OSHA did not intend to cover these items in the proposed rule. A number of commenters to the rulemaking record, however, questioned whether these items would be covered and requested that OSHA clarify its position (See, e.g., Exs. 45: 28, 48; 46: 44; 12: 16, 55, 129). OSHA has determined that additional clarity was needed in the regulatory text regarding payment for everyday clothing and ordinary clothing used solely for protection from weather and has therefore made these exceptions explicit in the final regulatory text. As explained in the Legal Authority section, OSHA does not believe that Congress intended for employers to have to pay for everyday clothing and ordinary clothing used solely for protection from the weather. While serving a protective function in certain circumstances, employees must wear such clothing to work regardless of the hazards found. OSHA is exercising its discretion through this rulemaking to exempt jeans, long sleeve shirts, winter coats, etc., from the employer payment requirement. As stated, this is consistent with OSHA's intent in the proposal and is also supported by the rulemaking record. A number of commenters stated that OSHA should exempt these items from the employer payment requirement (See, e.g., Exs. 12: 10, 16, 28, 55, 117, 129, 210, 222). Thus, OSHA is not requiring employers to pay for everyday clothing even though they may require their employees to use such everyday clothing items such as long pants or long-sleeve shirts, and even though they may have some protective value. Similarly, employees who work outdoors (e.g., construction work) will normally have weather- related gear to protect themselves from the elements. This gear is also exempt from the employer payment requirement. 3. Logging Boots and Items in Other OSHA Standards Under the final rule, the employer would not have to pay for logging boots required in 29 CFR 1910.266(d)(1)(v) (61 FR 15403). In the final logging standard, OSHA concluded that logging boots should be exempt from an employer payment. The final standard recognizes this exemption, as did the proposed rule. While some commenters suggested the exception should be eliminated, citing the same reasons given above for eliminating the exception for non-specialty safety-toe protective footwear, the submitted information has not convinced the Agency that employer payment for logging boots is necessary. This is particularly true given the extensive rulemaking record developed in support of the exemption during the rulemaking for the logging standard. In addition to the provisions of the final rule clarifying the PPE that is not subject to the employer payment requirement, OSHA has added a regulatory note to each of the affected standards to make it clear that when the provisions of another OSHA standard specify whether or not the employer must pay for specific equipment, the payment provisions of that standard shall prevail. This approach provides for Agency determinations in future rulemakings that certain PPE should be specifically included or excluded from the PPE payment rule. Table V-1 provides examples of PPE and other items that an employer is not required to pay for under the specific exceptions included in the standard. This table is intended to assist in identifying items exempt from the employer payment requirement. However, it should not be construed to be an all-inclusive list. Table V-1.--Examples of PPE and Other Items Exempted From the Employer Payment Requirements ------------------------------------------------------------------------ ------------------------------------------------------------------------- Non-specialty safety-toe protective footwear (e.g., steel-toe shoes/ boots). Non-specialty prescription safety eyewear. Sunglasses/sunscreen. Sturdy work shoes. Lineman's boots. Ordinary cold weather gear (coats, parkas, cold weather gloves, winter boots). Logging boots required under Sec. 1910.266(d)(1)(v). Ordinary rain gear. Back belts. Long sleeve shirts. Long pants. Dust mask/respirators used under the voluntary use provisions in Sec. 1910.134. ------------------------------------------------------------------------ C. Other Items Raised in the Rulemaking Record If a particular item of PPE is used to comply with OSHA standards, and does not fall under the PPE standard's exceptions, then this PPE standard requires the employer to provide the item to his or her employees at no cost to the employees. OSHA solicited comment on several items in the preamble to the proposed standard, and commenters raised issues with several other items. The following discussion deals with each of these items, including prescription eyewear inserts in respirators, uniquely personalized components of personal protective equipment, welding PPE, metatarsal foot protection, equipment used by electric utility employees, and fabric or leather work gloves. 1. Prescription Eyewear Inserts in Respirators Issue eight of the preamble to the proposed PPE payment standard asked for comment on specialized respirator inserts, as follows: Full-facepiece respirators present a unique problem for employees who need prescription glasses. The temples of the prescription glasses break the face-to-face piece seal and greatly reduce the protection afforded by the respirator. Special glasses and mounts inside the facepiece of the respirator are sometimes used to provide an adequate seal. Because of this special situation, OSHA believes that it is appropriate for the employer to provide and pay for the special-use prescription glasses used inside the respirator facepiece. Is it common industry practice for employers to pay for these special glasses? What is the typical cost for providing ``insert-type'' prescription glasses inside full-facepiece respirators? (64 FR 15416). OSHA received no substantive adverse comment on employer payment for this equipment. Commenters offered a number of observations and recommendations, however, including that the employer should pay for all components needed to ensure the effectiveness of the PPE (Ex. 12: 134, 190, 218), the eyewear is part of the respirator (12: 134, 218), and the employer should pay for lenses and hardware, but the employee should pay for the doctor's exam (Ex. 12: 51). The ISEA noted that full-facepiece respirator inserts: [s]hould be supplied and paid for by the employer * * * A full- facepiece respirator insert costs roughly $50-$100, depending on the prescription (single, bifocal, etc.), the material (polycarbonate, etc.), and the fitting-delivery system used (Ex. 12: 230). Additional comment on respirator inserts was provided by the ASSE, which stated that: ``[m]ost prescription safety eyewear will fit into a full-face respirator with the appropriate mounts. We are aware of some circumstances when an additional specific frame had to be ordered to work with such a facemask. Most of our members commented that from their experience, most employers would pay for the additional product in such a situation'' (Ex. 12: 110). Blais Consulting offered a somewhat different view, stating that: [[Page 64350]] Full face respirators do present a problem with spectacles as the temples frequently will break the face-to-face piece seal and greatly reduce the protection afforded by the respirator. * * * I concur with OSHA that it is appropriate for the employer to provide and pay for the special-use prescription glasses to use inside the respirator face piece as the spectacle must be worn to fulfill the requirements for the 29 CFR 1910.134 Respiratory Protection Standard and is not of a street-wear type spectacle (Ex. 12: 233). Dow noted that: [w]here full face respirators are required to be worn on the job, it is reasonable for the employer to pay for prescription glasses to be worn. OSHA allows the use of contact lenses when a full face respirator is worn. Dow does not believe that this regulation should be construed to require the employer provide contact lenses for employees who also happen to wear respirators on the job (Ex. 12: 129). Corrective eyewear is necessary for the employee to see clearly in order to safely perform his or her job, yet not all employees who require vision correction and use full facepiece respirators wear contact lenses. A major concern with a full facepiece respirator is that the seal between the employee's face and the respirator must not leak. If it does, then the respirator will not provide the intended protection. Therefore, items that pass under the seal, such as the temple pieces of prescription glasses, break the face to facepiece seal. If the employee's prescription glasses cannot be fitted into the respirator without compromising the seal, then there is no alternative. Special lenses will be needed to protect the employee, and they must be provided at no cost to that employee. OSHA has determined that when special-use prescription lenses must be used or mounted inside the respirator facepiece, employers must pay for the lenses / inserts. 2. Components of Personal Protective Equipment Issue ten of the preamble to the proposed PPE payment standard asked for comment on PPE components, such as shoe inserts, head coverings used under welding helmets and custom prescription lens inserts worn under a welding helmet or a diving helmet (64 FR 15416). A number of commenters supported employer payment for components in some circumstances. Various commenters suggested that employers should pay because the only function of the component is to protect the employee from workplace hazards (See, e.g., Exs. 12: 190, 218). The ISEA remarked that: [e]mployers have an obligation to properly protect employees from all occupational hazards. If uniquely personalized components of PPE are protective in nature-such as winter liners for hardhats-then employers should pay for them. Employers should pay for custom prescription lens inserts used under a welding helmet because safety glasses should be worn when welding. It is not functional to wear street prescription glasses, a protective goggle and a welding helmet. All equipment necessary for employees to adequately perform their jobs should be paid for by the employer (Ex. 12: 230). The UFCW raised the issue of shoe inserts, remarking that: Shoe inserts, as personal protective equipment, are a control method for alleviating the hazard of standing for prolonged periods of time on hard surfaces. The United Auto Workers, through workplace surveys, has recently documented the need for shoe inserts for their members who work in the ``big three'' auto plants and stand all day. In fact, collective bargaining agreement language requires that the employer provide inserts, free of charge, to workers who need them. Anti-fatigue mats are common in retail food stores, and in some manufacturing plants. These are provided by the employer to address this hazard, an acknowledgment on the part of the employer that this hazard does exist. As anti-fatigue mats are provided at no cost to provide some support and relief of the lower extremities and lower back, so should shoe inserts. In fact, shoe inserts can be used where anti-fatigue mats cannot, such as in locations in meat and poultry plant