Employer Payment for Personal Protective Equipment, 64342-64430 [07-5608]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Rules and Regulations]
[Pages 64342-64430]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5608]



[[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

Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / 
Rules and Regulations

[[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 surface