64342 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

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 employerpayment 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 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64343 

payment may be left to labormanagement 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 


jlentini on PROD1PC65 with RULES3
64344 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

1Comments received in response to the reopening are indicated as Exhibits ‘‘45: X’’ or ‘‘46: 

X.’’ All other citations refer to comments and 

testimony in response to the proposal. 

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

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 

(§ 1910.266), noise (§ 1910.95), lead 

(§ 1910.1025), asbestos (§ 1910.1001) 

and bloodborne pathogens (§ 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 wholeheartedly 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. Nonunion 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 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 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 nonspecialty 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 


jlentini on PROD1PC65 with RULES3
64346 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

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 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64347 

2Section 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). 

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; tighterfitting 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 

§ 1910.95 and § 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 § 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 

§ 1910.132, § 1915.152, § 1917.95, 

§ 1918.105, and § 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. 

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 


jlentini on PROD1PC65 with RULES3
64348 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

3The parenthetical phrase ‘‘including steel toe 

shoes or steel-toe boots’’ is included since this 

terminology is commonly used in reference to nonspecialty safety-toe protective footwear. 

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 safetytoe protective footwear and nonspecialty 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 nonprescription 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 

(§ 1910.133, § 1915.153, § 1917.91, 

§ 1918.101, and § 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 fullfacepiece 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 safetytoe 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 nonspecialty 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. 

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 substancespecific 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. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 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 nonspecialty 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 

§ 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 § 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 fittingdelivery 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: 


jlentini on PROD1PC65 with RULES3
64350 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

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 naturesuch 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 plants 

where they are impractical or a sanitation 

problem. Shoe inserts are also more practical 

for jobs which may require some walking or 

moving from one location to another, as the 

mats are stationary and do not move with the 

worker (Ex. 41). 

Others stated that the employer 

should pay up to the basic cost of the 

minimum PPE (See, e.g., Ex. 12: 228); 

the employer should pay if it is PPE 

(See, e.g., Ex. 12: 32); and the employer 

should pay ‘‘[i]f it cannot stand on its 

own use’’ (Ex. 12: 52). 

Still other commenters raised items or 

situations where they believed the 

employee, not the employer, should pay 

for the equipment. The reasons behind 

these comments include: The employee 

should pay if the item is personal in 

nature, such as shoe inserts (Ex. 12: 3); 

the employee should pay because this 

equipment is too personal (Ex. 12: 19); 

and employers should not be required to 

pay for equipment that is personal in 

nature and goes beyond what is required 

for employee safety (Ex. 12: 65). Douglas 

Battery remarked that: 

In a related issue, employers should have 

the option of electing not to provide or 

reimburse employees for PPE which is 

personal in nature. An example of ancillary 

‘‘equipment’’ which is personal in nature, but 

not required for safety, would include 

custom insoles for safety shoes which are not 

required in writing by a physician as a 

‘‘reasonable accommodation’’ to performing 

the assigned job (Ex. 12: 3). 

The question of when to require 

employer payment for PPE components 

and inserts is not easy to resolve due to 

their wide variety. However, the 

comments of ORC suggest a reasonable 

solution to the problem. ORC 

commented: 

The employer should be required to 

provide and pay for PPE that is adequate to 

protect an employee from the workplace 

hazards identified. If a personalized 

component is necessary in order for the PPE 

to provide adequate protection, it is not 

something that is typically worn or used off 

the worksite and meets the criteria proposed 

[by ORC] for exception of personal items, it 

should be the employer’s responsibility to 

provide it and pay for it. However, if the 

protection afforded by the PPE is not 

compromised by not providing the 

personalized component, the employer 

should be under no obligation to pay for the 

personalized component (Ex. 12: 222). 

OSHA has decided to adopt the basic 

approach put forward by ORC. If the 

component is needed for the PPE to 

adequately protect the employee from 

the workplace hazard the PPE is 

designed to address, the employer must 

pay for it, provided the PPE does not fall 

within one of the exceptions listed in 

the final rule. For example, if 

prescription lenses are needed so an 

employee can wear a diving helmet to 

do his or her job, then the prescription 

lenses must be provided at no cost by 

the employer. This approach is the same 

as that taken in the standard for 

prescription lens inserts for full 

facepiece respirators. 

However, if the component is not 

needed for the PPE to provide adequate 

protection, then the employer would not 

be required to pay for the component. 

For example, employers would not be 

required to pay for shoe inserts to 

prevent fatigue because the inserts are 

not needed for the PPE to perform as 

designed. In addition, if the PPE in 

which the component is placed is 

otherwise exempted from the final rule, 

the employer is not required to pay for 

the component. Thus, employers would 

not be required to pay for cold weather 

inserts worn under raincoats, because 

raincoats are otherwise exempt from 

employer payment. 

OSHA also notes that if the 

component is needed for the PPE to fit 

the employee properly, then the 

employer is required to provide the item 

at no cost to the employee. The various 

general PPE standards require the 

employer to provide properly fitting 

PPE, and if it does not fit properly it will 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64351 

not have the protective value it was 

designed to provide. Therefore, payment 

for items needed to make PPE fit 

properly is required. 

Finally, although it may seem selfevident, personalized components or 

add-ons that do not affect safety are not 

covered by the final standard. For 

example, items chosen for aesthetic 

features (e.g., logos, color, style) that 

have no additional safety purpose do 

not fall under the employer payment 

requirements. 

3. Metatarsal Protection 

While the non-specialized safety-toe 

protective footwear that is exempted 

from the PPE payment requirements 

contains a protective device for the toes, 

metatarsal protection is designed to 

protect the top of the foot from the toes 

to the ankle over the instep of the foot. 

This protection is required by the OSHA 

standards when there is a potential for 

injury to that part of the foot from 

impact or compression hazards that 

could occur, for example, from handling 

heavy pipes, or similar activities where 

loads could drop on or roll over an 

employee’s feet. Metatarsal protection is 

available both as an integrated part of 

the footwear, and as a guard that can be 

attached to a shoe or boot to provide 

protection. 

OSHA did not exempt metatarsal 

protection from the employer payment 

requirement in the proposed rule. In its 

introductory remarks at the informal 

public hearing, OSHA explained that 

‘‘* * * the proposed exception would 

not apply to metatarsal protection, 

metatarsal guards or protective footwear 

that incorporates metatarsal protection, 

or special cut-resistant footwear because 

these kinds of footwear are not generally 

used off the worksite and employers 

often reissue metatarsal guards and cutresistant footwear to subsequent 

employees’’ (Tr. 19–20). 

A number of commenters suggested 

that metatarsal shoes should be 

exempted from the employer payment 

requirement (See, e.g., Exs. 12: 66, 149, 

155, 222, 235). Caterpillar, Inc. offered 

several reasons why metatarsal shoes 

should be exempted, stating: 

Virtually all metatarsal shoes with integral 

guards are personal in nature and belong to 

an individual employee. * * * OSHA states 

a belief that there is little statutory 

justification for requiring employers to pay 

for personal protective equipment if it is used 

away from the workplace and if three 

proposed conditions are met. The third 

condition contains an assumption that if ‘the 

footwear has built-in metatarsal guards as 

well as safety-toes, it could not be worn offsite’, which is not a valid assumption. 

Employees do wear their metatarsal shoes 

off-site (Ex. 12: 66). 

The Specialty Steel Industry of North 

America (SSINA) remarked: 

SSINA member companies are committed 

to employee safety and health, and provide 

and pay for all types of personal protective 

equipment (‘‘PPE’’). Although SSINA 

supports the proposed rule in general, the 

association is concerned about the absence of 

a provision allowing payment terms for 

metatarsal shoes to be negotiated through 

collective bargaining agreements. Because of 

the importance of these shoes to specialty 

steel workers, the payment terms for this type 

of protective footwear are generally specified 

in collective bargaining agreements 

negotiated with labor unions. SSINA believes 

that the proposed PPE rule prohibits this 

process (12: 1498). 

Consolidated Edison Company of 

New York, Inc. asked OSHA to clarify 

in the final rule that employers are not 

required to pay for shoes with 

metatarsal protection if the employer 

offers, free of charge, foot guards to be 

worn over regular safety footwear (Ex. 

12: 155). 

In the final standard, OSHA has 

decided not to exempt metatarsal 

protection from the PPE payment 

provisions. OSHA disagrees with those 

commenters who suggested that 

metatarsal protection is ubiquitous and 

is frequently worn by employees away 

from the worksite. Several hearing 

participants testified that this footwear 

is not normally worn off site (Tr. 203; 

349; 390–391). Specifically, Jacqueline 

Nowell of the UFCW referenced a court 

decision requiring the employer to pay 

for metatarsal support boots. The judge 

based his finding on testimony that ‘‘99 

percent of the employees use their boots 

exclusively for work’’ (Tr. 203). When 

asked about his experiences with 

employees wearing shoes with 

metatarsal guards off site, William 

Kojola of the AFL–CIO testified, ‘‘I’m 

not aware of any, in my own experience 

aware of any circumstance where a 

worker would actually use that piece of 

equipment offsite’’ (Tr. 349). Mr. Kajola 

continued that this was his experience 

regardless of whether the guard was 

built into the footwear or put on as a 

separate piece. After considering the 

comments, OSHA remains convinced 

that metatarsal protection is a 

specialized form of foot protection. In 

addition, OSHA has historically not 

exempted metatarsal protection from an 

employer payment requirement. 

In the final standard, however, OSHA 

is making clear that employers may 

provide metatarsal guards to their 

employees to protect against hazards 

and are not required to provide 

metatarsal protection that is integrated 

in the shoe. The United Steelworkers 

Union recommended that removable 

metatarsal guards be banned, asserting 

that ‘‘The removable metatarsal guard 

does not provide the needed protection 

that is provided by the built-in 

metatarsal guard that was designed for 

the specific shoe that it was attached 

to.’’ (Tr. 378–379). 

While OSHA appreciates the 

comment from the USWU, this 

rulemaking is limited to issues of PPE 

payment, and not the adequacy of 

certain types of PPE. OSHA’s longstanding policy is that when conditions 

at the workplace require metatarsal 

protection, adequate protection can be 

achieved through the proper use of 

metatarsal guards. If the employer 

requires employees to wear metatarsal 

shoes or boots, the employer is required 

to pay for them. However, the final 

standard stipulates that when the 

employer provides metatarsal guards 

and allows the employee, at his or her 

request, to use shoes or boots with builtin metatarsal protection, the employer is 

not required to pay for the metatarsal 

shoes or boots. In this circumstance, the 

final standard does not prohibit 

employers from contributing to the cost 

of metatarsal shoes or boots should they 

choose to do so. Some employers 

currently offer their employees a choice 

between using a metatarsal guard 

provided and paid for by the employer 

or a metatarsal shoe or boot with some 

portion of the cost of the shoe or boot 

paid for by the employer, essentially 

establishing an allowance system. This 

practice is not prohibited by the rule, as 

described in the Acceptable Methods of 

Payment section below. 

4. Welding Leathers 

Issue six of the preamble to the 

proposed PPE payment standard 

requested comment on PPE employers 

provide to welders to protect them from 

welding hazards, such as molten metal. 

Specifically, the Agency asked: ‘‘The 

proposal covers protective equipment 

and personal protective equipment used 

in welding, including protective gloves. 

Does welding PPE create any unique 

problems on the PPE payment issue? 

Does the employee usually pay for 

welding PPE?’’ (64 FR 15416). 

A number of commenters, many from 

the shipyard industry, recommended 

that OSHA exempt welding PPE from 

the employer payment requirement 

(See, e.g., Exs. 7, 29, 32, 39, 65, 112, 

228; 45: 52; 46: 32) indicating that it has 

been customary for welders in some 

industries to provide their own PPE. For 

example, a representative from the 

Shipbuilders Council of America (SCA) 

stated that: 

Tools of the trade for welding operations, 

such as face shields/goggles, fire resistant 


jlentini on PROD1PC65 with RULES3
64352 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

shirts/jackets, sleeves and leather gloves have 

predominantly been provided by the 

employee because of the equipment’s 

personal nature. The industry considers these 

to be tools of the trade because it is neither 

feasible for a different employee to wear the 

welders’ gloves and leathers each day for 

hygienic reasons, nor is it feasible that upon 

resigning from the position that an employee 

will leave the leathers behind to be worn by 

another individual (Ex. 46: 32). 

Other commenters stated that an 

exception for welding PPE was not 

needed (Ex. 12: 9, 17, 32, 134, 172, 190, 

191, 218, 233; 45: 27). Shell Offshore, 

Inc. stated that ‘‘* * * [a] problem 

could result if employees were expected 

to pay for welding PPE. The problem 

being that by requiring employees to 

pay for PPE may discourage use of PPE, 

or result in use of ineffective PPE’’ (Ex. 

12: 9). The International Union of 

Operating Engineers (IUOE) remarked 

that they ‘‘* * * do not believe that 

there are unique problems relating to 

welding PPE. Workers do not generally 

pay for welding PPE. All welding PPE 

should be supplied by employers’’ (12: 

134). The National Association of Home 

Builders (NAHB) stated that ‘‘Employers 

customarily pay for the PPE that is 

required for welding, including gloves, 

aprons, and face shields’’ (Ex. 12: 212). 

Testimony of members of the Maritime 

Advisory Committee for Occupational 

Safety and Health (MACOSH) also 

indicated that other maritime employers 

provide and pay for welding PPE; 

consequently, MACOSH declined to 

make a recommendation to OSHA on 

whether such PPE should be exempted 

from a payment requirement (69 FR 

41223). 

OSHA has decided not to exempt 

welding equipment from the employer 

payment provisions of the final 

standard. All of the equipment 

mentioned is clearly PPE, and the 

comments are inconsistent as to 

whether or not this equipment has any 

special qualities that would warrant an 

exception. The most common concern is 

that welders in some industries have 

customarily supplied their own 

personal protective equipment. OSHA 

has determined that this is not an 

adequate basis to exempt PPE. To the 

extent that these individuals are 

independent contractors and not 

employees covered by the OSH Act, the 

standard does not apply to them. 

Further, as noted in the employeeowned PPE section of this preamble, 

employers may allow employees to 

bring PPE they already own to work, 

and are not required to reimburse the 

employee for that PPE. Thus, if a welder 

voluntarily brings his or her own PPE to 

the worksite, and the employer ensures 

that it is appropriate for the work to be 

performed, then the employer is not 

required to provide the PPE at no cost 

to that employee. 

5. Non-Specialty Fabric or Leather Work 

Gloves 

Many commenters stated that nonspecialty fabric or leather work gloves 

should be excepted from the employer 

payment requirement (See, e.g., Exs. 12: 

6, 7, 17, 19, 29, 55, 68, 91, 109, 111, 112, 

129, 163, 171, 172, 183, 217, 221, 222). 

Southwestern Bell (Ex. 12: 6) agreed that 

more specialized gloves should be 

provided and paid for by the employer, 

but stated that ‘‘[w]e feel that everyday 

work gloves made of fabric and/or 

leather do meet those conditions 

because they can be worn off the job; 

they are not used in a manner that 

renders them unsafe for work off the job; 

and they are not designed for special 

use. Thus, we consider them to be 

personal in nature’’ (Ex. 12: 6). The 

NAHB added that ‘‘Many types of gloves 

can be used for personal use. Unless it’s 

a very special glove, such as welding or 

wire-mesh gloves, these should be 

considered as an exception’’ (Ex. 12: 

212). 

The Stevedoring Services of America 

(SSA) and the National Maritime Safety 

Association (NMSA) remarked that 

regular work gloves meet the intent of 

the proposed exemptions because they 

are purchased by size, are available in 

a variety of styles and are frequently 

worn off the job (Exs. 12: 17, 172). They 

also commented that most regular work 

gloves cannot be cleaned and sterilized 

and therefore cannot be worn by more 

than one employee (Id.). Specifically 

they stated that ‘‘[r]egular work gloves, 

like safety shoes, certainly meet the 

intent of the Secretary’s interpretation’’

and continued with the reasoning that: 

1. Regular work gloves are purchased by 

size. 

2. Regular work gloves are available in a 

variety of styles. 

3. Regular work gloves are frequently worn 

off the job. 

4. It is not feasible that each day an 

employee wears regular work gloves that 

have been worn by another employee. 

5. It is not feasible that upon resigning 

from a position that an employee leave 

regular work gloves behind for another 

employee to wear. 

6. It is almost impossible to clean and 

sterilize most regular work gloves that have 

been previously worn. 

7. The cost of issuing regular work gloves 

on a daily basis to thousands of dock workers 

nationwide would be extremely expensive to 

the employer (Id.). 

The American Trucking Association 

recommended that OSHA exempt from 

employer payment non-specialty gloves 

that meet the same three conditions as 

those proposed for safety-toe shoes. The 

recommendation is based on the fact 

that such PPE is also often allowed to 

be used off-site by employees (Ex. 12: 

171). 

In the final standard, OSHA is 

requiring employer payment for work 

gloves when they are used for protection 

against workplace hazards. Thus, when 

used as PPE—to protect employees from 

such hazards as lacerations, abrasions, 

and chemicals—employers must 

provide them at no cost. This is 

consistent with the position OSHA has 

taken in the past with this important 

form of protection. 

Furthermore, OSHA does not believe 

that gloves are similar to the other 

exempted items in the standard. Gloves 

may be distinguished from general work 

shoes and boots. Gloves are normally 

manufactured in only a few sizes. While 

gloves worn for a long period by one 

employee may become soiled, abraded, 

and so forth, they generally are not 

considered to be as highly personal in 

nature or in the same manner as 

footwear. Wear patterns of footwear 

differ between individuals resulting in a 

fit that may not conform to another 

individual’s foot or gait. Gloves, 

however, can normally be worn by 

another employee. Finally, as opposed 

to work boots and shoes, many forms of 

gloves can be laundered and sanitized 

and used by more than one employee. 

6. Electrical PPE 

Table 1 of the preamble to the 

proposal listed a number of PPE items 

required by OSHA standards, including 

flame resistant jackets and pants (64 FR 

15408). As a result, several comments 

were received regarding the issue of 

prohibited clothing in OSHA’s power 

generation and transmission standard at 

§ 1910.269(l)(6). That standard 

specifically requires the employer to 

ensure that each employee who is 

exposed to the hazards of flames or 

electric arcs does not wear clothing that, 

when exposed to flames or electric arcs, 

could increase the extent of injury that 

would be sustained by the employee. It 

further notes that clothing made from 

acetate, nylon, polyester, or rayon is 

prohibited unless the employer can 

demonstrate that the fabric has been 

treated to withstand the conditions that 

may be encountered or that the clothing 

is worn in a manner that eliminates the 

hazard. One method of meeting the 

requirements of § 1910.269, but not the 

only method, is for employers to require 

their employees to wear flame resistant 

clothing (FR clothing). This clothing is 

specifically designed to protect 

employees exposed to various levels of 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64353 

heat energy from sustaining severe burn 

injuries in areas covered by the clothing. 

A number of comments were received 

from electric utility employers, who 

stated that FR clothing is not PPE (See, 

e.g., Exs. 12: 107, 114, 133, 150, 183, 

201, 206, 221), that OSHA should 

exclude FR clothing from employer 

payment requirements (See, e.g., Exs. 

12: 16, 133), and that requiring 

employers to pay for FR clothing would 

conflict with previous interpretations by 

OSHA (See, e.g., Exs. 12: 114, 133, 150, 

206, 221). In a representative comment, 

the Edison Electric Institute (EEI) 

remarked: 

EEI is also concerned that compliance 

officers may inadvertently classify the 

apparel/clothing requirement under 

§ 1910.269(l)(6) of the Electric Power 

Generation, Transmission and Distribution 

standard as personal protective equipment. 

Classification of apparel/clothing as PPE 

would be inconsistent with OSHA’s current 

position stated in two interpretation 

letters. * * * In both of these interpretation 

letters it is stated that the apparel standard 

is not a PPE requirement. * * * EEI requests 

that OSHA state in the preamble of the final 

standard that the apparel/clothing required 

under § 1910.269(l)(6) of the Electric Power 

Generation, Transmission and Distribution 

standard is not personal protective 

equipment. This statement would avoid 

disagreements of interpretations after the rule 

is finalized (Ex. 12: 150). 

Duke Energy suggested that OSHA 

‘‘[c]learly specify that flame retardant 

apparel is not considered personal 

protective equipment’’ (Ex. 12: 133). 

OSHA’s existing clothing requirement 

in § 1910.269 does not require 

employers to protect employees from 

electric arcs through the use of flameresistant clothing. It simply requires that 

an employee’s clothing do no greater 

harm. The use of certain heavy-weight 

natural fiber materials, such as cotton, is 

allowed where the employer can assure 

that the clothing will not contribute to 

injury to the employee. Thus, the 

clothing requirement in § 1910.269 does 

not mandate employers provide any 

particular type of PPE to their 

employees and the payment 

requirement in this final rule would not 

apply to clothing permitted by 

§ 1910.269. 

It should be noted that the issue of 

whether FR clothing should be required 

by § 1910.269 is currently being 

considered by the Agency in a separate 

rulemaking to revise the electric power 

generation, transmission and 

distribution standard (70 FR 34822–

34980, June 15, 2005). The preamble 

discussion for the proposed § 1910.269 

revision included a full discussion of FR 

clothing in the electric utility industry 

and asked for specific public comment 

on this issue (70 FR 34866–34870). If 

OSHA determines in that rulemaking 

that FR clothing is required, it will then 

become subject to the PPE payment 

provisions of this rule, unless the final 

§ 1910.269 and Part 1926 Subpart V 

standards specifically exempt FR 

clothing from employer payment. 

Several electrical contracting and 

power companies also recommended 

exemptions for certain pole climbing 

equipment (See, e.g., 12: 16, 38, 144, 

161, 183, 206, 221; 46: 49). For example, 

the National Electrical Contractors 

Association (NECA) commented that 

[b]ody belts and straps for climbing poles and 

towers, climbing hooks, flame resistant 

clothing, and personal apparel of all 

description and usages should also be 

exempted from the final rule for the 

contracting electric power industry. These 

vary in design and material, have always 

been very much subject to personal 

preference and are not universally 

transferable from employee to employee’’

(Ex. 12: 16). 

In response to OSHA’s request for 

comment on how a general requirement 

for employer payment for PPE should 

address the types of PPE that are 

typically supplied by the employee, 

taken from job site to job site or from 

employer to employer, (69 FR 41221 

(July 8, 2004)), a number of electrical 

contractors submitted identical 

comments suggesting that several types 

of electrical safety equipment should be 

exempted from employer payment (See, 

e.g., Exs. 45: 6, 7, 8, 9, 10, 11, 12, 14, 

15, 16, 19, 20, 22, 23, 24, 29, 31, 37, 38, 

41, 44, 45, 46, 47; 46: 21, 22, 23, 24, 25, 

26, 27, 28, 29). They remarked that 

employers in general should pay for PPE 

used by their employees, but 

recommended OSHA provide 

exemptions for the following items: 

1. Protective clothing as listed in NFPA 

70E Table 130.7 (C)(10) for all Hazard/Risk 

Categories #2 and lower. 

2. Protective equipment as listed in NFPA 

70E Table 130.7 C (10) for all Hazard/Risk 

Categories #2 and lower. (Except for the 

equipment listed in FR Protective equipment 

subpart ‘‘e’’). 

3. Voltage rated gloves required for work in 

NFPA 70E Hazard/Risk Categories #2 and 

lower. 

4. Tools the employee is required to 

purchase, by an agreement between the 

employer and the employee, that are required 

by NFPA 70E, Hazard/Risk Categories #2 and 

lower, to be voltage rated. 

This particular equipment was 

included in a table in the National Fire 

Protection Association (NFPA) 70E 

Electrical Safety Code. Table 

130.7(C)(9)(a) of the Electrical Safety 

Code lists equipment that is to be used 

when working on various types of 

electrical systems, which are classified 

into four hazard/risk classes. OSHA 

wants to make clear that this equipment 

would only be covered by the final rule 

in those instances where it is required 

by OSHA standards. 

The first item noted by these 

commenters is fire retardant clothing, as 

discussed above. The second item 

includes a variety of PPE, including 

hard hats, safety glasses or goggles, arcrated face shields, hearing protection, 

leather gloves, and leather work shoes. 

Within the second item, except for 

leather work shoes, these items are 

required by § 1910.335 and other OSHA 

standards (depending on the exposures 

encountered) and are subject to the PPE 

payment provisions. Item three includes 

voltage rated gloves used to handle 

electrically charged lines. This is clearly 

a specialized item that employees are 

not required to purchase. As required by 

§ 1910.137, employers must inspect and 

test the gloves at regular intervals to 

ensure their continued integrity, and 

they are so critical to the protection of 

employees performing this work that 

leather gloves are worn over them to 

prevent abrasions and holes that could 

compromise their integrity. Therefore, 

employers are required to provide them 

at no cost to their employees. The fourth 

item includes insulated hand tools such 

as pliers, screwdrivers, diagonal cutters 

and wire strippers. As discussed 

previously, the Agency has concluded 

that electrically insulated tools, while 

not considered to be PPE for the 

purpose of this standard, are a 

protective control measure and the 

employer must pay for them. 

Table V–2 provides examples of PPE 

items that an employer is required to 

provide at no cost to employees under 

the final PPE payment standard. As with 

Table V–1, this table is not an 

exhaustive list of PPE that employers 

must provide to their employees at no 

cost. 

TABLE V–2.—EXAMPLES OF PPE FOR

WHICH EMPLOYER PAYMENT IS REQUIRED

[If used to comply with an OSHA standard] 

Metatarsal foot protection. 

Special boots for longshoremen working logs. 

Rubber boots with steel toes. 

Shoe covers—toe caps and metatarsal 

guards. 

Non-prescription eye protection. 

Prescription eyewear inserts/lenses for full 

face respirators. 

Prescription eyewear inserts/lenses for welding and diving helmets. 

Goggles. 

Face shields. 

Laser safety goggles. 

Fire fighting PPE (helmet, gloves, boots, 

proximity suits, full gear). 


jlentini on PROD1PC65 with RULES3
64354 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

TABLE V–2.—EXAMPLES OF PPE FOR

WHICH EMPLOYER PAYMENT IS REQUIRED—Continued 

[If used to comply with an OSHA standard] 

Hard hat. 

Hearing protection. 

Welding PPE. 

Items used in medical/laboratory settings to 

protect from exposure to infectious agents 

(Aprons, lab coats, goggles, disposable 

gloves, shoe covers, etc). 

Non-specialty gloves: 

• Payment is required if they are PPE, 

i.e. for protection from dermatitis, severe cuts/abrasions. 

• Payment is not required if they are 

only for keeping clean or for cold 

weather (with no safety or health consideration). 

Rubber sleeves. 

Aluminized gloves. 

Chemical resistant gloves/aprons/clothing. 

Barrier creams (unless used solely for weather-related protection). 

Rubber insulating gloves. 

Mesh cut proof gloves, mesh or leather 

aprons. 

SCBA, atmosphere-supplying respirators (escape only). 

Respiratory protection. 

Fall protection. 

Ladder safety device belts. 

Climbing ensembles used by linemen (e.g., 

belts and climbing hooks). 

Window cleaners safety straps. 

Personal flotation devices (life jacket). 

Encapsulating chemical protective suits. 

Reflective work vests. 

Bump caps. 

D. Replacement PPE 

Replacing PPE that is no longer 

functional is crucial to employee safety 

and health. OSHA finds that timely 

replacement of PPE is more likely to 

occur when the employer is responsible 

for bearing the cost. OSHA is requiring 

employers to not only pay for the initial 

issuance of PPE, but also its 

replacement, except when the employee 

has lost or intentionally damaged the 

PPE. 

In the proposed rule, OSHA did not 

include language in the regulatory text 

setting forth an employer’s obligation to 

pay for replacement PPE. However, in 

the preamble to the proposal OSHA 

stated: 

OSHA intends to require employers to pay 

for the initial issue of PPE and for 

replacement PPE that must be replaced due 

to normal wear and tear or occasional loss. 

Only in the rare case involving an employee 

who regularly fails to bring employersupplied PPE to the job-site, or who regularly 

loses the equipment, would the employer be 

permitted to require the employee to pay for 

replacement PPE (64 FR 15414). 

OSHA also noted that if an employee 

misuses or damages the PPE, the 

employer may ask the employee to pay 

for replacement: 

The proposed requirement would also 

make the employer responsible to provide, 

and pay for, replacement PPE when the 

original PPE wears out from normal wear and 

tear or in the event of occasional loss or 

accidental damage by the employee. 

However, if an employee regularly and with 

unreasonable frequency loses or damages the 

PPE, the employer may request that the 

employee pay for the replacement PPE (64 FR 

15415). 

In these discussions, OSHA attempted 

to set the parameters for when the 

employer would be responsible for 

paying for replacement PPE (e.g., when 

the PPE wears out from ‘‘normal wear 

and tear,’’ ‘‘occasional loss,’’ etc.) and 

when the employer may request that the 

employee pay for the replacement (e.g., 

‘‘[r]egularly and with unreasonable 

frequency loses or damages the PPE’’). 

This position was also consistent with 

the past positions OSHA has taken on 

the issue of employer payment for 

replacement PPE. For example, OSHA 

determined that the employer must bear 

the cost of replacing worn out hearing 

protectors required under the 

occupational noise exposure standard, 

29 CFR 1910.95, but stated its belief that 

employers should not have to pay for an 

unlimited supply of protectors or bear 

the expense in cases where an employee 

has been irresponsible (46 FR 4078, 

4153–4154 (Jan. 16, 1981)). 

While many commenters supported a 

general requirement that employers pay 

for replacement PPE (See, e.g., Exs. 12: 

9, 51, 110, 113, 116, 134, 141, 152, 188, 

190, 222, 230, 233; Tr. 326, 376, 600, 

631), there were two major issues raised 

by commenters regarding OSHA’s 

position in the proposal. First, a 

substantial number of comments in the 

rulemaking record suggested that the 

proposed rule did not clearly set forth 

an employer’s obligation to pay for 

replacement PPE. Many commenters 

urged the Agency to more clearly define 

those instances where an employer must 

pay for replacement PPE and those 

instances where it would be appropriate 

for employees to pay for the PPE. 

Several commenters suggested OSHA 

include specific regulatory language to 

address replacement PPE to clarify these 

issues, rather than simply dealing with 

the issue in the preamble (See, e.g., Exs. 

12: 3, 58, 188, 212; 46: 43). Second, 

commenters were concerned that 

OSHA’s rule would prevent them from 

enforcing legitimate workplace rules 

regarding employee misuse and damage 

to PPE. OSHA addresses these issues 

below. OSHA also addresses comments 

in the record questioning acceptable 

replacement schedules and allowances. 

1. Clarity 

Several commenters raised issues 

about the clarity of OSHA’s position in 

the proposed rule on replacement PPE. 

The majority of the comments on the 

issue of employer payment for 

replacement PPE asked OSHA to clarify 

its statements in the proposal as to 

when employers would and would not 

be required to pay for replacement PPE. 

The comments received included a 

number from employers who expressed 

concern that they would be paying for 

an endless stream of PPE. These 

commenters noted the uncertainty of 

determining the meaning of ‘‘normal 

wear and tear’’ and ‘‘occasional loss’’ in 

the context of the wide variety of PPE 

that is required and used in various 

industries. 

A number of commenters suggested 

that OSHA should strictly define 

‘‘regular loss’’ or ‘‘occasional loss’’ that 

were used in the preamble to the 

proposal, in the final rule by specifying 

it as two, three, or four occurrences 

(See, e.g., Exs. 12: 14, 17, 41, 62, 87, 

121, 143, 167, 168, 212, 242). BP-Amoco 

recommended that ‘‘The particulars of 

any case of occasional loss or damage 

are going to be unique to each case, and 

the resolution of who should be 

responsible to pay is best left up to the 

contractual agreement or grievance 

procedures in place between the 

employer and employee group. For 

OSHA to attempt to regulate this issue 

would require OSHA to define what is 

occasional loss and when employee 

conduct becomes negligent—something 

that is not possible or desirable’’ (Ex. 12: 

28). 

The Screenprinting & Graphic 

Imaging Association International 

(SGIA) also questioned the meaning of 

the term ‘‘lost’’: 

For example, an employee is wearing a pair 

of gloves while out on the loading dock as 

a shipment of ink is delivered. As the 

employee reaches for the load coming from 

the truck, one glove is pulled from the 

employee’s hand, falls to ground and is 

blown away by the wind and cannot be 

found. In this instance, the PPE was not 

damaged, did not show normal wear and 

tear, yet requires replacement. The employee 

was not negligent, but the PPE is lost, and the 

employer should be responsible to pay for 

the replacement. If the same employee, 

however, were to have placed the gloves 

down on a table, walked off, then came back 

to find them missing, this can be seen as 

neglect and the employee pays for the 

replacement. Although these two examples 

are open for discussion, it shows that each 

worksite needs to make specific policies for 

what will constitute a lost item, and how to 

safe guard against abuse and negligence (Ex. 

12–116, p. 2). 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64355 

Other commenters expressed concern 

about the proposed language addressing 

the duty to replace PPE that has been 

lost or damaged beyond ‘‘normal wear 

and tear.’’ For example, ORC, Inc. 

recommended that: 

How an employer deals with replacement 

of PPE that is lost or damaged by employees 

beyond what would be expected through 

normal wear and tear, should be left to the 

employer’s discretion’’ (Ex. 12: 222). 

In a comment that was echoed by 

approximately 60 associations of home 

builders, the Ohio Home Builders 

Association stated that: 

The proposed revision to the PPE standard 

does not allow employers much flexibility in 

how they manage safety and health on their 

jobsites. OSHA would require each employer 

to pay for all PPE used by employees with 

very few exceptions. Only in the rare case 

involving an employee who regularly fails to 

bring employer-supplied PPE to the job-site, 

or who regularly loses the equipment, would 

the employer be permitted to require the 

employee to pay for replacement PPE. How 

are we to define ‘‘regularly’’ in these 

scenarios? (Ex. 12–34). 

Furthermore, a large number of 

commenters recommended OSHA 

include regulatory language in the final 

rule to clearly articulate when an 

employer could require the employee to 

replace the PPE at his or her own cost 

(See, e.g., Exs. 12: 3, 21, 51, 58, 68, 79, 

99, 101, 217; 46: 43). 

OSHA has carefully considered these 

comments and has made changes to the 

approach in the proposed rule. First, 

OSHA has added new regulatory text to 

address specifically an employer’s 

obligation to pay for replacement PPE. 

OSHA believes that because the issue of 

replacement PPE was not included in 

the regulatory text of the proposed rule, 

there was confusion amongst employers 

as to their precise obligations. By 

including replacement language in the 

regulatory text, OSHA believes that the 

rule will be clearer for employers and 

employees. 

Second, in formulating the regulatory 

text, OSHA determined that using 

‘‘normal wear and tear’’ as a benchmark 

was unhelpful, given the wide variety of 

PPE covered by the rule and the wide 

variety of uses for the PPE. OSHA was 

concerned that relying on ‘‘normal wear 

and tear’’ could result in employers not 

providing required replacement PPE at 

no cost to employees. Furthermore, 

OSHA determined that the term 

‘‘occasional loss’’ was vague and could 

be subject to varying interpretations. 

OSHA thus determined that the rule 

would not rely on these terms, but 

would specify when employers are not 

required to bear the cost of replacement 

PPE. Thus, the rule requires employers 

to pay for replacement PPE, following 

the criteria in OSHA’s existing 

standards governing when PPE must be 

replaced, except when the employee 

loses or intentionally damages the PPE. 

By excepting employer payment for 

all ‘‘lost’’ PPE, OSHA hopes to avoid the 

confusion caused by using the terms 

‘‘occasional loss’’ in the proposal. 

‘‘Occasional loss’’ lacks reasonable 

precision given the universe of 

circumstances in which a wide variety 

of PPE may be lost either at work or off 

of the worksite. For these reasons, this 

rule does not require employers to bear 

the cost of replacing PPE that the 

employee has lost, even if it is a single 

instance. In addition, the PPE may be 

considered ‘‘lost’’ if the employee comes 

to work without the PPE that has been 

issued to him or her. 

The employer is free to develop and 

implement workplace rules to ensure 

that employees have and use the PPE 

the employer has provided at no cost. 

For example, an employer may require 

employees to keep their PPE in a 

secured locker, or turn in the PPE at the 

end of the shift. Alternatively, 

employers may enter an agreement with 

the employee allowing the employee to 

take the PPE that the employer has 

provided at no cost to the employee off 

of the job site to use at home or for other 

employers. The agreement may stipulate 

that the employee is responsible for any 

loss of the PPE while it is off of the job 

site. The rule does not prohibit an 

employer from exercising his or her 

discretion to charge an employee for 

replacement PPE when the employee 

fails to bring the PPE back to the 

workplace. 

Furthermore, by setting forth in the 

regulatory text that employers can ask 

employees to pay for replacement PPE 

needed as a result of an employee 

intentionally damaging PPE, OSHA is 

addressing the concerns of many 

commenters that the proposed rule 

would have required employers to pay 

for replacement PPE damaged due to 

employee misconduct (See, e.g., Exs. 12: 

21, 44, 58, 68, 79, 101, 152, 154, 165, 

172, 182, 203, 210, 212, 228; Tr. 154, 

549; 46: 23). OSHA wants to make clear, 

however, that the exception only 

applies when the damage was 

intentional. Accidental damage of the 

PPE by the employee does not qualify 

for the exception. 

Finally, OSHA emphasizes that the 

final rule only requires the employer to 

pay for PPE that is used to comply with 

the Parts that the rule amends. 

Employers are not required to pay to 

replace PPE that is not used to comply 

with those Parts. Therefore, if the 

employer is not required to pay for the 

initial issue of PPE, the employer is not 

required to pay for the replacement of 

that PPE. However, if the working 

conditions have changed such that the 

PPE the employee had provided at his 

or her cost is now required under OSHA 

requirements, then the employer is 

required to pay for the replacement PPE 

it will have its employees use to comply 

with those requirements. When the PPE 

the employee already owns is adequate 

in these circumstances, the employee 

volunteers to use the PPE, and the 

employer allows the employee to use it 

in place of the PPE the employer must 

now provide, then the employer is not 

required to reimburse the employee. 

This is the same exception provided in 

the regulatory provision addressing 

employee-owned PPE. Similarly, as far 

as PPE that an employee has provided 

at his or her own cost, once that PPE is 

no longer adequate, the employer must 

pay for PPE that is required to comply 

with the rule, unless the employee 

voluntarily decides to provide and pay 

for his or her own replacement PPE 

(which may occur if the employee wants 

personalized or upgraded PPE). As with 

PPE owned by a newly hired employee, 

the employer is prohibited from 

requiring employees to provide their 

own PPE. The same replacement issues 

may arise if an employee no longer 

volunteers his or her own PPE for 

workplace use, and the same policies 

apply. 

2. Disciplinary Policies 

Commenters were also concerned that 

OSHA’s rule would prevent them from 

effectuating their reasonable 

disciplinary policies and infringe upon 

legitimate management practices to 

enforce safety and health rules at the 

worksite. Some commenters argued that 

without employer disciplinary 

programs, abuse would occur (See, e.g., 

Ex 12: 49), and stated that there were no 

provisions that would allow employers 

to enforce employee accountability (See, 

e.g., Exs. 12: 31, 34, 68, 95, 167, 172, 

212). As ORC, Inc. stated: 

How the employer chooses to deal with 

situations where an employee has lost or 

caused damage to required PPE should 

remain the decision of the employer. The 

situation is analogous to that confronting an 

employer when an employee fails to follow 

other safety and health requirements. There 

are a number of ways to deal with the 

problem, depending on the particular 

workplace, circumstances surrounding the 

particular incident, and the particular 

employee involved. It is up to the employer 

to determine what works best in his or her 

establishment (Ex. 12:222). 

OSHA does not believe this rule 

would have that effect and certainly did 


jlentini on PROD1PC65 with RULES3
64356 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

not intend this rule to have that effect. 

Therefore, OSHA wishes to emphasize 

that the rule does not prohibit 

employers from fairly and uniformly 

enforcing work rules within the context 

of a system of reasonable and 

appropriate disciplinary measures to 

ensure compliance with this rule. OSHA 

recommends that employers use 

employee disciplinary programs as part 

of their overall effort to comply with 

OSHA standards and establish effective 

workplace safety and health programs. 

This is therefore also the case when 

employers are providing PPE to their 

employees to protect them from 

workplace injury and illness. As the 

Society of Human Resource 

Management (SHRM) stated: ‘‘An 

employer has both the right and the 

obligation (under the OSH Act) to use 

disciplinary procedures to ensure 

compliance with safety and health 

requirements’’ (Ex. 46: 43, p. 9). 

One aspect of ‘‘reasonable and 

appropriate’’ disciplinary measures is 

whether they are proportionate to the 

employee offense. For example, docking 

an employee’s pay $100 for losing a $10 

reflective vest would not be allowed as, 

the penalty is unreasonably 

disproportionate to the cost of the PPE. 

Likewise, requiring an employee to 

repay the full cost of a lost PPE item 

within days of its expected replacement 

date is not a fair policy and would not 

be allowed. Disciplinary systems must 

be implemented consistently for all 

employees, regardless of rank or role. 

Disciplinary systems that circumvent 

the PPE payment requirements and shift 

payment to employees when the PPE is 

not lost or intentionally damaged will 

be considered a violation of the 

standard. Finally, employers must take 

precautions to assure that disciplinary 

systems are not administered in a 

manner that infringes upon an 

employee’s rights under the OSH Act. 

The use of disciplinary systems is also 

recognized by employees as a valid 

means for dealing with PPE loss and 

abuse issues. In discussing situations 

where employers require that employees 

pay for lost equipment, Jacqueline 

Nowell, representing the UFCW, stated 

that management has full run of the 

plant and is permitted and capable of 

coming up with disciplinary policies 

(Tr. 216). Similarly, George Macaluso of 

the Laborer’s Health and Safety Fund 

stated ‘‘If an employer has a problem 

with a particular worker repeatedly 

losing or damaging equipment, that’s a 

management or disciplinary issue, not a 

matter under OSHA’s jurisdiction’’ (Tr. 

274). Further, Robert Krul of the 

Building Construction Trade 

Department’s (BCTD) Safety and Health 

Committee, in discussing equipment 

abuse by employees, stated that 

management ‘‘[e]ven has the right under 

our collective bargaining agreements in 

the management’s rights clause to instill 

reasonable and fair rules, regulations, 

and disciplines on a job site that govern 

use of such equipment.’’ Mr. Krul 

related an incident involving the blatant 

abuse of fall protection equipment: 

Now there is the odd case of, you know, 

somebody used as it was in the case of 

Roberts Roofing where an employee was seen 

using a safety harness to tow a pick up truck. 

Well, good Lord. I mean, you’re the owner of 

the company and you see somebody abusing 

a piece of safety equipment like that. I’d 

either fire the guy or make sure he got his 

first notice of disciplinary action. What 

difference does it make if it’s PPE or if it’s 

one of his expensive tools on the job? If it’s 

abuse of company property, it’s abuse of 

company property. And that goes to the heart 

of reasonable, fair discipline, rules and 

regulations (Tr. 315–316). 

OSHA has always encouraged 

employers to exercise control over the 

conditions at their workplace. OSHA 

also notes, as discussed in the preamble 

to the bloodborne pathogens standard, 

that disciplinary programs are not the 

only alternative employers can use to 

encourage employees to follow their 

PPE policies. Positive reinforcement 

approaches, the individual employee’s 

performance evaluation, or increased 

education efforts, can also be used by 

employers to improve compliance and 

reduce employee misconduct (56 FR 

64129). 

OSHA sets forth much of its policy for 

evaluating the effectiveness of 

employers’ safety and health programs 

in its Voluntary Protection Programs, or 

VPP. In 1989, OSHA issued voluntary 

guidelines for safety and health 

programs. In several sections of the 

Federal Register notice (54 FR 3904–

3916) announcing the guidelines, OSHA 

stressed the need for effective, fair 

disciplinary programs. For example, 

OSHA stated that: 

When safe work procedures are the means 

of protection, ensuring that they are followed 

becomes critical. Ensuring safe work 

practices involves discipline in both a 

positive sense and a corrective sense. Every 

component of effective safety and health 

management is designed to create a 

disciplined environment in which all 

personnel act on the basis that worker safety 

and health protection is a fundamental value 

of the organization. Such an environment 

depends on the credibility of management’s 

involvement in safety and health matters, 

inclusion of employees in decisions which 

affect their safety and health, rigorous 

worksite analysis to identify hazards and 

potential hazards, stringent prevention and 

control measures, and thorough training. In 

such an environment, all personnel will 

understand the hazards to which they are 

exposed, why the hazards pose a threat, and 

how to protect themselves and others from 

the hazards. Training for the purpose is 

reinforced by encouragement of attempts to 

work safely and by positive recognition of 

safe behavior. 

If, in such a context, an employee, 

supervisor, or manager fails to follow a safe 

procedure, it is advisable not only to stop the 

unsafe action but also to determine whether 

some condition of the work has made it 

difficult to follow the procedure or whether 

some management system has failed to 

communicate the danger of the action and 

the means for avoiding it. If the unsafe action 

was not based on an external condition or a 

lack of understanding, or if, after such 

external condition or lack of understanding 

has been corrected, the person repeats the 

action, it is essential that corrective 

discipline be applied. To allow an unsafe 

action to continue not only continues to 

endanger the actor and perhaps others; it also 

undermines the positive discipline of the 

entire safety and health program. To be 

effective, corrective discipline must be 

applied consistently to all, regardless of role 

or rank; but it must be applied. 

In 2000, OSHA issued revisions to the 

Voluntary Protection Programs (64 FR 

45649–45663), which included the 

following element of an effective safety 

and health program: 

c. Hazard Prevention and Control. Site 

hazards identified during the hazard analysis 

process must be eliminated or controlled by 

developing and implementing the systems 

discussed at (2) below and by using the 

hierarchy provided at (3) below. 

(1) The hazard controls a site chooses to 

use must be: 

(a) Understood and followed by all affected 

parties; 

(b) Appropriate to the hazards of the site; 

(c) Equitably enforced through a clearly 

communicated written disciplinary system 

that includes procedures for disciplinary 

action or reorientation of managers, 

supervisors, and non-supervisory employees 

who break or disregard safety rules, safe work 

practices, proper materials handling, or 

emergency procedures * * * [sections (2) 

and (3) include information on hazard 

control systems and the hierarchy of 

controls]. 

Further, the VPP policies and 

procedures manual (CSP 03–01–002 03/ 

25/2003) advises the OSHA team 

reviewing a VPP applicant’s safety and 

health program that: 

A documented disciplinary system must be 

in place. The system must include 

enforcement of appropriate action for 

violations of the safety and health policies, 

procedures, and rules. The disciplinary 

policy must be clearly communicated and 

equitably enforced to employees and 

management. The disciplinary system for 

safety and health can be a sub-part of an allencompassing disciplinary system. 

Thus, employers that do not have 

reasonable and appropriate safety and 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64357 

health disciplinary systems are denied 

entry into the VPP program. As these 

longstanding policies display, OSHA 

not only allows employers to have 

disciplinary programs, the Agency 

encourages employers to have such 

programs and to manage them in a 

manner that supports occupational 

safety and health objectives. 

OSHA has emphasized through its 

enforcement policies that employers 

must exercise control over the working 

conditions at their workplace. OSHA’s 

Field Inspection Reference Manual 

(FIRM) CPL 2.103 (Sept. 26, 1994) is 

OSHA’s primary reference document 

identifying the Agency’s field office 

inspection responsibilities. It provides 

OSHA’s field staff, including 

Compliance Safety and Health Officers 

(CSHOs) with direction on the Agency’s 

inspection procedures, documentation 

requirements, citation policies, 

abatement verification procedures, and 

other procedures and policies needed to 

implement an effective and consistent 

national enforcement policy while 

providing needed latitude for local 

conditions. 

The FIRM specifically recognizes the 

role of disciplinary programs that 

employers use to ensure that their 

employees follow adequate workplace 

safety and health rules. These programs 

may be used to establish the 

unpreventable employee misconduct 

defense to a citation issued against the 

employer for conditions violative of the 

OSH Act (CPL 2.103 section 7 ch. III 

C.8.c.1.). 

The Firm explains that 

‘‘unpreventable employee misconduct’’

is an ‘‘affirmative defense,’’ which is 

defined as ‘‘any matter which, if 

established by the employer, will excuse 

the employer from a violation which has 

otherwise been proved by the CSHO.’’

In other words, if the employer can 

prove each and every element of an 

affirmative defense to OSHA, the 

Agency may decide that a citation is not 

warranted. The elements of this defense, 

as set forth by the Review Commission 

and the courts, are that the condition 

that violated an OSHA standard was 

also a violation of the employer’s own 

work rule, that the violation would not 

have occurred if the employee had 

obeyed the employer’s work rule, that 

the employer’s work rule was effectively 

communicated to the employee, and the 

employer’s work rule was uniformly 

enforced by the employer. OSHA 

believes that an important aspect of 

exercising control over the workplace is 

the effective training and supervision of 

employees. 

3. Replacement Schedules and 

Allowances 

Several commenters raised issues 

related to regular replacement schedules 

and allowances used to replace PPE 

(See, e.g., Exs. 12: 153, 188; 46: 43). The 

SHRM recommended that employers be 

allowed to set a pre-determined service 

life for PPE, and limit replacement of 

PPE to situations that involve normal 

wear and tear through a pre-determined 

length of time, stating that: 

Employers that provide PPE should be able 

to develop rules that take into account the 

service life of the PPE. Employers should not 

be required to pay for PPE and all 

replacements, regardless of whether service 

life has been met. Misuse and neglect will 

greatly shorten the service life of any PPE. 

Employers often pay for PPE and HR [human 

resources] professionals should be allowed to 

require employees to pay for their own 

replacement if such a replacement is needed 

prior to expiration of the equipment’s service 

life. The purpose of such an approach would 

be to provide an incentive for employees to 

take better care of their equipment (Ex. 46: 

43, p. 10). 

In a similar comment, the Sheet Metal 

and Air Conditioning Contractors 

National Association suggested inserting 

language requiring employees to pay for 

replacement PPE if it has been lost or 

damaged ‘‘[b]efore it has been used for 

its minimum anticipated use period, as 

determined by the employer and/or 

manufacturer * * *’’ (Tr. 92–93). The 

ISEA stated that: 

It is important that any item of PPE be 

replaced immediately when an inspection 

reveals that it is damaged or no longer meets 

its intended use. Manufacturers provide 

guidelines to assist in making this 

determination. Employers should pay for 

these replacements under the same terms as 

they provide initial issue of PPE. Some 

companies provide an annual PPE benefit to 

employees based on expected use of PPE 

under normal conditions. If this amount is 

exceeded, employees would have to pay for 

replacement only if it is their fault for it 

being lost or damaged. The employer can, of 

course, pay more than this annual amount 

when circumstances warrant. Such a system 

would eliminate abuse of the program (Ex. 

12: 230). 

OSHA does not object to allowances 

as a means of paying for PPE, as long as 

the allowance policy assures that 

employees receive replacement PPE at 

no cost as required by the final rule. As 

several commenters noted, this is a 

common practice, and it appears that in 

many cases it is an effective and 

convenient method for providing PPE at 

no cost to employees. 

Allowance systems are based on the 

expected service life of the PPE. The 

Screenprinting and Graphics Imaging 

Association (SGIA) noted several factors 

involved in service life estimation, 

stating that: 

Each worksite and employer would need to 

include in their PPE assessment, when and 

how PPE will be replaced. The employer 

needs to find what factors are and/or will be 

present at the worksite to cause the normal 

wear and tear and/or immediate damage to 

the PPE specified. Anything outside the 

guidelines of the established factors should 

require the employee to incur the 

replacement costs. However, a periodic 

evaluation of the PPE specified, the PPE 

assessment, and the factors regarding 

replacement, need to be performed in order 

to ensure that a reasonable and appropriate 

system is always in place (Ex. 11: 116). 

OSHA believes that the expected 

service life for any PPE depends on 

several factors, and the manufacturer’s 

recommendation is only one factor. 

OSHA believes other factors, such as the 

working conditions under which the 

PPE is used, the probability of 

workplace incidents damaging the PPE 

or making it otherwise unable to protect 

the employee, misuse, and any other 

conditions relevant to the worksite and 

the use of the PPE are highly relevant. 

OSHA does not object to employers 

considering expected service life in an 

allowance system. However, such 

systems must ensure that replacement 

PPE is provided at no cost to employees. 

In addition, these employers must have 

systems in place to deal with situations 

where PPE is damaged at work (e.g., 

accidents) or lasts for a period shorter 

than the expected service life due to 

conditions other than loss or intentional 

damage. 

Additionally, the Agency wants to be 

clear that the rule would not require 

that the employer provide and pay for 

replacement PPE whenever requested by 

an employee, as was the concern of one 

commenter (Ex. 46: 43, p. 8). If an 

employee requests replacement PPE, the 

employer should evaluate the PPE in 

question to determine if, in its present 

condition, the PPE provides the 

protection it was designed to provide. 

Employees can be charged for 

replacement PPE, but only when the 

PPE is lost or intentionally damaged by 

the employee. 

OSHA notes that some employers 

currently convey ownership of PPE to 

employees, thus allowing employees to 

control the use of the PPE both on and 

off the job. OSHA’s PPE rules require 

employers to ‘‘provide’’ PPE to their 

employees. OSHA does not require 

employers to transfer ownership and 

control over PPE to employees. 

Employers are free to choose that option 

and others if they so desire. For 

example, as pointed out by various 

commenters, the employer is free to 


jlentini on PROD1PC65 with RULES3
64358 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

4Use of the word ‘‘sanitary’’ does not indicate 

that the Agency expects PPE to be maintained at a 

level approaching ‘‘hospital clean.’’ ‘‘Sanitary 

condition’’ simply means that the PPE must be kept 

at a level of cleanliness such that it does not present 

a health hazard to the employee who is using it. 

prohibit employees from taking 

employer-owned PPE away from the 

workplace and can elect to keep the PPE 

in question at the establishment with 

the use of lockers or other storage 

mechanisms (Tr. 203, 274, 312–313, 

337). The employer may also retain 

ownership of the PPE and still allow 

employees to remove it from the 

workplace. 

In summary, OSHA is requiring 

employers to pay for the initial issuance 

of PPE, as well as its replacement, 

except when the employee has lost or 

intentionally damaged the PPE. Adding 

regulatory text addressing the issue of 

payment for replacement PPE makes an 

employer’s obligations clear. The rule 

does not prohibit the employer from 

using policies, such as allowances, to 

fulfill their obligations under the rule, 

so long as the policies assure that 

employees receive replacement PPE at 

no cost as required by the final rule. 

Neither does the rule prevent employers 

from fairly and uniformly enforcing 

work rules to ensure compliance with 

this rule. OSHA emphasizes the need 

for effective, fair disciplinary programs, 

as seen in its Voluntary Protection 

Programs. OSHA also believes that the 

rule is consistent with the duty that 

employers have with regard to working 

conditions because it reserves to them 

the right to control the use and 

maintenance of the PPE that is used at 

their workplace. 

VI. Employee-Owned PPE 

The final PPE rule addresses 

employee-owned PPE in the workplace 

and states that, where an employee 

provides adequate protective equipment 

he or she owns, the employer may allow 

the employee to use it and is not 

required to reimburse the employee for 

it. This is included in the regulatory text 

at § 1910.132(h)(6) for general industry, 

§ 1915.152(f)(6) for shipyard 

employment, § 1917.96(f) for 

longshoring, § 1918.106(f) for marine 

terminals, and § 1926.95(d)(6) for 

construction. The final rule also makes 

clear that employers shall not require 

employees to provide or pay for their 

own PPE, unless specifically excepted 

by the other provisions of the rule. This 

will prevent employers from avoiding 

their obligations under the standard by 

requiring their employees to purchase 

PPE as a condition of employment or 

placement. 

This provision was not specifically 

included in the proposed rule. However, 

OSHA never intended in the proposed 

rule to prevent employees from 

voluntarily using PPE they own, so long 

as the PPE is adequate to protect them 

from hazards. Furthermore, OSHA did 

not intend for employers to have to 

reimburse employees for equipment that 

they voluntarily bring to the worksite 

and wish to use. A number of 

commenters to the proposal questioned 

OSHA’s position regarding equipment 

owned by employees. This addition to 

the final rule is a reaction to these 

comments and clearly sets forth an 

employer’s obligations with respect to 

employee-owned PPE. OSHA explains 

this provision and addresses relevant 

comments below. 

A. Employer Responsibility To Ensure 

‘‘Adequate Protective Equipment’’ 

It is important at the outset to set forth 

an employer’s existing obligations under 

OSHA standards with respect to 

employee-owned PPE. OSHA’s current 

general industry standard states, 

‘‘[w]here employees provide their own 

protective equipment, the employer 

shall be responsible to assure its 

adequacy, including proper 

maintenance, and sanitation of such 

equipment’’ (29 CFR § 1910.132(b)). The 

construction standards contain similar 

language in § 1926.95(b). These 

provisions ensure that all PPE used by 

employees has been evaluated and is 

adequate to protect the employee from 

hazards in the workplace. OSHA will 

not allow employers to escape their 

ongoing responsibility to assure that 

PPE used at their workplace is adequate 

simply because an employee may own 

the protective equipment. If that were 

permitted, employees would receive 

less effective PPE protection. 

To recognize an employer’s 

fundamental obligation to ensure that 

PPE used is adequate to protect affected 

employees, the final PPE payment rule 

refers to the employee providing his or 

her own ‘‘adequate protective 

equipment.’’ OSHA has included this 

phrase to ensure that employee-owned 

PPE is used only where the PPE is 

adequate to protect the employee from 

hazards in the particular workplace 

where it is being used. Furthermore, 

references to §§ 1910.132(b) and 

1926.95(b) remain in the general 

industry and construction standards to 

ensure that when employers allow 

employees to use personally-owned PPE 

at work, the employer evaluates the PPE 

to make sure that it is adequate to 

protect employees, that it is properly 

maintained, and that it is kept in 

sanitary condition.4 While the maritime 

standards in Parts 1915, 1917, and 1918 

do not contain explicit language 

concerning employee-owned PPE as in 

§§ 1910.132(b) and 1926.95(b), the final 

PPE payment rule contains the phrase 

‘‘adequate protective equipment’’ as a 

pre-requisite to use of the employeeowned PPE in the affected maritime 

workplaces. It is the Agency’s position 

that when allowing the use of employeeowned PPE in the maritime setting, the 

employer is still obligated to ensure that 

the PPE used is appropriate and 

adequately protective of employees. 

These obligations are inherent in the 

requirement that the employer 

‘‘provide’’ PPE. Several of the PPE 

provisions in the maritime standards 

also specifically require that employers 

ensure the use of ‘‘appropriate’’ PPE. 

(See, e.g., 29 CFR 1915.152(a) (‘‘The 

employer shall provide and shall ensure 

that each affected employee uses the 

appropriate personal protective 

equipment * * *.’’)) 

B. Employees Who Already Own PPE 

The most common situation where 

employers may encounter employeeowned PPE is when newly hired 

employees report to the worksite with 

their own PPE. The employee may have 

been given the PPE by a former 

employer, may have purchased the PPE 

for a prior job or because of a personal 

preference for certain features or 

aesthetics, may have obtained the PPE 

from a friend or relative who no longer 

needed it, may have obtained PPE while 

in an educational program, or from 

some other source. This occurs in many 

industries but seems to be found more 

frequently in workplaces that use shortterm labor. 

OSHA recognizes that employees who 

change employers frequently may want 

to carry their PPE from job to job. 

Underlying reasons for this can include 

that the employee will be familiar with 

the PPE, will have ‘‘broken it in,’’ and 

especially if the employee purchased 

the PPE, will have the equipment that 

he or she prefers and finds the most 

comfortable and aesthetically pleasing. 

This practice is common in the 

construction, marine terminal, and 

shipyard industries, as well as 

workplaces employing individuals from 

temporary help services. (Application of 

the standard in these industries is 

addressed in more detail in the 

following section.) 

As discussed previously and noted by 

many commenters, in some trades, 

industries, and/or geographic locations, 

PPE for employees who frequently 

change jobs can take on some of the 

qualities of a ‘‘tool of the trade.’’ In 

other words, the PPE is an item that the 

employee traditionally keeps with his or 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64359 

her tool box. This may be because the 

PPE is used while performing some type 

of specialized work, such as welding or 

electrical work, or because it is a 

tradition in the industry, such as in 

home building. OSHA has not included 

an exception to the payment 

requirement for tools of the trade 

because, among other things, of the 

difficulty of defining, with adequate 

precision, when an item of PPE is or is 

not a tool of the trade. However, because 

the rule does not require employers to 

reimburse employees for PPE they 

already own, it recognizes that some 

employees may wish to own their tools 

of the trade and bring that equipment to 

the worksite. 

OSHA has further emphasized in the 

regulatory text that employees are under 

no obligation to provide their own PPE 

by stating that the employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is specifically excepted in the final rule. 

These provisions address the concern 

that employers not circumvent their 

obligations to pay for PPE by making 

employee ownership of the equipment a 

condition of employment or continuing 

employment or a condition for 

placement in a job. OSHA recognizes 

that in certain emergency situations, 

such as response to a natural disaster, 

where immediate action is required, it 

may be necessary for employers to hire 

or select employees already in 

possession of the appropriate PPE. As a 

general matter, however, employers 

must not engage in this practice. Taking 

PPE-ownership into consideration 

during hiring or selection circumvents 

the intent of the PPE standard and 

constitutes a violation of the standard. 

C. Employer Ownership and Control 

Over PPE 

When employers purchase PPE, they 

often retain ownership. In this situation, 

they ‘‘provide’’ the PPE to the employee 

without conveying ownership to the 

employee. This is similar to ‘‘providing’’

an employee a tool to use, a lift truck 

to drive, or a company automobile. 

In some workplaces that follow this 

approach, the PPE is kept in on-site 

lockers or other storage facilities to 

prevent employees from using the PPE 

off the job, to avoid loss or damage to 

the PPE, to prevent contaminants from 

leaving the workplace on or in 

equipment, or simply as a convenience. 

In other workplaces, the employer 

purchases the PPE, retains ownership of 

the equipment, but allows (or even 

requires) the employee to remove the 

PPE from the worksite and return with 

it when it is next needed to protect 

against a hazard. In either case, when 

the employer retains ownership of the 

PPE, the employer has the right to 

control the use of the PPE, just as he or 

she would control any other equipment, 

tools, parts, or facilities that he or she 

owns. 

Some commenters to the rulemaking 

questioned whether employers had the 

right to recover PPE once the employee 

no longer works for the providing 

employer. The NAHB asserted that ‘‘[i]f 

an employer issues equipment that they 

have paid for, then they should expect 

to get it back; if not, the employer must 

be permitted to charge for the 

equipment’’ (Ex 12: 68). A number of 

commenters asked if they could require 

employees to provide a deposit that 

would be returned when the employee 

returned the PPE (See, e.g., Exs. 12: 12, 

44, 68, 140, 153, 154, 165, 203). The 

Associated Building and Contractors, 

Inc. (ABC) stated that: 

[t]here are cases of the short-term employee, 

i.e., the person who is hired, given $150.00 

plus in safety apparel, then decides 

construction is not for him or her and leaves 

the next day. For this reason, the employer 

should be allowed to require a deposit from 

short-term and temporary employees, to be 

refunded when the equipment is returned in 

satisfactory condition (Ex. 12: 153). 

William McGill of the International 

Brotherhood of Electrical Workers 

described one such deposit system 

during his testimony. His bargaining 

unit reached an agreement with the 

company in which the employees put 

down a security deposit for their hard 

hats, and when they leave the company, 

the deposit is refunded when the hard 

hat is returned (Tr. 588–590). 

After considering these comments, 

OSHA recognizes the concern of 

employers and addresses it as follows. 

If the employer retains ownership of the 

PPE, then the employer may require the 

employee to return the PPE upon 

termination of employment. If the 

employee does not return the 

employer’s equipment, nothing in the 

final rule prevents the employer from 

requiring the employee to pay for it or 

take reasonable steps to retrieve the 

PPE, in a manner that does not conflict 

with federal, state or local laws 

concerning such actions. In these 

situations, OSHA notes that the 

employer is not allowed to charge the 

employee for wear and tear to the 

equipment that is related to the work 

performed or workplace conditions. As 

suggested by National Tank Truck 

Carriers, Inc., a written agreement, for 

example, between the employer and 

employee on the matter may be an 

effective method of ensuring that the 

employer’s expectations of the 

employee are clear and unambiguous 

(Ex. 12: 12). Another acceptable 

alternative is a deposit system that 

provides an incentive for employees to 

return the equipment. However, the 

Agency cautions that the deposit system 

must not be administered in a fashion 

that circumvents the rule and results in 

an employee involuntarily paying for 

his or her PPE. 

In some situations, an employer may 

prohibit an employee from using PPE 

that the employer has paid for while 

working for another employer or for 

personal purposes. Conversely, an 

employer may allow an employee to use 

employer-owned PPE while working for 

another employer or for personal 

purposes. Since the employer has 

retained ownership of the PPE, he or she 

can stipulate where it is used. OSHA 

does not object to either of the 

aforementioned practices. 

The VPPPA noted that their member 

firms promote off-the-job safety by 

encouraging employees to use PPE 

while performing personal tasks, when 

the PPE is suitable for such use and the 

employer has given permission (Ex. 12: 

113). OSHA recognizes the benefit of the 

policy articulated by VPPPA. If 

employees utilize PPE consistently at 

work and at home, its use is likely to 

become more natural, or ‘‘second 

nature’’ to the employee, and PPE 

compliance at work may be improved. 

Another means of improving 

compliance is for employers to develop 

clear policies for PPE, i.e., specific 

procedures for use, maintenance, 

storage, and so forth. The employer 

should communicate these policies 

clearly to employees, ensuring that they 

are understood and followed. A 

reasonable approach to conveying this 

information would be to include 

training material covering these topics 

when conducting the mandatory PPE 

training. 

While OSHA anticipates that most 

PPE will be purchased by and remain 

the property of the employer, OSHA 

foresees some employers conveying 

ownership of the PPE to their 

employees. Many commenters argued 

that employees take better care of PPE 

that they actually own (See, e.g., Exs. 

12: 112, 154, Tr. 547, 679). While 

employers are required to pay for PPE, 

OSHA does not object to employers 

transferring ownership of the equipment 

to employees. 

D. Upgraded and Personalized PPE 

In some workplaces, an employer may 

allow an employee to ‘‘upgrade’’ or 

personalize their PPE, thereby obtaining 

PPE beyond what the employer is 

required to purchase. Issue seven of the 

proposal addressed this situation, i.e., 


jlentini on PROD1PC65 with RULES3
64360 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

5OSHA does not require employers to keep 

records of employees’ requests to use their own 

PPE. OSHA believes that if information about such 

requests is needed by the Agency, its inspectors can 

gather such information through interviews and 

other standard investigative procedures. 

an employee who prefers more costly 

PPE than that provided by the employer. 

The proposal asked, ‘‘If an employee 

wants to use more costly PPE because of 

individual preference, should that 

employee be responsible for any 

difference in cost? Is there evidence that 

such ‘‘individualized’’ PPE has caused 

safety problems in the past?’’ (64 FR 

15416). 

OSHA received many comments on 

this issue. Several commenters stated 

that if an employee wants more 

expensive equipment, they should pay 

for the difference in costs (See, e.g., Exs. 

12: 17, 50, 52, 68, 99, 107, 145, 152, 172, 

188, 201, 217, 228, 230). Some 

commenters argued that if employees 

want more costly PPE than that which 

the employer is providing, they should 

be responsible for the entire cost of the 

PPE (See, e.g., Exs. 12: 65, 79, 107, 110, 

114, 150). Other commenters argued 

that employers should pay for PPE 

which the employee prefers, so 

employees will have PPE that fits better, 

is more comfortable, and is more likely 

to be used (See, e.g., Ex. 12: 134, 218). 

Some thought that the purchase of 

upgraded or more costly PPE should be 

at the discretion of the employer (See, 

e.g., Exs. 12: 3, 114, 183), or 

alternatively that employees may 

upgrade their PPE, but the employer 

need not allow the use of that PPE at the 

workplace (Ex. 12: 183). Some argued 

that individual preference does not 

justify an OSHA rulemaking effort but is 

better left to employer and employee 

mutual agreement (See, e.g., Exs. 12: 

144, 190). The International 

Brotherhood of Teamsters (IBT) 

suggested that: 

A worker’s request for more expensive 

PPE, to replace an ill-fitting PPE or one made 

of material that a worker may be allergic to, 

should be judged on safety and health 

grounds, not on an aesthetic basis. To the 

extent that an employee’s preference is 

consistent with these OSHA requirements, 

the employer should accommodate any 

added cost. Outside this domain, the matter 

of payment for more costly PPE of 

employee’s choice should rest on union 

agreements (Ex. 12: 190). 

The American Association of Airport 

Executives recommended that ‘‘[a]n 

employer should not be responsible for 

the additional cost resulting from an 

employee’s preference for a costly, but 

no more effective PPE product. If 

employees want more expensive PPE, 

they should either pay for it or obtain 

it through collective bargaining’’ (Ex. 12: 

217). 

OSHA agrees that it needs to clearly 

set forth an employer’s obligation with 

respect to upgraded or personalized 

PPE. First, the language that OSHA has 

included in the final standard to address 

PPE owned by employees applies 

equally to upgraded or personalized PPE 

purchased by employees. When an 

employee owns a certain type of 

upgraded PPE and wishes to use it on 

the jobsite rather than using the PPE 

provided by the employer, the employer 

is not required to reimburse the 

employee for that PPE, pursuant to the 

employee-owned exception discussed 

above. 

Second, OSHA clarifies that an 

employer is not required to pay for 

upgraded or personalized PPE requested 

by an employee, provided the employer 

provides adequate ‘‘basic’’ PPE to the 

employee. Under the current standards, 

employers must provide PPE that 

protects against hazards in the 

workplace. Allowing the use of other 

PPE that the employee may prefer or 

that provides features beyond those 

necessary for employee protection from 

workplace hazards remains at the 

discretion of the employer. If an 

employee requests some specialized 

PPE in place of the PPE provided by the 

employer,5 the employer may allow the 

employee to acquire and use the PPE, 

but the employer is not required to pay 

for it. If the employer allows upgrades 

or personalized PPE, he or she is still 

required to evaluate the PPE to make 

sure that it is adequate to protect the 

employees from the hazards in the 

particular workplace, is properly 

maintained, and is kept in a sanitary 

condition. As stated by the SGIA: 

Allowing employees to provide their own 

PPE can be an acceptable practice as long as 

the employees are provided the PPE 

assessment for their workplace and the 

minimum guidelines for the selection of the 

PPE * * * A potential problem arises when 

no standards are set and no system is in place 

accounting for employee vs. employer PPE, 

in that reimbursement claims for PPE often 

lead to disputes between employee and 

employer (Ex. 12: 116). 

SGIA’s comment raises an important 

point about setting standards. 

Employers are encouraged to set specific 

policies for PPE upgrades and 

employee-preferred PPE and to 

communicate these policies clearly to 

employees, in order to minimize 

disputes. 

Third, if an employer uses an 

allowance system to provide and pay for 

PPE, he or she is only required to 

provide to the employee the amount of 

money required to purchase ‘‘basic’’

PPE that protects against hazards in the 

workplace. If the employer allows 

employees to take the allowance and 

use it toward the purchase of 

acceptable, but upgraded or 

personalized PPE, that is permissible 

under the final rule. In this instance, 

OSHA stresses that the employer is only 

responsible for the cost of the ‘‘basic’’

PPE. 

Another issue related to upgrading 

and personalizing PPE is allowing 

employees to choose PPE from an array 

of equipment. The VPPPA suggested 

that OSHA require employers to provide 

an adequate selection of appropriate 

PPE, so each employee will find 

equipment that is comfortable, 

functional, and sized appropriately (Ex. 

12: 113). While ORC agreed that the 

arrangements for paying for more 

expensive PPE should remain the 

decision of the employer, they also 

noted that ‘‘[e]xperienced employers are 

* * * aware that, where possible, it is 

desirable to offer employees an 

opportunity to select from an array of 

equally-effective PPE types. This not 

only helps to ensure that an employee 

is issued PPE that is both effective and 

comfortable, but encourages acceptance 

and use of the PPE by that employee’’

(Ex. 12: 222). Corrado & Sons, Inc. noted 

that they have a safety committee which 

allows the employees to select PPE that 

is the safest and most comfortable to use 

(Ex. 12: 48). 

OSHA agrees that providing a 

selection of PPE is a good practice 

which may improve employee 

acceptance and use of the equipment. 

Employers are encouraged to consider 

offering a selection of PPE to their 

employees as a ‘‘best practice’’ that will 

help to improve the effectiveness of 

their safety and health programs. In fact, 

OSHA’s respirator and noise standards 

require employers to provide a selection 

of equipment from which employees 

may choose (See § 1910.95(i)(3) and 

§ 1910.134(d)(1)(iv)). Most of OSHA’s 

standards, however, do not contain this 

type of requirement. Instead, most 

OSHA standards generally require that 

the PPE fit the employee properly (See, 

e.g., § 1910.132(d)(iii), § 1915.152(b)(3), 

and § 1926.102(a)(6)(iii)). 

OSHA is not requiring employers to 

provide a selection of PPE from which 

employees may choose their equipment 

beyond the existing requirements in the 

respirator and noise standards, because 

that action is beyond the scope of this 

rulemaking. Where an employer is not 

required to offer a selection of 

equipment, the PPE provided must 

nonetheless be properly suited to 

protect against the hazards of the 

workplace and must fit the employee. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64361 

6Some employees in agriculture are covered by 

two general industry standards, the logging 

standard (29 CFR 1910.226) and the cadmium 

standare (29 CFR 1910.1027), which specifically 

require employers to pay for required PPE. (the 

Logging boots specified in § 1910.266(d) (l)(v), are 

exempted from the requirements of this standard). 

The PPE requirements in these two standards will 

continue to apply in agriculture. 

7The statute defines ‘‘employee’’ as ‘‘an 

employee of an employer who is employed in a 

business of his employer which affects interstate 

commerce’’ (29 U.S.C. 652(6)). The term 

‘‘employer’’ means ‘‘a person engaged in a business 

affecting interstate commerce who has employees’’

(29 U.S.C. 652(5)). The term ‘‘person’’ includes 

‘‘one or more individuals, partnerships, 

associations, corporations, business trusts, legal 

representatives, or any organized group of persons’’

(29 U.S.C. 652 (4)). 

8The preamble to the 29 CFR Part 1904 injury 

and illness recording and reporting regulation 

Continued 

Ill-fitting PPE may not serve its intended 

purpose and could put the employee at 

risk of injury, illness, or death. 

Accordingly, employers are urged to 

review the PPE manufacturer’s 

instructions, which often provide 

additional information regarding 

appropriate selection and fit of PPE. 

Some commenters noted that they 

were not aware of any problems with 

substandard PPE or safety problems 

from individualized PPE (See, e.g., Exs. 

12: 9, 17, 52, 68, 233). Other 

commenters worried that allowing 

employees to select their own upgraded 

or personalized PPE could cause 

problems (See, e.g., Exs. 12: 32, 113, 

116; Tr. 593, Tr. 178, Tr. 371). The 

AAOHN observed that: 

Allowing individual preference for PPE 

could create safety problems if the minimal 

requirements for PPE are not clearly stated. 

One [AAOHN] member reported a situation 

where a manufacturing facility allowed 

individual preference for safety eyewear and 

found that 70 percent of the female 

employees wore glasses without safety 

lenses. At a very minimum any PPE to be 

used must be approved by the employer. 

More significantly, allowing individual 

preference for PPE may pose administrative 

and enforcement problems for employers. 

Allowing individual preference for PPE may 

make training and compliance more 

complicated for employers (Ex. 12: 32). 

Similarly, the VPPPA noted that 

employee-owned equipment can be less 

protective, noting that ‘‘PPE selection 

can be a very technical task. Safety and 

health staff often review extensive data 

and varieties of equipment options 

before making their selection. In certain 

cases, employees may waive 

functionality in lieu of cost, comfort and 

style. PPE selection must begin with the 

hazard assessment and the resulting 

data used to identify the PPE best 

designed for worker protection’’ (Ex. 12: 

113). 

It is the Agency’s position that 

upgraded and personalized PPE will not 

provide less protection as long as 

employers meet their obligation to 

perform a hazard assessment and ensure 

the PPE’s adequacy, including proper 

maintenance, and sanitation of such 

equipment. To facilitate the selection of 

appropriate PPE, employers are 

encouraged to set clear guidelines and 

policies regarding PPE and to 

communicate these standards to 

employees. 

VII. Industries and Employees Affected 

by the Standard 

The final rule incorporates PPE 

payment provisions into the OSHA 

standards applicable to general industry 

(29 CFR part 1910), construction (29 

CFR part 1926), shipyards (29 CFR part 

1915), longshoring (29 CFR part 1917), 

and marine terminals (29 CFR part 

1918).6

OSHA’s proposal included specific 

questions about how to apply the PPE 

payment standards in these industries 

(61 FR 15416). Many commenters raised 

additional questions about how the 

standard would apply to independent 

contractors, subcontractors, and 

employees obtained through temporary 

help services. Caterpillar Inc. 

commented that ‘‘Employment 

relationships are becoming more 

complex, and OSHA must recognize the 

variety of relationships which are now 

common in industry’’ (Ex. 12: 66, p. 4). 

ORC commented: 

‘‘[e]mployers are more likely to provide 

protective equipment, including personal 

protective equipment, for any employee with 

whom they have a traditional employment 

relationship. The issue of responsibility for 

payment becomes more problematic, 

however, when contract work, temporary 

employees, and clothing that is subject to 

both work and personal use are involved (Ex. 

12: 222, p. 2). 

OSHA agrees with commenters that a 

number of nontraditional employment 

relationships exist in today’s 

workplaces. This section will address 

these relationships and the more 

common employment scenarios raised 

by commenters. However, OSHA wishes 

to emphasize the fundamental 

application of the final rule: It applies 

in the industries above to any employer 

with an employee regardless of whether 

the employee is full-time, part-time, 

temporary, short-term, or working under 

any other type of arrangement that 

results in an employer-employee 

relationship under the OSH Act. 

A. OSH Act Definition of Employee 

Implementing the PPE payment 

requirements, as with any of OSHA’s 

regulations and standards, begins with 

the identification of an employer and an 

employee as defined by the OSH Act.7

Whether an employer-employee 

relationship exists under the Act is 

determined in accordance with 

established common law principles of 

agency. It is important to note that the 

employer-employee relationship for 

purposes of complying with this final 

rule is to be analyzed no differently than 

it is for any other OSHA standard. 

The criteria for determining the 

existence of an employer-employee 

relationship in common law are 

discussed in Nationwide Mutual 

Insurance Company v. Darden, 503 U.S. 

318, 112 S. Ct. 1344, 117 L. Ed. 2d 581 

(1992) and Community for Creative 

Non-Violence v. Reid, 490 U.S. 730, 109 

S. Ct. 2166 (1989). The cases held that 

the following criteria are to be 

considered in determining whether 

there is an employer-employee 

relationship. 

1. The right to control the manner and 

means by which work is accomplished. 

2. The level of skill required to 

perform effectively. 

3. Source of required instruments and 

tools. 

4. Location of work. 

5. Duration of relationship between 

parties. 

6. The right of the employer to assign 

new projects to the individual. 

7. The extent of the individual’s 

control over when and how long to 

work. 

8. Method of payment. 

9. The individual’s role in hiring and 

paying assistants. 

10. Whether work is the regular 

business of the employer. 

11. Whether the employer is in 

business. 

12. The provision of employee 

benefits. 

13. The tax treatment of the 

individual. 

The nature and degree of control 

asserted by the hiring party over the 

means and methods of how the work is 

to be performed remains a principal 

guidepost. Clackamas Gastroenterology 

Assocs. P.C. v. Wells, 123 S. Ct. 1673, 

1679 (2003). OSHA instructs its safety 

and health inspectors ‘‘Whether or not 

exposed persons are employees of an 

employer depends on several factors, 

the most important of which is who 

controls the manner in which the 

employees perform their assigned work. 

The question of who pays these 

employees may not be the determining 

factor.’’ (OSHA Field Inspection 

Reference Manual CPL 2.103, Section 

7—Chapter III. Inspection 

Documentation).8


jlentini on PROD1PC65 with RULES3
64362 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

issued in 2001 addressed a number of these issues 

(66 FR 5916 6135). To ensure accurate recording 

and reporting, OSHA directed, that the employer 

record on the OSHA 300 Log the recordable injuries 

and illnesses of all employees on their payroll, 

whether they are hourly, salary, part-time, seasonal 

or migrant employees. OSHA also directed the 

employer to record the recordable injuries and 

illnesses that occur to employees who are not on 

their payroll if the employer supervises these 

employees on a day-to-day basis. Thus if an 

employer obtains employees from a temporary help 

service, employee leasing service, or personnel 

supply service, the employer must record these 

injuries and illnesses if the employer supervises 

these employees on a day-to-day basis. 

Thus, employers must examine 

whether the employment relationships 

they have make them ‘‘employers’’ of 

‘‘employees’’ under the Act. If they are, 

they must ensure that PPE is provided 

to their employees at no cost, unless 

specifically excepted in the final rule. 

B. Self-Employed Independent 

Contractors 

A truly self-employed ‘‘independent 

contractor,’’ is not an ‘‘employee’’ under 

the OSH Act and is not provided the 

protections of the OSH Act, and is not 

covered by the OSHA standards. 

Therefore, an employer who has 

contracted with that individual for 

services is not required to pay for that 

individual’s PPE. Other individuals, 

who are not considered to be employees 

under the OSH Act are unpaid 

volunteers, sole proprietors, partners, 

family members of farm employers, and 

domestic employees in a residential 

setting. (See 29 CFR 1975.4(b)(2) and 

§ 1975.6 for a discussion of the latter 

two categories.) As is the case with 

independent contractors, no 

employment relationship exists between 

these individuals and the hiring party, 

and consequently, no PPE payment 

obligation arises. 

However, a self-employed 

independent contractor may become an 

employee of the hiring party, even if 

only temporarily. The label assigned to 

an employee is immaterial if it does not 

reflect the realities of the relationship. 

For example, an employment contract 

that labels a hired employee as an 

independent contractor will not 

necessarily control if in fact the hiring 

employer exercises day-to-day 

supervision over that employee, 

including directing the worker as to the 

manner in which the details of the work 

are to be performed, when it is to be 

performed, and so forth. Thus, 

depending on the nature and degree of 

control asserted over the means and 

methods of how the work is to be 

performed, the hiring employer may be 

responsible for compliance with OSHA 

standards, including providing PPE to 

that individual at no cost. 

C. Temporary Help Services and 

Subcontractors 

Several commenters asked OSHA to 

clarify application of the PPE payment 

requirements to temporary help services 

(See, e.g., Exs. 12: 66, 104, 145, 164) and 

subcontractors (See, e.g., Exs. 12: 3, 9, 

15, 28, 58, 66, 129, 222). 

With respect to temporary help 

services, some commenters stated that 

‘‘using firms’’ should not pay for 

required PPE. Caterpillar, Inc. stated 

that: 

[T]emporary workers, who are supervised 

by Caterpillar supervisors, often perform 

production, maintenance and service 

operations. The fact that we supervise these 

temporary employees makes them Caterpillar 

employees by OSHA definitions and 

enforcement policy. We expect temporary 

employees to provide their own common 

forms of PPE. We may also expect temporary 

employees to provide specialized equipment 

unique to an unusual job. Caterpillar may 

occasionally provide specialized PPE for 

specific tasks and any specialized PPE we 

provide would be recovered when the 

temporary employees move to another job. 

Complicating this issue is the fact that 

temporary employees often have employment 

relationships with two or more entities. Our 

temporary employees often have a 

relationship with their employment agency 

or parent firm which may provide insurance 

coverage, workers compensation benefits, 

training, and basic personal protective 

equipment. * * * OSHA must exclude 

temporary employees from the coverage of 

the proposed standard, or require that their 

current employer only assure that PPE is 

utilized and allow industry practice to 

determine who purchases PPE (Ex. 12: 66). 

Those entities that provide temporary 

employees, however, such as the 

National Association of Temporary and 

Staffing Services (NATSS), argued that 

the firm obtaining employees from a 

temporary help service (the utilizing 

employer) should pay for PPE, stating 

that: 

Although temporary staffing firms are 

employers of the workers that they send on 

assignment to a customer’s worksite, under 

long-standing OSHA policy the primary 

responsibility for providing and paying for 

PPE for such workers falls on the entity that 

directs and controls the workers on the 

worksite on a daily basis. In most cases, it is 

the customer that utilizes the workers and 

directs and supervises them on a day-to-day 

basis. Accordingly, in most temporary help 

arrangements, the responsibility for 

providing and paying for PPE for the 

temporary workers should rest with the 

staffing firm’s customer. Requiring the 

‘‘utilizing employer’’ to pay for PPE for the 

workers over whom it exercises day-to-day 

control is both in accordance with longstanding OSHA policy and makes sense from 

a practical, administrative perspective (Ex. 

12: 104). 

NATSS also pointed out that the 

utilizing employer principle is 

recognized as state law in California and 

North Carolina, that OSHA’s injury and 

illness recordkeeping regulations 

require the employer exercising day-today supervision over employees to 

record their injuries and illnesses, and 

that OSHA issued a letter of 

interpretation in 1985 that made the 

utilizing employer generally responsible 

for PPE. The NATSS further argued that 

the utilizing employer is in the best 

position to know what hazards are 

present at the worksite and what safety 

equipment is needed (Ex. 12: 104). 

The process used to determine which 

entity is the employer of the employee 

is similar to the process used to 

determine if an individual is an 

employee or an independent contractor. 

If the utilizing employer (the employer 

that hires the temporary help service) 

controls the manner in which the 

employees perform their assigned work, 

then he or she will usually be 

responsible under the standard for 

providing PPE at no cost. Conversely, if 

the employer providing the labor 

controls the work of the employee, 

independent of the utilizing employer, 

that entity will likely be the employer 

responsible for providing PPE at no cost. 

It may even be possible that both 

employers will be the ‘‘employers’’ of 

the employees, and that both will have 

a shared responsibility for providing 

PPE at no cost. This principle is seen in 

the context of the OSHA bloodborne 

pathogens standard with respect to 

which a host employer and an employer 

supplying employees to the host 

employer can have shared 

responsibilities (See CPL 2–2.69 (Nov. 

27, 2001) at X1.B). Even when this is the 

case, each employer must ensure that 

employee protection does not ‘‘slip 

through the cracks’’. 

The labor-providing firm and the 

utilizing firm are free to agree how to 

coordinate the provision of PPE at no 

cost through private arrangements, for 

example, by contract. However, 

employers may not escape their ultimate 

responsibilities under the Act by 

requiring another party to perform them. 

If they do so and those duties are 

neglected, ultimately the responsibility 

remains with the employer of the 

employees. In other words, employers 

must ensure that their employees are 

provided PPE at no cost, whether they 

provide it themselves or have another 

entity do so. When the employers 

accomplish this goal and ensure the 

employees receive the PPE at no cost, 

there is no violation of the standard. 

With respect to subcontractors, many 

commenters requested OSHA to make 

clear that host employers/general 

contractors on multi-employer worksites 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64363 

9For example, OSHA’s injury and illness 

recordkeeping regulation makes clear that ‘‘All 

individuals who are ‘employees’ under the OSH Act 

are counted in the total; the count includes all full 

time, part-time, temporary, and seasonal 

employees’’ (66 FR 5938). 

are not responsible for the payment of 

PPE for the employees of 

subcontractors. In its submission, the 

Society of the Plastics Industry 

recommended that: 

OSHA should clarify that contractors are 

responsible for the initial purchase and 

necessary replacement of their own 

employees’ equipment. For example, if the 

employee of a contractor arrives at the host 

employer’s site without the required PPE or 

is not using appropriate PPE for the current 

task, the rule should specify that the host 

employer is not responsible for providing 

and paying for the contractor employee’s PPE 

and therefore cannot be cited for failing to do 

so. The final rule or preamble to the final rule 

should clarify this allocation of 

responsibilities (Ex. 12: 58). 

The Dow Chemical Company added 

that ‘‘[t]he issue of who provides and 

pays for such equipment should remain 

a contractual issue between the host and 

contract employer. OSHA should have 

no role in those negotiations’’ (Ex. 12: 

129). ORC noted that: 

Host employers have responsibility for 

ensuring that contractors are informed of 

hazards present at the worksite and for 

making a determination that the contractors 

they hire are aware of the applicable safety 

and health requirements (including the use of 

appropriate PPE) for the work they are to 

perform. A host employer has an obligation 

not to contract with companies or 

individuals who clearly do not understand or 

intend to comply with safety requirements. 

And a host employer has an obligation to halt 

a contractor’s work if the host employer is 

aware that it is not being performed in a safe 

manner (Ex. 12: 222, pp. 3, 4). 

OSHA appreciates these comments 

and is making it clear that, as a general 

matter, host employers/general 

contractors are not responsible for 

payment of PPE for the employees of 

subcontractors at multi-employer 

worksites. 

OSHA recognizes that under its multiemployer enforcement policy, certain 

employers on multi-employer worksites 

have obligations to protect the 

employees of others (See OSHA 

Directive No. CPL 2–00.124 (Dec. 10, 

1999)). This has been a longstanding 

OSHA enforcement policy, which flows 

directly from the OSH Act’s 

requirements that employers are 

responsible for creating safe and 

healthful places of employment. 

Notwithstanding this, OSHA finds here 

that, a host employer/general contractor 

is not required to pay for the PPE of a 

subcontractor’s employees. However, 

when a host employer/general 

contractor establishes an employment 

relationship with an employee, the host 

employer/general contractor must 

provide the PPE to the employee at no 

cost. The obligation to pay for PPE is 

dependent on the employer/employee 

relationship, as described above. 

Finally, OSHA stresses effective 

communication and coordination 

between the utilizing, or host firm, and 

the contractor or temporary help 

service. Many employers already share 

information about these matters to help 

each other with their own respective 

safety and health responsibilities. 

Caroline Sherman of Arrow Temporary 

Services, Inc., testified that training 

responsibility was often shared—her 

company would provide general safety 

and health training (e.g, proper use of 

safety equipment) and the utilizing 

employer would provide site specific 

training (Tr. 558–559). 

In this final rule, OSHA is not 

specifying how employers should 

coordinate their obligations under the 

rule. However, the Agency encourages 

employing entities, including host 

employers, contractors, and temporary 

help services to communicate and 

coordinate their workplace safety and 

health activities. 

D. Part-Time and Short-Term 

Employees 

Many commenters raised concerns 

related to part-time and short-term 

employees (See, e.g., Exs. 12: 3, 18, 46: 

6, 11, 16, 26, 32, 44; 46: 21, 25, 29, 37, 

38, 50; 47: 1; Tr. 687–688). Short-term 

employees were characterized as 

temporary employees, piece workers, 

seasonal employees, hiring hall 

employees, labor pool employees, and 

transient employees. In a representative 

comment, SHRM stated that: 

Even in those cases where an ‘‘employer 

pays’’ approach is shown to be appropriate 

for full-time employees, SHRM does not 

believe that would be a reasonable mandate 

to extend to part-time employees, temporary 

employees and temporary workers provided 

by a staffing service. * * * HR professionals 

need greater flexibility to set and administer 

their PPE payment policies as to part-time 

employees and temporary workers. Part-time 

employees are more likely to work at several 

different worksites in a given week, and 

temporary employees are more likely to work 

at several different worksites within a given 

month or year. The proposed rule would 

impose an unfair burden upon one employer 

to pay for PPE that an employee may be using 

at other employers’ worksites at different 

times within the week or year. SHRM 

therefore proposes that required PPE, which 

is personal in nature and used by temporary 

or otherwise non-permanent employees, 

should be exempt from the PPE employer pay 

rule (46: 43). 

The Shipyard Council of America 

(SCA) noted that ‘‘[w]orkers in the 

shipyard industry are transient and 

turnover rates are exceptionally high. 

Often employees fail to return the 

employer’s equipment upon leaving and 

take the equipment to another worksite, 

thereby placing an undue economic 

burden on shipyard employers’’ (Ex. 46: 

32). In a combined comment, the United 

States Maritime Alliance Limited 

(USMX) and the Carriers Container 

Council, Inc. (CCC) stated that ‘‘In the 

marine cargo handling industry [marine 

terminals and longshoring], labor pools 

are often utilized to assign labor to a 

certain workplace. It is not uncommon 

for a single employee to work at a 

different employer’s facility from day to 

day or even shift to shift. As such, the 

proposed rule raises significant 

questions concerning compliance and 

enforcement within the marine cargo 

handling industry.’’ The NAHB 

remarked that: 

It is common knowledge that the 

residential construction industry, and in fact 

the construction industry as a whole, is 

facing an increasing shortage of qualified 

labor. To alleviate such shortages some areas 

in the country utilize ‘‘piece workers’’ to fill 

the gap. In the areas where piece workers are 

used, how will this rule be enforced? * * * 

Such companies typically process 15–50 

workers in a single week and many of these 

quit or are terminated after a short time. It 

is not uncommon for some workers to be 

terminated in a matter of hours (Ex. 12: 68). 

The PPE payment provisions apply to 

all employers under the Act, including 

those with short-term employees, 

whether referred to as temporary 

employees, piece workers, seasonal 

employees, hiring hall employees, labor 

pool employees, or transient 

employees.9 As discussed above, if an 

employer-employee relationship is 

established, then the employer must 

provide PPE to the employee at no cost. 

As discussed earlier, if the individual is 

not an employee and is actually a selfemployed independent contractor, then 

the OSH Act does not apply, and the 

PPE payment rule also does not apply. 

An issue relevant to part-time and 

short-term employment is the issue of 

employee-owned PPE. The final rule 

provides that where an employee 

provides appropriate protective 

equipment he or she owns, the 

employer may allow the employee to 

use it and is not required to reimburse 

the employee for it. This provision is 

included in the regulatory text at 

§ 1910.132(h)(6) for general industry, 

§ 1915.152(f)(6) for shipyard 

employment, § 1917.96(e) for 

longshoring, § 1918.106(e) for marine 


jlentini on PROD1PC65 with RULES3
64364 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

10For example, OSHA’s compliance directive 

CPL 02–01–028—CPL 2–1.28A—Compliance 

Assistance for the Powered Industrial Truck 

Operator Training Standards explains that ‘‘Each 

employer for whom an employee works is 

responsible for ensuring that the employee has been 

trained in accordance with the standard. In hiring 

hall situations, the training under 

§ 1910.178(l)(3)(i), truck-related topics, may be 

conducted by a labor union, joint labor/ 

management training organization, an association of 

employers, or another third-party trainer as long as 

the person(s) conducting the training have the 

knowledge, training, and experience to properly 

conduct the training’’. 

terminals, and § 1926.95(d)(6) for 

construction. The final rule also makes 

clear that employers shall not require 

employees to provide or pay for their 

own PPE, unless specifically exempted. 

Employers cannot avoid their 

obligations under the standard by 

requiring their employees to purchase 

PPE as a condition of employment or 

placement. OSHA never intended in the 

proposed rule to prevent employees 

from voluntarily using PPE they already 

own, however, so long as the PPE was 

adequate to protect them from hazards. 

Furthermore, OSHA did not intend for 

employers to have to reimburse 

employees for equipment that they 

voluntarily bring to the worksite and 

wish to use. OSHA believes that 

allowing employees to use equipment 

they own, as OSHA has always 

intended, will alleviate some of the 

concerns raised by commenters 

regarding part-time and short-term 

employment. Employers who employ 

short-term and part-time employees may 

also require employees to return 

employer-owned PPE at the end of the 

day or when they terminate 

employment, and may use a deposit 

system or other mechanism to help 

ensure that their employees return the 

PPE. 

E. Longshoring and Marine Terminals 

Longshoring and marine terminal 

employers and employees are covered 

by the OSHA standards at 29 CFR Parts 

1917 and 1918. These two standards 

work together to regulate safety and 

health conditions applying to a single 

industry—the loading and unloading of 

ships at the Nation’s ports. The marine 

terminal standards at Part 1917 apply to 

onshore working conditions and the 

longshoring standards at Part 1918 

apply to working conditions onboard 

vessels such as container ships or 

barges. 

The proposal noted that the nature of 

the industry creates employer-employee 

relationships unique to each port. At 

some ports, employees are hired for one 

job through a labor pool. At another 

port, one employee may work for five 

different employers in the same week. 

The specific questions OSHA asked 

were: ‘‘How do these factors affect the 

issue of who is required to pay for PPE? 

Does the employer customarily pay for 

PPE in the maritime industry? Are there 

any other issues unique to the maritime 

industry that OSHA should consider in 

this rulemaking?’’ (64 FR 15416). 

A number of longshoring and marine 

terminal interests commented on the 

proposed standard (See, e.g., Exs. 12: 14, 

17, 172, 173; 13: 7; 45: 35, 40; 46: 4). 

The most common concern among the 

marine terminal commenters was that 

the use of labor pools and union hiring 

halls in the longshoring industry creates 

special circumstances that would make 

the PPE payment standard unworkable 

(Ex. 12: 14, 172, 173; 13: 7). The Pacific 

Maritime Association (PMA) noted that 

marine cargo handling employers hire 

labor on a daily, as needed, basis, 

through one or more union locals or 

dispatch halls operated jointly by PMA 

and the ILWU (International Longshore 

and Warehouse Union). As a result, 

much of an employer’s workforce 

changes from shift to shift. The PMA 

pointed out that the proposed rule could 

require an employer to provide and pay 

for PPE for each employee on its dock. 

The PMA also noted the administrative 

difficulties in determining whether an 

employee or another employer paid for 

the PPE. The PMA also noted that the 

role of an employer association in 

providing PPE was unclear (Ex. 12: 173). 

The South Carolina Stevedores 

Association remarked that ‘‘Employers 

in the Port of Charleston would be 

forced to maintain equipment 

inventories and administer 

recordkeeping programs on a daily basis 

to comply with this proposed rule for a 

workforce of over one thousand 

employees’’ (Ex. 12: 14). The NMSA 

added: 

A literal reading of the proposed rule 

would indicate that the current employer 

must be the one who paid for the PPE. Thus, 

if on Monday an employee works for 

employer A, and on Tuesday the employee 

works for employer B, employer B must have 

paid for the PPE the employee is using on 

Tuesday. If the employee shows up at 

workplace B with PPE paid for by employer 

A, employer B would be in violation of 

federal law. This makes absolutely no sense 

and is simply unenforceable. In other words, 

it is not feasible (Ex. 12: 172, p. 9). 

As an initial matter, OSHA notes that 

the marine cargo handling industry is 

not unique in its use of union hiring 

halls and labor pools, and that other 

industries also use these methods to 

hire employees, including construction 

and shipyards. The fact that employees 

are obtained from a hiring hall does not 

change an employer’s obligations under 

the OSH Act.10 Like many others, 

commenters in the longshoring industry 

assumed that the rule would have 

banned employee-owned PPE. As 

explained in the section on employeeowned PPE, an employer can allow the 

use of PPE that the employee provides 

when he or she arrives at work. Thus, 

if a port association purchases and 

provides the PPE to employees, OSHA 

does not object. Of course, the employer 

must ensure that the type of and 

condition of the PPE is adequate to 

protect the employee against the 

hazards present in the workplace. The 

point of this PPE payment standard is to 

ensure that the PPE used to comply with 

OSHA standards is provided by the 

employer at no cost to employees. 

As the International Union of 

Operating Engineers (IOUE) noted: 

Workers in these industries should have no 

less protection because of the nature of the 

employer-employee relationship in the ports. 

It is the IUOE’s experience that its members 

have no desire to collect closets full of safetytoe footwear and dresser drawers full of 

protective prescription eyewear. Employers 

may inquire if workers already have suitable 

steel toe footwear and prescription eyewear. 

If so, most workers will gladly use it as they 

change employers. If the worker does not 

have the PPE, then the employer should pay 

for it. Over time the cost of paying for PPE 

should even out for port employers (Ex. 12: 

134). 

OSHA has included marine terminal 

and longshore employers and 

employees in the final PPE payment 

standard. OSHA is confident that the 

industry will solve the hiring hall 

employment problem with this OSHA 

standard, just as it has for all other 

OSHA standards that apply to the 

industry. For example, the employers in 

the industry may work with their port 

associations and the hiring halls that 

provide labor to coordinate the 

provision of PPE. OSHA notes that it 

already has standards that require 

employer payment for certain types of 

PPE. There is no evidence in the record 

that employers in the marine cargo 

handling industry, or other hiring hall 

industries, have difficulty applying 

these standards to their employment 

situation. 

USMX and the CCC argued that 

OSHA should have consulted with the 

Agency’s Maritime Advisory Committee 

for Occupational Safety and Health 

(MACOSH) before issuing the proposed 

rule (Ex. 13: 7). OSHA notes that under 

section 107 of the Contract Work Hours 

and Safety Standards Act (40 U.S.C. 

333, of 1973, commonly known as the 

Construction Safety Act) and OSHA’s 

own regulations at 29 CFR Part 1912, 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64365 

11More than 125 companies engaged in 

residential home building and associated 

subcontractors submitted nearly identical letters, 

which will be referenced as ‘‘Form Letter A’’ (See, 

e.g., Exs. 12–22; 23, 24, 25, 26, 27, 30, 33, 34, 35, 

36, 37, 39, 40, 41, 46, 47, 54, 56, 57, 59, 60, 61, 62, 

63, 64, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 

80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92, 93, 94, 96, 

97, 98, 103, 115, 118, 119, 120, 121, 122, 123, 124, 

125, 126, 127, 128, 132, 136, 137, 138, 139, 140, 

142, 143, 147, 148, 156, 157, 158, 159, 160, 162, 

166, 168, 170, 174, 175, 176, 177, 178, 179, 180, 

185, 186, 192, 193, 194, 195, 196, 197, 198, 199, 

200, 202, 205, 208, 212, 213, 215, 216, 219, 223, 

224, 225, 226, 227, 231, 232, 234, 236, 237, 238, 

239, 240, 241, 242). 

the Agency is required to consult with 

the Advisory Committee on 

Construction Safety and Health 

(ACCSH) regarding the setting of 

construction standards. However, unlike 

ACCSH, there is no requirement for 

OSHA to consult with MACOSH prior 

to issuing a proposed regulation or 

standard affecting the maritime sectors. 

While the Agency may seek the advice 

of MACOSH on a rulemaking during the 

pre-proposal stage, and often does so, 

there is no requirement to that effect. 

Furthermore, maritime interests had 

numerous opportunities to comment on 

the rule during the extensive 

rulemaking process used by the Agency. 

USMX and CCC also argued that 

longshore employees are well 

compensated and can afford their own 

PPE. The relative pay of longshore 

employees compared to employees in 

other sectors is immaterial to the OSHA 

regulations and standards. Each 

employee is entitled to the protections 

afforded under the Act, including by 

this standard. It is therefore the duty of 

the employer to provide PPE at no cost 

to their employees regardless of the 

employees’ pay level or employment 

benefits. 

F. Shipyards 

Shipyard employers and employees 

are covered by the OSHA standards at 

29 CFR Part 1915. Shipyards engage in 

several industrial activities, including 

ship building, ship repair, barge 

cleaning, and ship breaking. To the 

extent that the Part 1915 standards do 

not cover a specific safety or health 

hazard, the Part 1910 general industry 

standards apply. (See CPL 02–00–142, 

Shipyard Employment ‘‘Tool Bag’’

Directive for further details.) In the 

preamble to a 1996 rulemaking revising 

the Shipyard PPE standards, OSHA 

reiterated the 1994 policy requiring 

payment for PPE unless it was personal 

in nature and used off the job (61 

FR26327). The Agency subsequently 

included the shipyard standards in the 

1999 proposal to revise its PPE 

standards for all industries (64 

FR15402). Several shipyard interests 

commented on the proposed PPE 

payment standard (See, e.g., Exs. 7; 12: 

29, 65, 112, 210; 13: 6, 21; 35). 

Despite the 1996 preamble discussion, 

the PPE payment practices reported by 

these commenters varied widely. For 

example, Newport News Shipyard 

reported that it pays for all PPE required 

by the final standard, and asked only for 

clarification of items for which 

employer payment is not required (Ex. 

12: 210). (See Section V for a discussion 

the PPE for which employer payment is 

required.). Other shipyards reported a 

variety of PPE payment practices. 

Avondale Shipyards Division reported 

that they pay for most PPE but require 

employees to pay for certain welding 

PPE, safety-toe shoes, and safety glasses 

(Ex. 12: 112). Ingalls Shipbuilding had 

the same policy, but also required 

employees to pay for their own hard 

hats (Ex. 12: 29). The Shipbuilders 

Council of America (SCA) polled 50 

shipyard companies and reported a 

variety of payment practices for 13 types 

of PPE. Employer payment practices 

ranged from 5 percent for safety shoes 

to 100 percent for fall protection and 

chemical protective equipment. These 

employers also reported various policies 

that required their employees to pay for 

some equipment and share costs with 

the employer for other types of PPE (Ex. 

12: 65). 

Many of these shipyard commenters 

believed employees should pay for their 

own welding PPE, and especially 

welding leathers. This issue is discussed 

in more detail in section V ‘‘PPE for 

which employer payment is required’’. 

Others argued the shipyard workforce 

has frequent employee turnover and that 

PPE carried from job to job should be 

exempted. As noted earlier, the Agency 

sees no reason to provide less protection 

for short-term employees. The shipyard 

industry’s turnover rates do not appear 

to be significantly higher than the rates 

for construction and marine terminals 

(See the economic analysis for a 

comparison of turnover rates). 

Furthermore, the Agency has not 

received any comments that would 

warrant an exception for an entire 

industry. After careful consideration, 

OSHA has promulgated the same final 

rule for shipyards that it is issuing for 

other industries. 

G. Construction 

Construction employers are covered 

by the OSHA standards at 29 CFR Part 

1926. The 1999 proposal covered the 

construction industry, just as it covered 

other industries. In fact, OSHA noted in 

the proposal that: 

OSHA realizes that there is frequent 

turnover in the construction industry, where 

employees frequently move from job-site to 

job-site. This is an important factor because 

an employer with a high turnover workplace 

would have to buy PPE for more employees 

if the PPE was of the type that could only be 

used by one employee. OSHA requests 

comment on whether its proposed exceptions 

for safety-toe footwear and prescription 

safety eyewear are appropriate in the 

construction industry. Are there any other 

approaches to handle the turnover situation 

that would be protective of construction 

workers? Are there any other issues unique 

to the construction industry that should be 

considered in this rulemaking? (64 FR 

15416). 

In response to the proposal, OSHA 

received more comments from the 

construction industry than any other 

industry sector. Construction interests 

accounted for nearly half of the 350 

comments received by the Agency.11

The commenters noted that ‘‘The issue 

of who pays for PPE has long been a 

contentious one in the construction 

industry’’ and noted five major reasons 

for their opposition to the rulemaking, 

several of which were also articulated 

by commenters outside of the 

construction industry. First, these 

commenters asserted that the proposed 

rule is beyond OSHA’s statutory 

authority. The Legal Authority section 

of this preamble explains that OSHA is 

well within its statutory mandate to 

issue this rule. 

Second, the commenters argued that 

the proposed rule would limit 

employers’ flexibility in managing 

safety and health at their workplaces. 

The standard does not limit employers 

in implementing and managing their 

safety and health programs, an activity 

OSHA encourages. Commenting 

employers in OSHA’s Voluntary 

Protection Programs (VPP), all of whom 

have implemented OSHA-approved 

safety and health management systems, 

unanimously supported employer 

payment for PPE, and did not suggest 

any negative effects on their safety and 

health management systems (See, e.g., 

Exs. 12: 113, 210). 

Third, the commenters argued that the 

proposed rule would give employees the 

freedom to be irresponsible with 

company-owned PPE, and urged OSHA 

to specify when an employer can charge 

an employee for lost PPE. Employers 

have a number of means available to 

address circumstances where employees 

do not follow company rules or are 

irresponsible with company equipment. 

Two such means are increased 

education efforts and disciplinary 

systems. With respect to the latter, 

OSHA expects employers to fairly 

enforce reasonable and appropriate 

disciplinary systems as part of their 


jlentini on PROD1PC65 with RULES3
64366 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

12Approximately 30 electrical contractors 

submitted identical comments, which will be 

referenced as ‘‘Form Letter B’’ (See, e.g., Exs. 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, 25, 

29, 38; 47: 1). 

overall effort to comply with OSHA 

standards and establish effective 

workplace safety and health programs. 

Nothing in this rule prevents employers 

from implementing these disciplinary 

systems. The Replacement PPE section 

of this preamble provides a discussion 

of this topic. 

Fourth, these commenters, along with 

many others, (See. e.g., Exs. 12: 18, 

Form letter B12) argued that employee 

payment for PPE will ensure that the 

PPE is maintained in good working 

order. Commenters also noted that 

employers would be inclined to 

purchase PPE that is less expensive (and 

perhaps less safe) than that purchased 

by employees, or that employees would 

be inclined to purchase less expensive 

PPE that would not meet the minimum 

PPE standards established by the 

American National Standards Institute 

(ANSI) (Ex. 12: 134, 218). The Agency 

addresses this issue in Section XIV, 

Legal Authority. 

Fifth, and last, the commenters 

asserted that employers would need to 

keep receipts to prove payment to an 

OSHA inspector or Compliance Safety 

and Health Officer (CSHO). Employers 

in all industries, including construction, 

typically keep receipts and other 

transaction records as part of their 

accounting systems to comply with 

standard accounting practices and 

various business regulations. For 

example, such receipts could be needed 

to prepare the employer’s income tax 

forms. Notwithstanding this usual 

practice, nothing in the final rule 

requires employers to keep receipts to 

prove that they paid for PPE. Generally, 

PPE payment practices can be 

determined through management and 

employee interviews. 

Similar to the home builders, a group 

of about 30 electrical contractors 

submitted nearly identical comments 

(Form Letter B). These contractors, 

which included the National Electrical 

Contractors Association (NECA), urged 

the Agency to exempt certain items of 

electrical PPE from the payment 

requirements because they viewed them 

as tools of the electrical trade. After 

considering the comments provided, 

OSHA has rejected the ‘‘tools of the 

trade’’ concept and employers will 

generally be required to provide most of 

these items at no cost to employees. 

These comments are discussed in 

Section V, ‘‘PPE for which payment is 

required,’’ and Section VII, ‘‘Other 

alternatives considered during the 

rulemaking process.’’

Similar to comments from the 

maritime and longshoring sectors, a 

number of construction-related 

commenters noted the transient nature 

of construction work and the high 

turnover rates in the industry. Many of 

them argued that the short-term 

employment nature of the industry 

should influence OSHA’s decisions in 

the final standard (See, e.g., Exs. 12: 

102, 153, 207, 229; 45: 28; form letter A; 

form letter B). The Betco Scaffold 

Company remarked that: 

The services provided by the scaffolding 

industry in support of both industry and 

construction is of short job duration and for 

the greatest extent provided by temporary 

employees who travel from job to job. There 

is a high turnover rate and employees 

systematically walk off jobs abruptly and 

without notice, taking with them their tools 

and any and all PPE. There is seldom a tool 

room or construction shack on site due to the 

short duration of the jobs. Equipment losses 

and non-recovery of employer furnished PPE 

will amount to an economic burden that 

cannot be recovered (Ex. 12: 18). 

Other commenters argued that the 

transient nature of the industry should 

not result in reduced protection (See, 

e.g., Exs. 12: 234, 218) or that OSHA 

should make the rule fair for all 

employees (See, e.g., Exs. 12: 134, 190). 

In a typical comment, the IUOE 

remarked that: 

[w]orker turnover should not be a 

consideration in determining whether a 

construction employer should be required to 

pay for PPE. Construction workers should not 

receive less protection than other industries 

where turnover may be less. If all 

construction employers are required to pay 

for all PPE, contractors may pass on the costs 

to construction owners in their contract 

price. This will level the playing field for 

bidders on construction work (Ex. 12: 234). 

There is no logical basis for providing 

different protections for different classes 

of employees, as described by these 

commenters, and any such 

differentiation is not supported by the 

OSH Act or case law. Consequently, the 

Agency does not consider employee 

turnover as a reasonable basis for 

excluding the construction industry (or 

any other industry) from the PPE 

payment standard. 

Several commenters noted that 

employers may be compelled to incur 

the cost of purchasing specific brands or 

styles of PPE due to employee 

preference, even though such PPE does 

not provide additional protection (Ex. 

12: 21, 79, 99). OSHA emphasizes that 

employers are not required to purchase 

all of the PPE requested by their 

employees but rather are responsible for 

ensuring that adequate PPE is used to 

comply with OSHA standards, and that 

the PPE used to comply with OSHA 

standards is provided at no cost to their 

employees. Section VI ‘‘Employeeowned PPE’’ addresses employeeupgraded PPE. 

Finally, OSHA notes that several 

construction commenters supported the 

PPE payment proposal (See, e.g., Exs. 

12: 99, 134, 153, 190). For example, 

Associated Builders and Contractors, 

Inc., a national association representing 

24,000 construction and constructionrelated firms in 79 chapters across the 

United States primarily performing 

work in industrial and commercial 

construction initially opposed the 

proposed standard (Ex. 12: 153). 

However, in an August 23, 2004 

comment, the trade association noted 

that ‘‘ABC, with the guidance of its 

Safety, Environmental, and Health 

Committee, has decided to support the 

requirement that employers pay for PPE 

with some exceptions’’ (Ex. 46: 41). 

Those exceptions were that safety-toe 

protective footwear and prescription 

safety eyewear should be the 

responsibility of employees, that 

employers should not have to replace 

PPE damaged due to employee 

misconduct, and that employers should 

be compensated by employees for PPE 

removed from the jobsite without the 

employer’s permission. These issues are 

discussed in the preamble section 

dealing with PPE for which payment is 

required, and the replacement PPE 

section. 

VIII. Acceptable Methods of Payment 

Under the final rule, an employer may 

utilize any method of payment, as long 

as it results in PPE being provided to 

that employer’s employees at no cost. 

Many methods are available, and 

employers are free to choose a single 

payment method for all types of PPE, or 

different payment methods for different 

types of PPE. From its review of the 

comments, OSHA has identified four 

methods that employers currently use to 

provide PPE at no cost to their 

employees: (1) Employer purchase and 

distribution, (2) allowances, (3) 

vouchers, and (4) employer 

reimbursement to employees. As 

explained below, in general these 

methods are acceptable, and employers 

may choose these options or develop 

other methods. At bottom, however, 

OSHA believes that PPE use and 

effectiveness improves when employers 

exercise greater control over the 

purchasing process. 

A. Employer Purchase and Distribution 

On this record, the method that 

appears to be the most effective way for 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64367 

employers to provide PPE to their 

employees is for employers to purchase 

the PPE themselves, keep a ready 

supply of PPE, and distribute the PPE 

directly to their employees. This 

method ensures that the PPE meets the 

specifications the employer has set 

through the hazard assessment/PPE 

selection process. It also provides the 

simplest means of ensuring the quality 

of the equipment and minimizes the 

need to individually assess each 

employee’s choice of PPE. 

There are many additional advantages 

to be gained through this approach. By 

maintaining a PPE inventory, the 

employer can provide immediate 

replacements for PPE that may become 

deficient due to wear and tear or 

accidental damage. OSHA’s standards 

require the employee to be protected 

when exposed to a hazard. If 

replacement PPE is not readily available 

to replace deficient PPE, the employee 

may not be able to complete his or her 

shift, resulting in lost productivity for 

the employer. The employer may also 

purchase the equipment in bulk. This 

would produce a cost savings to the 

employer through bulk purchase 

discounts as well as standardized 

equipment that would be easier to repair 

and maintain. 

B. Allowances 

A number of commenters raised the 

issue of using employee allowances to 

procure PPE (See, e.g., Exs. 12: 153, 188; 

46: 43). In an allowance system, an 

employer gives an employee a certain 

amount of money to use to purchase 

specific PPE. OSHA does not object to 

allowances as a means of paying for 

PPE, as long as the allowance policy 

ensures that employees receive 

appropriate PPE at no cost. 

As several commenters noted, an 

allowance system is a common practice 

and it appears that in many cases it is 

an effective and convenient method for 

providing PPE to employees at no cost. 

On the other hand, an allowance system 

may create the need for the employer to 

put in place a more rigorous method to 

ensure that the PPE is adequate for the 

job. While the employer can take several 

steps to guide employees in their 

purchase, such as giving employees a 

list of approved vendors or PPE 

specifications, the employer may need 

to follow up with employees and 

inspect the PPE. 

C. Vouchers 

Another system employers currently 

use to purchase PPE is a voucher 

system. In this system, an employer 

typically has an arrangement with a 

local retailer or distributor of PPE 

whereby the retailer or distributor will 

accept a voucher from the employer for 

a particular type of PPE in lieu of direct 

payment. The retailer or distributor then 

directly bills the employer for the PPE 

after processing the voucher. Some 

employers find this system 

administratively convenient; it also 

avoids having to pay money to an 

employee before the purchase is made 

in the form of an allowance. 

D. Employee Purchase With Employer 

Reimbursement 

Some employers may decide to use an 

employee reimbursement method for 

providing PPE. Under this type of 

system, the employer requires the 

employee to purchase the PPE and then 

reimburses the employee for the cost of 

the purchase. This method has most of 

the same advantages and disadvantages 

as allowances and vouchers. The 

difference is that the employee is 

provided the funds after the PPE is 

purchased, instead of before. 

Some commenters raised an issue that 

applies to allowances, vouchers, and 

reimbursement. These commenters 

asked whether or not an employer 

would be required to reimburse an 

employee for time and travel expenses 

to shop for PPE to ensure that PPE was 

provided at no cost. The SHRM 

remarked: 

SHRM’s understanding is that OSHA never 

contemplated that the employer payment 

obligation would extend beyond the 

purchase price of the PPE to include the time 

the employee would spend acquiring the 

PPE. * * * For example, it would be fairly 

common for an employee to travel to an 

employer-designated shoe store where the 

employer has an account. The employee 

would have the ability to review available 

shoe models, select the model and size that 

best meets the employee’s needs (up to a 

specified allowance with the employee 

paying for any amount in excess of the 

allowance), and possibly get some 

personalized fitting. * * * Payment of 

compensation for the time spent shoe 

shopping would be an unreasonable burden, 

would likely exceed the cost of the PPE, and 

would be fraught with the potential for abuse 

and make it difficult to administer (Ex. 46: 

43). 

OSHA does not intend the rule to 

cover time and travel expenses an 

employee might incur while shopping 

for PPE during non-work hours. OSHA 

recognizes that this position differs from 

the position the Agency has consistently 

taken with respect to employee time and 

travel expenses for medical services in 

several other standards (See, e.g., lead 

standard at § 1910.1025(j)(1)(iii) and 

bloodborne pathogens standard at 

§ 1910.1030(f)(1)(ii)). These standards 

also use the terms ‘‘at no cost’’ and 

OSHA has interpreted them as requiring 

employer payment for the time and 

travel costs an employee incurs for 

receiving required medical services 

during non-work hours. See Phelps 

Dodge Corp. v. Occupational Safety and 

Health Review Comm., 725 F.2d 1237 

(9th Cir. 1984). The underlying reason 

for OSHA’s position was that the time 

and travel needed to obtain the required 

medical services could be so great that 

if employees were not compensated for 

it, they would delay visiting a health 

care provider (HCP), resulting in 

delayed diagnosis and treatment. Even 

worse, they might opt not to participate 

in the employer’s medical surveillance 

program at all. As described below, 

OSHA believes that time and travel 

required to purchase PPE is much less 

than that required for medical services. 

Because of this, OSHA does not believe 

that requiring employees to shop for 

PPE on their own outside of work would 

serve as a disincentive to acquiring the 

PPE. 

First, the amount of time required to 

visit an HCP, wait to see the HCP, get 

any required tests taken, and consult the 

HCP about the results is much longer 

than the time needed to purchase PPE. 

OSHA has found with respect to 

medical screening and surveillance that 

the amount of time required to obtain 

services is quite long in certain 

circumstances and if employers did not 

pay for the time and travel involved, 

employees might forego the 

examinations. See e.g., Phelps Dodge, 

725 F.2d at 1238 (actual time required 

for medical examinations, including 

transportation and waiting was ‘‘an hour 

or more’’). Furthermore, employees on 

occasion need to make multiple trips to 

an HCP. While employers are often 

required to offer medical surveillance to 

employees, employee participation in 

medical surveillance programs is 

sometimes not required by OSHA 

standards, and employees may decline 

to participate. As such, the time spent 

to participate may act as a disincentive 

to employees if they were not 

compensated for time and travel. These 

considerations do not apply to shopping 

for PPE. 

Second, unlike medical services 

where the employee would almost 

certainly have to travel in person to the 

HCP, there are many options available 

for employees to acquire PPE on their 

own and some of these involve no 

travel. There are many retail locations 

that sell PPE, and in many cases the 

employee may already be going to the 

retail location for personal shopping. In 

addition, there are numerous catalogue 

and internet retailers available for 

employees to shop for equipment. 


jlentini on PROD1PC65 with RULES3
64368 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

OSHA does not believe that the extra 

time needed to acquire PPE outside of 

work hours would serve as a significant 

disincentive to employees getting the 

PPE. 

For these reasons, employers are not 

required to reimburse employees for 

time spent shopping for PPE or for 

travel expenses related to PPE shopping. 

IX. Effective Dates 

Each of the PPE payment standards 

includes an effective date paragraph to 

establish the dates when employers will 

be fully responsible for meeting the PPE 

payment requirements. (See 

§ 1910.132(h)(7), § 1915.152(f)(7), 

§ 1917.96(f), § 1918.106(f), and 

§ 1926.95(d)(7)) Each affected standard 

will become effective on February 13, 

2008. This date is 90 days from the date 

of publication in the Federal Register. 

The Agency sets the effective date to 

allow sufficient time for employers to 

obtain the standard, read and 

understand its requirements, and 

undertake the necessary planning and 

preparation for compliance. The 90-day 

effective date has been established to 

comply with section 6(b)(4) of the OSH 

Act, which provides that the effective 

date for a standard may be delayed for 

up to 90 days from the date of 

publication in the Federal Register. 

Despite the 90-day effective date, 

OSHA is extending the compliance 

deadlines for the final standard so 

employers will be given six months to 

fully comply with the new 

requirements. By extending the deadline 

to comply with the PPE payment 

provisions, OSHA will minimize the 

impact of the rule on existing collective 

bargaining agreements, and give 

businesses (including small businesses) 

needed time to implement the 

requirements. 

A number of commenters remarked 

that existing collective bargaining 

agreements containing PPE provisions 

would be affected by the final standard 

(See, e.g., Exs. 12: 14, 16, 17, 21, 43, 65, 

66, 79, 117, 172, 173, 183, 188, 189). 

Several argued that the final rule would 

have a negative effect on employers that 

have existing collective bargaining 

agreements (See, e.g., Exs. 12: 14, 16, 17, 

65, 79, 173, 183, 188, 189). The 

Association of Electric Cooperatives 

noted that, 

OSHA should keep in mind that payment 

arrangements for PPE are frequently part of 

the employers’ negotiations with the labor 

union. As such, when stating the effective 

date of the rule, consideration should be 

made to current union contracts. The 

Association recommends that the effective 

date of the rule allow for current labor 

contracts to run their course. Employer’s 

payment of PPE, in most cases, will take 

effect at the signing of the next contract (Ex. 

12: 183). 

OSHA has not implemented a 

compliance deadline that would allow 

all collective bargaining agreements to 

expire and be renegotiated before the 

rule takes effect. This would take 

several years and would result in undue 

delay of the safety and health benefits 

that the Agency expects will result from 

the rule. The six-month compliance 

deadline will allow sufficient time for 

some collective bargaining agreements 

to expire and will provide a reasonable 

interval for employers and unions to 

work out the specific methods by which 

PPE will be provided to employees at no 

cost. 

The six-month compliance date will 

also give businesses time to establish 

systems for effectuating employer 

payment. As discussed above, 

employers may utilize a number of 

different methods to ensure that PPE is 

provided at no cost to employees. 

Allowing a six-month compliance 

deadline will give employers time to 

determine what method is best for their 

business and implement the method 

before the rule takes effect. 

The six-month compliance deadline 

will also help minimize the burden on 

small businesses. Some commenters 

urged OSHA to consider the special 

needs of small business entities when 

considering the effective date of the 

standard (See, e.g., Exs. 12: 3, 68, 145). 

Douglas Battery suggested the 

‘‘[e]stablishment of a size threshold (or 

other measure) at which the cost of 

providing PPE becomes a shared 

responsibility between employers and 

employees for some specified period’’

(Ex. 12: 3). 

OSHA has not implemented a phasedin approach as recommended by 

Douglas Battery because doing so would 

be overly complex, cumbersome, and 

delay the benefits of the final rule. 

However, the Agency believes that the 

six-month compliance deadline will 

give the large number of small 

businesses covered by the standard 

sufficient time to work with PPE 

suppliers to obtain needed equipment 

and negotiate bulk discount prices. In 

some cases, very small employers may 

choose to join together and coordinate 

their PPE acquisition efforts through a 

local trade association or co-op to obtain 

bulk discounts on equipment. The 

extended compliance deadline will 

provide time to set up such 

arrangements. 

X. Effect on Existing Union Contracts 

Many collective bargaining 

agreements contain language specifying 

that employers will provide certain PPE 

to employees at no cost and some 

specify certain PPE that employees will 

be responsible for providing (and paying 

for) themselves. The final standard 

could have an impact on these 

agreements. OSHA has carefully 

considered the impact of the final rule 

on collective bargaining agreements and 

has determined that workplaces with 

collective bargaining agreements should 

be treated no differently in the final rule 

than workplaces without collective 

bargaining agreements. However, to 

reduce impacts on existing collective 

bargaining agreements, OSHA is 

establishing a six-month compliance 

deadline for the final rule. This will 

allow some existing collective 

bargaining agreements to expire or 

provide employers and employees time 

to renegotiate agreements to conform to 

the final rule. 

Many stakeholders commented on the 

extent to which an employer payment 

for PPE rule would impact existing 

collective bargaining agreements. Some 

union commenters stated that an 

employer payment rule would affect 

collective bargaining agreements in the 

same way as other OSHA safety and 

health standards and that OSHA should 

not make any exceptions from the rule 

for workplaces governed by collective 

bargaining agreements (See, e.g., Exs. 

12: 14, 16, 17, 21, 65, 79, 99, 167, 173, 

183, 188, 189). 

One commenter noted that most 

collective bargaining agreements 

contain language requiring employers to 

pay for all required PPE (Ex. 12: 105). 

Some commenters supported the rule on 

the basis that it would create a level 

playing field for union and non-union 

employees (Ex. 12: 110) by ensuring that 

in both cases employees are provided 

PPE ‘‘at no cost’’ and ensure that more 

employees, including non-union 

employees, would be afforded the same 

protections (Ex. 12: 113). 

Some commenters, on the other hand, 

asserted that the rule inappropriately 

interferes with existing collective 

bargaining agreements because PPE 

payment is a traditional and mandatory 

subject of collective bargaining under 

federal law, and thus violates the 

policies of federal labor legislation 

governing employer and employee 

negotiation over workplace conditions 

(See e.g., 12: 43, 173, 189). Caterpillar, 

Inc., remarked that ‘‘Payment sharing 

procedures that have been developed 

through years of collective bargaining 

will be unjustly modified by this 

proposal’’ (12: 66). 

OSHA finds that the final rule does 

not inappropriately interfere with 

collective bargaining agreements. The 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64369 

impact of OSHA standards on collective 

bargaining has been discussed by OSHA 

in past rules. OSHA has consistently 

stated that the duty to bargain with 

unions over safety and health matters 

does not excuse employers from 

complying with OSHA standards. This 

principle has been upheld by the courts 

(See, e.g., Forging Industries at 1451–

1452). In United Steelworkers of 

America v. Marshall, 647 F.2d 1189, 

1236 (D.C.Cir.1980) the court observed: 

In passing a massive worker health and 

safety statute, Congress certainly knew it was 

laying a basis for agency regulations that 

would replace or obviate worker safety 

provisions of many collective bargaining 

agreements. Congress may well have viewed 

collective bargaining agreements along with 

state worker’s compensation laws as part of 

the status quo that had failed to provide 

workers sufficient protection (Id. at 1236). 

OSHA sees no distinction between 

this rule and other OSHA standards 

placing obligations on employers. In 

fact, in numerous past rulemakings 

OSHA has required employers to 

provide PPE ‘‘at no cost’’; none of these 

rules has been overturned because they 

inappropriately interfered with 

collective bargaining. Compliance with 

the rule does not conflict with 

employers’’ obligations to bargain over 

mandatory subjects of bargaining under 

the National Labor Relations Act 

(NLRA). 

Additionally, the rule does not 

foreclose bargaining about discretionary 

aspects of the standard such as the 

means by which the employer will 

provide the PPE to employees so that it 

results in no cost to the employees, 

payment arrangements for equipment 

that is not covered by the final rule, and 

so forth. As courts have found, to the 

extent the employer has discretion in 

the means by which it achieves 

compliance, and the means involve a 

mandatory subject of bargaining, the 

employer is not only free to bargain but 

would be required to bargain with the 

union regarding the means of 

compliance. United Steelworkers, 647 

F.2d at 1236 (‘‘[w]hen an issue related 

to earnings protection not wholly 

covered by OSHA regulation arises 

between labor and management, it will 

remain a mandatory subject of collective 

bargaining’’); see Watsonville 

Newspapers, LLC, 327 N.L.R.B. No. 160, 

slip op. 2–3 (Mar. 24, 1999); DickersonChapman, Inc., 313 N.L.R.B. 907, 942 

(1994) (although employer must comply 

with OSH Act standard requiring daily 

inspections of open excavations by a 

‘‘competent person,’’ employer must 

bargain with union about who would be 

so designated); Hanes Corp., 260 

N.L.R.B. 557, 561–562 & n.12 (1982) 

(where OSHA standard required use of 

respirators but gave employer discretion 

with respect to choice of respirator, 

employer could require use of respirator 

without bargaining, but could not 

unilaterally determine which approved 

respirator would be used). 

OSHA has repeatedly emphasized the 

importance of involving employee 

representatives in all aspects of 

workplace safety and health. The 

Agency believes that employers and 

unions have been able to meet both their 

responsibilities under OSHA’s 

standards and their duty to bargain 

under the NLRA. This has been the case 

with other OSHA rules, and the Agency 

believes that employers and employees 

will be able to do the same under the 

PPE payment standards. 

One commenter remarked that 

‘‘[t]here is no evidence that the 

collective bargaining process is broken’’

(12: 189) while another observed that 

relying on collective bargaining for the 

payment of PPE is an ‘‘inadequate 

solution’’ (Ex. 12: 100). OSHA notes that 

many employees are not represented by 

unions, so relying on collective 

bargaining as an alternative to the final 

rule would not be effective. It also 

would be impractical to create an 

exception for workplaces covered by 

collective bargaining agreements, 

because doing so would result in 

unequal protection for employees 

depending on whether a collective 

bargaining agreement is in place or not. 

An exception would also be a 

cumbersome and unduly complex 

provision to enforce. 

While OSHA does not believe there is 

a need or sound rationale for providing 

an exception to employers whose 

employees are represented under a 

collective bargaining agreement, the 

Agency does not want to cause undue 

disruption to existing collective 

bargaining agreements. Therefore, as 

explained in the Effective Dates section 

of this preamble, the Agency has 

extended the compliance deadline for 

the standard by six months. This will 

allow some collective bargaining 

agreements to expire. In these cases 

employers and unions can renegotiate 

the contract to reflect the new realities 

imposed by the rule. In other cases, the 

six-month compliance deadline allows 

employers, employees, and employee 

representatives to either conduct midterm bargaining or otherwise come to an 

agreement concerning their methods for 

implementing the final rule. 

XI. Effect on Other OSHA Standards 

As noted above, many of OSHA’s 

existing standards specify whether or 

not the employer is required to provide 

required PPE at no cost to employees. 

Other standards are silent on the issue 

of payment. OSHA is setting forth 

clearly in a note to the final rule that 

when an employer payment provision 

in another OSHA standard specifies 

whether or not the employer must pay 

for specific equipment, the payment 

provision of the other standard shall 

prevail over the provision in this final 

rule. 

This rule is meant to apply to all 

OSHA standards requiring PPE. This 

includes the general employer payment 

requirement included in the final rule, 

in addition to the exceptions given. For 

other standards that already require 

employers to provide a certain type of 

PPE at no cost, this final rule ‘‘amends’’

those standards to include the 

exceptions for employee-owned PPE, 

replacement PPE, etc. Thus, this final 

rule must be read in concert with the 

other standards that require employer 

payment for PPE. It is only in those 

instances where another standard 

specifically addresses an aspect of PPE 

payment that is also specifically 

addressed in this final rule, that the 

provisions of the other standard govern. 

For example, if an OSHA health 

standard states only that employers 

must provide PPE ‘‘at no cost’’ to 

employees, and includes no exceptions 

to that requirement, the exceptions in 

this final rule would apply to employers 

and employees performing work 

covered by that standard. Conversely, if 

another OSHA standard includes ‘‘at no 

cost’’ language and specifically requires 

employers to pay for all replacement 

PPE—regardless of whether the PPE was 

lost or intentionally damaged—that 

other OSHA standard would govern an 

employer’s obligation with respect to 

replacement PPE, as opposed to this 

final rule. 

A question naturally arises regarding 

future rulemakings and how PPE 

payment will be addressed when a 

rulemaking has PPE requirements. 

Generally, OSHA intends that future 

rules with PPE requirements will 

require employers to provide the PPE at 

no cost to employees (with exceptions) 

in accord with its findings in this rule. 

However, it is difficult, if not 

impossible, to predict all the PPE issues 

and arguments that may arise in future 

rulemakings, and the specific PPE 

payment requirements that may be 

appropriate for those rules. It is entirely 

possible that some item for which 

payment is required under § 1910.132(h) 

would be determined as exempted from 

payment, and similarly, an item 

exempted from payment under 

§ 1910.132(h) could be subject to 


jlentini on PROD1PC65 with RULES3
64370 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

employer payment under some future 

standard. 

By adding a note in the regulatory text 

of the various standards, however, if 

OSHA decides to take a different 

position on PPE payment in a future 

rulemaking, it will not need to make a 

parallel change to the regulatory 

language of the relevant PPE payment 

standard (general industry, 

construction, shipyard, marine 

terminals, or longshore) set forth in this 

final rule. OSHA believes that this 

approach is more flexible and will be 

clearer to the regulated public. 

In the preamble to the proposed rule, 

OSHA listed many of the OSHA 

standards that include provisions 

requiring the use of PPE. For ease, 

OSHA is providing a similar list below. 

Some of these standards specifically 

include ‘‘at no cost’’ language and some 

do not. Employers need to carefully 

review their obligations under the 

standards that apply to them. 

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE 

29 CFR 1910, General Industry 

1910.28 ................ Safety requirements for scaffolds. 

1910.66 ................ Powered platforms for building maintenance. 

1910.67 ................ Vehicle-mounted elevating and rotating work platforms. 

1910.94 ................ Ventilation. 

1910.95 ................ Occupational noise exposure. 

1910.119 .............. Process safety management of highly hazardous chemicals. 

1910.120 .............. Hazardous waste operations and emergency response. 

1910.132 .............. General requirements (personal protective equipment). 

1910.133 .............. Eye and face protection. 

1910.134 .............. Respiratory protection. 

1910.135 .............. Occupational Head protection. 

1910.136 .............. Occupational foot protection. 

1910.137 .............. Electrical protective equipment. 

1910.138 .............. Hand protection. 

1910.146 .............. Permit-required confined spaces. 

1910.156 .............. Fire brigades. 

1910.157 .............. Portable fire extinguishers. 

1910.160 .............. Fixed extinguishing systems, general. 

1910.183 .............. Helicopters. 

1910.218 .............. Forging machines. 

1910.242 .............. Hand and portable powered tools and equipment, general. 

1910.243 .............. Guarding of portable power tools. 

1910.252 .............. General requirements (welding, cutting and brazing). 

1910.261 .............. Pulp, paper, and paperboard mills. 

1910.262 .............. Textiles. 

1910.265 .............. Sawmills. 

1910.266 .............. Logging operations. 

1910.268 .............. Telecommunications. 

1910.269 .............. Electric power generation, transmission and distribution. 

1910.272 .............. Grain handling facilities. 

1910.333 .............. Selection and use of work practices. 

1910.335 .............. Safeguards for personnel protection. 

1910.1000 ............ Air contaminants. 

1910.1001 ............ Asbestos. 

1910.1003 ............ 13 carcinogens, etc. 

1910.1017 ............ Vinyl chloride. 

1910.1018 ............ Inorganic Arsenic. 

1910.1025 ............ Lead. 

1910.1026 ............ Chromium (VI). 

1910.1027 ............ Cadmium. 

1910.1028 ............ Benzene. 

1910.1029 ............ Coke oven emissions. 

1910.1030 ............ Bloodborne pathogens. 

1910.1043 ............ Cotton dust. 

1910.1044 ............ 1,2-dibromo-3-chloropropane. 

1910.1045 ............ Acrylonitrile. 

1910.1047 ............ Ethylene oxide. 

1910.1048 ............ Formaldehyde. 

1910.1050 ............ Methylenedianiline. 

1910.1051 ............ 1,3-Butadiene. 

1910.1052 ............ Methylene chloride. 

1910.1096 ............ Ionizing radiation. 

1910.1450 ............ Occupational exposure to chemicals in laboratories. 

29 CFR 1915, Shipyards 

1915.12 ................ Precautions and the order of testing before entering confined and enclosed spaces and other dangerous atmospheres. 

1915.13 ................ Cleaning and other cold work. 

1915.32 ................ Toxic cleaning solvents. 

1915.33 ................ Chemical paint and preservative removers. 

1915.34 ................ Mechanical paint removers. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64371 

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued 

1915.35 ................ Painting. 

1915.51 ................ Ventilation and protection in welding, cutting and heating. 

1915.53 ................ Welding, cutting and heating in way of preservative coatings. 

1915.73 ................ Guarding of deck openings and edges. 

1915.77 ................ Working surfaces. 

1915.135 .............. Powder actuated fastening tools. 

1915.153 .............. Eye and face protection. 

1915.152 .............. General requirements. 

1915.154 .............. Respiratory Protection. 

1915.155 .............. Head protection. 

1915.156 .............. Foot protection. 

1915.157 .............. Hand and body protection. 

1915.158 .............. Lifesaving equipment. 

1915.159 .............. Personal fall arrest systems (PFAS). 

1915.160 .............. Positioning device systems. 

1915.504 .............. Fire watches. 

1915.505 .............. Fire response. 

1915.1001 ............ Asbestos. 

1915.1026 ............ Chromium (VI). 

29 CFR 1917, Marine Terminals 

1917.22 ................ Hazardous cargo. 

1917.23 ................ Hazardous atmospheres and substances. 

1917.25 ................ Fumigants, pesticides, insecticides and hazardous waste. 

1917.26 ................ First aid and lifesaving facilities. 

1917.49 ................ Spouts, chutes, hoppers, bins, and associated equipment. 

1917.73 ................ Terminal facilities handling menhaden and similar species of fish. 

1917.91 ................ Eye and face protection. 

1917.92 ................ Respiratory protection. 

1917.93 ................ Head protection. 

1917.94 ................ Foot protection. 

1917.95 ................ Other protective measures. 

1917.118 .............. Fixed ladders. 

1917.126 .............. River banks. 

1917.152 .............. Welding, cutting and heating (hot work). 

1917.154 .............. Compressed air. 

29 CFR 1918, Safety and Health Regulations for Longshoring 

1918.85 ................ Containerized cargo operations. 

1918.88 ................ Log operations. 

1918.93 ................ Hazardous atmospheres and substances. 

1918.94 ................ Ventilation and atmospheric conditions. 

1918.101 .............. Eye and face protection. 

1918.102 .............. Respiratory protection. 

1918.103 .............. Head protection. 

1918.104 .............. Foot protection. 

1918.105 .............. Other protective measures. 

29 CFR 1926, Safety and Health Regulations for Construction 

1926.28 ................ Personal protective equipment. 

1926.52 ................ Occupational noise exposure. 

1926.55 ................ Gases, vapors, fumes, dusts, and mists. 

1926.57 ................ Ventilation. 

1926.60 ................ Methylenedianiline. 

1926.62 ................ Lead. 

1926.64 ................ Process safety management of highly hazardous chemicals. 

1926.65 ................ Hazardous waste operations and emergency response. 

1926.95 ................ Criteria for personal protective equipment. 

1926.96 ................ Occupational foot protection. 

1926.100 .............. Head protection. 

1926.101 .............. Hearing protection. 

1926.102 .............. Eye and face protection. 

1926.103 .............. Respiratory protection. 

1926.104 .............. Safety belts, lifelines and lanyards. 

1926.105 .............. Safety nets. 

1926.106 .............. Working over or near water. 

1926.250 .............. General requirements for storage. 

1926.300 .............. General requirements (Hand and power tools). 

1926.302 .............. Power-operated hand tools. 

1926.304 .............. Woodworking tools. 

1926.353 .............. Ventilation and protection in welding, cutting and heating. 

1926.354 .............. Welding, cutting and heating in way of preservative coatings. 


jlentini on PROD1PC65 with RULES3
64372 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

TABLE XI–1.—OSHA STANDARDS THAT REQUIRE PPE—Continued 

1926.416 .............. General requirements (Electrical). 

1926.451 .............. General requirements (Scaffolds). 

1926.453 .............. Aerial lifts. 

1926.501 .............. Duty to have fall protection. 

1926.502 .............. Fall protection systems criteria and practices. 

1926.550 .............. Cranes and derricks. 

1926.551 .............. Helicopters. 

1926.605 .............. Marine operations and equipment. 

1926.701 .............. General requirements (Concrete and masonry construction). 

1926.760 .............. Fall protection (Steel erection). 

1926.800 .............. Underground construction. 

1926.951 .............. Tools and protective equipment. 

1926.955 .............. Overhead lines. 

1926.959 .............. Lineman’s body belts, safety straps, and lanyards. 

1926.1053 ............ Ladders. 

1926.1101 ............ Asbestos. 

1926.1126 ............ Chrome (IV). 

1926.1127 ............ Cadmium. 

XII. Miscellaneous Issues 

The vast majority of the comments 

received from various parties during the 

rulemaking process have been answered 

in other sections of the preamble 

relating to the specific PPE payment 

issues raised. However, some 

commenters raised a number of issues 

that do not deal directly with PPE 

payment, but rather with aspects of 

rulemaking procedure, OSHA’s 

underlying analysis supporting the 

rulemaking, or other issues related to 

PPE use. OSHA addresses those 

comments below. 

A. Procedural Issues 

In developing this final rule, OSHA 

compiled an extensive rulemaking 

record. It received hundreds of 

comments on the proposal published in 

1999, conducted four days of hearings, 

and gave interested parties four months 

to file post-hearing comments and 

briefs. Subsequently, on July 8, 2004, 

OSHA published a notice to re-open the 

record. The Agency solicited comment 

on how the final rule should address 

PPE that is customarily provided by 

employees (69 FR 41221). OSHA 

received over 100 comments on this 

issue. OSHA carefully reviewed and 

analyzed the comments and information 

provided in developing the final rule. 

Despite this, some commenters 

questioned a few aspects of the 

procedures OSHA used in developing 

the proposed rule, as well as the quality 

of the information and data relied on by 

the Agency. OSHA addresses these 

comments below. 

1. Expert Panel 

In 1998, OSHA sponsored an expert 

panel of representatives from industry, 

labor, insurance companies, and safety 

equipment manufacturers and 

distributors to gather information about 

patterns of PPE use and payment. Based 

on the information provided by the 

panel and OSHA’s enforcement 

experience, the Agency provided 

quantitative estimates of the difference 

in PPE usage when employers purchase 

the PPE versus when employees 

purchase. 

A few commenters raised concerns 

about OSHA’s reliance on the 

information provided by the panel of 

experts (See Exs. 12: 173, 188, 189). The 

Pacific Maritime Association (PMA) and 

United Parcel Service (UPS) both argued 

that the panel’s activities were 

conducted in violation of the Federal 

Advisory Committee Act (‘‘FACA’’), 5 

U.S.C. app. section 1 et seq. (Ex. 12: 173, 

189). These comments stated that the 

panel ‘‘[p]rovided information and 

discussed employer payment of 

personal-PE, which * * * falls within 

FACA’s coverage of a ‘[p]anel * * * 

established or utilized by one or more 

agencies, in the interest of obtaining 

advice or recommendations * * *’ ’’

(Ex. 12: 173, 189). Pursuant to FACA, 

notice of advisory committee meetings 

is to be published in the Federal 

Register, and such meetings are to be 

made open to the public (5 U.S.C. app. 

section 10(a)). 

These commenters misunderstand the 

scope of FACA’s coverage and the role 

played by the expert panel in the 

rulemaking process. FACA does not 

apply to the expert panel described 

above. As explained in the regulations 

issued by the General Services 

Administration (GSA) to administer 

FACA, the statute does not apply to 

‘‘[a]ny group that meets with a Federal 

official(s) where advice is sought from 

the attendees on an individual basis and 

not from the group as a whole’’ (41 CFR 

102–3.40(e). Also excluded from FACA 

is ‘‘[a]ny group that meets with a 

Federal official(s) for the purpose of 

exchanging facts or information’’ (41 

CFR 102.3.40(f)). 

In Public Citizen v. U.S. Dept. of 

Justice, the Supreme Court examined 

the reach of FACA and concluded that 

the statute’s definition of ‘‘advisory 

committee’’ ‘‘[a]ppears too sweeping to 

be read without qualification’’ (Public 

Citizen v. U.S. Dept. of Justice, 491 U.S. 

440, 465 (1989). The Court further 

emphasized that ‘‘[w]here the literal 

reading of a statutory term would 

‘compel an odd result,’ * * *we must 

search for other evidence * * * to lend 

the term its proper scope’’ (Public 

Citizen, 491 U.S. at 454). The Court of 

Appeals for the DC Circuit provided 

additional guidance for determining 

whether a panel constitutes a FACA 

advisory committee. 

The point, it seems to us, is that a group 

is a FACA advisory committee when it is 

asked to render advice or recommendations, 

as a group, and not as a collection of 

individuals * * * [C]ommittees bestow *

* *various benefits only insofar as their 

members act as a group. The whole, in other 

words, must be greater than the sum of the 

parts. Thus, an important factor in 

determining the presence of an advisory 

committee becomes the formality and 

structure of the group (Ass’n of Am. 

Physicians and Surgeons, Inc. v. Clinton, 997 

F.2d 898, 913–14 (DC Cir. 1993). 

OSHA assembled the expert panel for 

the purpose of gathering data, anecdotal 

evidence, and other information from 

each expert, which the Agency 

considered in drafting this rule. The 

panel was comprised of representatives 

from labor unions, employer 

associations, safety equipment 

distributors and manufacturers, and 

insurance companies. OSHA provided a 

questionnaire to the panel members so 

the Agency could learn each expert’s 

opinions on various issues related to 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64373 

13The responses are summarized in the main text 

of the Patterns of PPE Provision Final Report, and 

the complete set of responses from each expert is 

provided in Appendix A of the Report (Ex. 1). 

PPE usage.13 OSHA did not seek a 

consensus answer to each question but 

rather assessed each expert’s individual 

response to the questions. The Agency 

was interested in the range of 

experiences the different sectors had 

had with PPE. Furthermore, OSHA did 

not seek policy advice or 

recommendations from the panel but 

simply information to be used in 

developing the PPE payment rule. 

As indicated by the Court of Appeals 

for the DC Circuit, it is also important 

to consider the formality and structure 

of the panel when determining whether 

or not the panel is a FACA advisory 

committee (Ass’n of Am. Physicians and 

Surgeons, Inc., 997 F.2d at 913–14). 

Here, the members of the expert panel 

did not meet. To supplement the 

individual responses of the panel 

members, six of the eight members 

participated in one conference call with 

OSHA officials to discuss issues related 

to PPE usage, including the different 

estimates regarding levels of PPE 

provision by employers. No other 

meetings were held. Had OSHA sought 

advice or recommendations from the 

group as a whole, the Agency would 

have arranged for longer and more 

frequent discussions among panel 

members, enabling the panel to reach 

agreement and provide consensus-based 

advice. OSHA, instead, was seeking data 

and general information about PPE from 

the representatives of the different 

sectors, which the Agency weighed in 

drafting this rule. 

The same commenters raised an 

additional issue related to the 

transparency of the rulemaking process. 

The commenters stated that OSHA 

relied on information and estimates 

provided by one member of the expert 

panel who was not identified by name 

in the report on patterns of PPE usage 

(Ex. 12: 189). OSHA disagrees that it did 

not provide the public sufficient 

information to comment on the benefits 

estimates in the proposed rule. 

Pursuant to the request in the 

questionnaire submitted to the 

panelists, Dr. Jeffrey Stull provided 

estimates of the incidence of non-use or 

misuse of PPE under different payment 

schemes (See Patterns of PPE Provision 

Final Report). He estimated a 40 percent 

incidence rate of non-use or misuse of 

employee-purchased PPE and a 15 to 20 

percent incidence rate of non-use or 

misuse of employer-purchased PPE. As 

explained in the proposal, OSHA 

adopted these estimates because they 

were consistent with information 

provided by the other panelists as well 

as the Agency’s own enforcement 

experience. 

During the public hearing held on 

August 10, 1999, OSHA’s opening 

statement set forth the Agency’s belief 

that the PPE Payment rule would 

prevent thousands of injuries each year 

that result from misuse or nonuse of 

PPE when employees must purchase the 

PPE for themselves (Tr. 15). 

Additionally, in the statement, OSHA 

specifically requested comments on the 

safety advantages associated with 

employer-purchased PPE. 

We would also very much like your 

comments on the results of the PPE survey, 

which are in the Docket, and we would like 

to know whether you have evidence, either 

in qualitative or quantitative terms, showing 

that employee-owned PPE is less protective 

than employer-provided PPE. Are there, for 

example, particular instances where 

employees have jeopardized their safety and 

health to avoid the financial loss they would 

experience if they had to pay for their own 

PPE? Is there evidence to suggest that 

employees take better care of PPE that they 

themselves must purchase? Alternatively, is 

there evidence that employees neglect to take 

care of PPE paid for by their employers? (Tr. 

23). 

Following this statement, OSHA took 

questions from the public. During this 

questioning period, none of the 

attendees posed questions or expressed 

concerns about OSHA’s estimates of the 

safety advantages of employerpurchased PPE. 

During this same hearing, Dr. Stull 

testified as OSHA’s designated PPE 

expert. In accordance with the hearing 

procedures published in the Federal 

Register, Rescheduling of Informal 

Public Hearing, 64 FR 27941 (May 24, 

1999), on July 15, 1999, OSHA provided 

notice to the Docket Office of Dr. Stull’s 

intent to appear as OSHA’s expert 

witness along with his curriculum vitae 

(Ex. 13: 16). On July 23, 1999, the full 

text of Dr. Stull’s testimony was 

submitted to the Docket Office for 

review by the public (Ex. 13: 16–1). 

After his prepared testimony, Dr. Stull 

also took questions. A representative of 

the AFL–CIO asked for specific data 

regarding the frequency of use of PPE off 

of the jobsite (Tr. 73). Subsequently, an 

attorney from the Office of the Solicitor 

asked Dr. Stull about the safety 

advantage of requiring the employer to 

pay for PPE (Tr. 80). Even though Dr. 

Stull was asked specifically to discuss 

data on PPE use and then to address the 

benefits of employer-purchased PPE, 

none of the attendees—including those 

commenters above that questioned 

OSHA’s benefits estimate—took the 

opportunity to ask the witness about 

data related to the safety benefit of 

employer-purchased PPE. 

In short, OSHA provided ample 

opportunity for the public to pose 

questions to the Agency’s 

representatives as well as the Agency’s 

designated PPE expert about the specific 

figures used in its benefits analysis, but 

none did so. Furthermore, no 

commenters offered alternative point 

estimates of the safety benefits of 

employer payment for PPE. The 

rulemaking process and OSHA’s 

analyses were transparent. The public 

was not deprived of the opportunity to 

comment or question the Agency’s 

benefits analysis. 

2. Data Quality 

The Society for Human Resource 

Management (SHRM) expressed concern 

about the quality of the data that OSHA 

relied on in performing the benefits 

estimate in the proposal, stating ‘‘SHRM 

questions whether the proposed * * * 

rule will significantly advance 

workplace safety since it is not shown 

to be based upon sound scientific 

studies nor is it established that the data 

was gathered pursuant to the Data 

Quality Act requirements’’ (46: 43). 

The Department of Labor’s 

‘‘Guidelines for Ensuring and 

Maximizing the Quality, Objectivity, 

Utility, and Integrity of Information 

Disseminated by the Department of 

Labor’’ (Guidelines) (Available at 

DOL.gov at http://www.dol.gov/cio/ 

programs/InfoGuidelines/ 

InfoQualityGuidelines.pdf) establish 

Departmental guidance for ensuring that 

the quality of information disseminated 

by the Department meets the standards 

of quality, including objectivity, utility, 

and integrity. The Guidelines also 

contain specific principles for agencies 

to follow when analyzing safety and 

health risks. While much of the 

information used in the final rule was 

developed prior to publication of the 

guidelines, the information was 

gathered using techniques that meet the 

guidelines. 

Contrary to the suggestion of SHRM, 

the information presented to support the 

safety benefits of the final rule fully 

complies with the Guidelines. The 

benefits analysis in the final rule is 

based on the best available evidence. In 

addition to the expert panel described 

above, in 1999, OSHA engaged Eastern 

Research Group (ERG) to perform a 

large-scale telephone survey to collect 

industry-specific data describing PPE 

usage patterns and the extent to which 

employers pay for OSHA-required PPE. 

The results were published in the PPE 

Cost Survey report on June 23, 1999 and 

made available in the Docket Office (Ex. 


jlentini on PROD1PC65 with RULES3
64374 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

14). OSHA subsequently published a 

Federal Register notice asking the 

public to comment on the survey results 

(64 FR 33810–33813, June 24, 1999). 

ERG obtained complete responses 

from 3,722 respondents. Three basic 

types of information were collected 

about eight categories of PPE: (1) If the 

PPE is used at the respondent’s 

establishment; (2) how many employees 

use the PPE; and (3) who pays for the 

PPE (Ex. 12: 14). The survey data 

provide industry-specific estimates of 

the numbers of employees and 

establishments currently using each PPE 

type. The data also provide industryspecific estimates of the numbers of 

employees and establishments at which 

employers pay the full cost of the 

equipment, the numbers at which 

employees pay for the equipment, and 

the numbers at which employers and 

employees share the costs of PPE. 

OSHA relied heavily on this data, as 

well as the extensive record that was 

compiled during the rulemaking and 

updated Bureau of Labor Statistics data, 

to develop the final rule and to 

determine the costs, benefits, and 

economic impacts of the rule. This is 

precisely the type of information the 

Guidelines require agencies to utilize 

when evaluating risks. The Guidelines 

specifically require agencies to use 

‘‘[d]ata collected by accepted methods 

or best available methods’’ when 

analyzing safety and health risks. 

Accepted methods include the 

‘‘[t]estimony of experts’’ and ‘‘relevant 

analyses’’ of pertinent information or 

data (Guidelines, p. 16). OSHA is 

confident that it has relied on the best 

available information in developing this 

rule and that the information presented 

complies with the Guidelines. 

B. Turning in Old Equipment 

A few commenters raised the issue of 

‘‘exchange systems,’’ where an 

employee is required to turn in PPE that 

is no longer functional when the 

employer provides replacement PPE 

(See, e.g., Exs. 12: 65, 167, 183). The 

SCA commented that: 

Many shipyards require employees to turn 

in their non-serviceable PPE upon receiving 

new equipment. Employer review of used 

PPE has proven to reduce injury at shipyards 

by providing employers insight into how 

equipment is used by examining what parts 

of the equipment are worn. This practice 

allows employers to identify poor technique 

and institute engineering controls that can 

reduce the incidence of injury. SCA 

recommends that the rule protect the 

employer’s right to continue this practice (Ex. 

12: 65). 

OSHA does not prohibit SCA’s 

practice and OSHA does not object to 

employers requiring employees to turn 

in employer-owned, worn-out PPE 

when issuing replacement PPE. 

Analyzing the PPE to look for wear 

patterns or other characteristics that can 

help implement improved engineering 

controls or obtain more suitable PPE 

would be a useful method for improving 

an employer’s safety and health 

program. However, the Agency notes 

that these types of exchange programs 

need to be set up so that employees are 

not denied needed replacement PPE. 

For example, if an employee’s PPE is 

damaged due to events occurring at 

work, the employer cannot deny 

replacement by establishing a work rule 

that turned-in equipment must be in 

serviceable condition. Such a policy 

would subvert the final employer 

payment rule and the underlying PPE 

requirements. 

C. Guidance To Assist Employers With 

PPE Issues 

The SGIA raised the issue of 

employers who have questions about 

OSHA’s PPE requirements, suggesting 

that: 

OSHA needs to provide guidance and other 

training aids to assist employers in the 

proper selection, care and use of PPE. The 

vast majority of printers are very small 

businesses. In fact 80% having less than 20 

employees, and do not possess the resources 

to undertake a proper evaluation themselves 

or hire an outside consultant to do it for 

them. OSHA needs to provide basic and 

useful information on this subject (Ex. 12: 

116). 

OSHA agrees that training aids are 

needed to help employers, and most 

especially smaller employers, with a 

variety of PPE issues, and the Agency 

has various resources and materials 

available to help provide PPE 

information. OSHA has two Internet 

topics pages devoted to PPE, one for 

construction and another for general 

industry employers (look for ‘‘personal 

protective equipment’’ under the 

alphabetic index at http:// 

www.osha.gov). These include several 

resources, including the OSHA PPE 

standards, electronic aids called e-tools 

that will help employers with selection 

and other PPE issues, and links to other 

PPE resources on the Internet. OSHA 

also provides Publication 3151—

Personal Protective Equipment to 

employers and employees free of charge. 

The publication discusses PPE hazard 

assessment and selection, employee 

training, and various types of PPE that 

may be needed to protect employees. 

Additionally, PPE is mentioned in many 

of OSHA’s hazard specific publications, 

such as those dealing with bloodborne 

pathogens and chemical hazards. 

While OSHA has provided the public 

with a variety of resources to help them 

with PPE selection, training, and use, 

the Agency will continue to look for 

ways to assist employers and employees 

with PPE issues. The Agency will 

continue to provide information on the 

Internet, and welcomes any specific 

suggestions on products or training aids 

that would assist employers and 

employees with PPE issues. However, 

the ultimate responsibility for ensuring 

the PPE is adequate rests with the 

employer. 

D. Transmission of Disease Through 

Shared Equipment 

The Framing Contractors Association 

expressed a concern about PPE that is 

shared among various employees and 

the potential for contaminants or 

infectious disease to be passed from one 

employee to the next. Their specific 

comment was ‘‘We are also concerned 

that if equipment is shared or reused by 

another person, there could be a 

potential for the transfer of some 

diseases or possible contagious 

infections caused by the poor hygienic 

conditions of sweat bands in the hard 

hats or contaminates on eye glasses’’

(Ex. 12: 207). 

This is a long standing concern that 

occurs when PPE is used by more than 

one employee. That is why OSHA’s 

standards require PPE to be kept in a 

sanitary condition. The standards do not 

prohibit the use of shared PPE; therefore 

it is critical that employers ensure that 

PPE is sanitized before it is provided to 

another employee. 

E. Taking Home Contaminants on 

Clothing 

The Building and Construction Trades 

Department noted that an employee’s 

family can be exposed to dangerous 

materials when an employee takes them 

home on his or her PPE, noting: 

[b]ecause employers, employees, and 

OSHA do not always recognize the inherent 

hazards present in construction work, 

construction workers routinely expose their 

families unknowingly to contaminants from 

the job. Sometimes, these contaminants cause 

adverse health effects to their families * * * 

If employers provide and control the use of 

PPE effectively, these hazards could be 

significantly reduced or eliminated (Ex. 12: 

218). 

OSHA agrees that employees and 

their families can be exposed to 

hazardous substances inadvertently 

removed from the worksite on an 

employee’s PPE and many of OSHA’s 

substance specific standards require 

employers to prevent such 

contamination by controlling workplace 

clothing, providing showers, and 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64375 

14With a performance-oriented approach, the 

Agency identifies a goal to be achieved but does not 

specify the means by which it must be achieved, in 

order to provide employers flexibility. See, e.g., 

Secretary of Labor v. Pike Elec., No. O.S.H.R.C. 06–

0166, 2007 WL 962965, at *10 (O.S.H.R.C. Feb. 5, 

2007) (‘‘The Secretary promulgated § 1910.269(n)(3) 

as a performance standard, in which she specifies 

the hazard to be protected against while giving the 

employer some leeway in achieving the desired 

result.’’) 

separate dressing areas. However, there 

is not a comprehensive requirement for 

employers to control all hazardous 

substances in this manner. The Agency 

recommends that employers take every 

effort to limit the spread of chemical 

contaminants through these and other 

mechanisms. 

XIII. Other Alternatives Considered 

During the Rulemaking Process 

During the development of the final 

standard, OSHA considered four 

alternatives: (1) An exception for PPE 

that is personal in nature and 

customarily worn off the job; (2) an 

exception for PPE used as a tool of the 

trade; (3) requiring payment for all PPE 

without exception; and (4) exempting 

high-turnover industries. For the 

reasons discussed below, OSHA rejected 

these alternative approaches. 

A. Requiring Employers To Pay for All 

PPE Except PPE the Employer 

Demonstrated Was Personal in Nature 

and Customarily Worn Off the Job 

The proposed rule specifically 

requested comment on alternative 

regulatory text that would have required 

employers to pay for all PPE except 

equipment that the employer 

demonstrated was personal in nature 

and customarily used off the job (64 FR 

15416). A few commenters reacted 

favorably to this performance language 

alternative14. The National Rural 

Electric Cooperative Association 

supported the alternative approach, 

stating that ‘‘[c]learly, any attempt to list 

all PPE available for exception on a 

personalized, off-the-job rationale is 

doomed to failure * * * [A]ny 

clarification of the general rule should 

be by way of restating clearly the 

general rule and the traditional 

exception available for all PPE that is 

personal and able to be used off the job’’

(Ex. 12: 221). Another commenter 

echoed this opinion, stating that ‘‘OSHA 

may be starting down a slippery slope 

by excluding certain items considered 

personal in nature and not others. There 

are numerous types of PPE including 

gloves, clothing, hearing protection 

devices, footwear other than safety-toe 

footwear, which can be considered 

personal in nature’’ (Ex. 12: 134). 

Finally, the ASSE stated that ‘‘[i]f the 

Agency becomes involved in trying to 

prescribe individual rules for PPE such 

as [for] welders, lumber industry 

workers, etc. * * * [we] foresee the 

agency eventually being in the quagmire 

of PPE deviations, exceptions, and 

directives’’ (Ex. 12: 110). 

A representative of the UAW testified 

in opposition to the performance 

oriented approach: 

The notion that certain PPE items are 

personal in nature and customarily used off 

the job is vague, overbroad, ambiguous, hard 

to define, and will generate major difficulties 

in compliance and enforcement. Molded 

earplugs, for example, are more personal than 

shoes and may also be worn to the 

employee’s benefit off the job. * * * The 

UAW believes the alternative regulatory text 

on exceptions is worse than the proposed 

text. * * * However, if the agency insists 

on exceptions in the final rule, we would 

prefer the proposed language which would 

very specifically identify the excepted PPE 

rather than the alternative text (Tr. 242–244). 

This view was shared by others as well 

(See, e.g., Exs. 12: 230, 24A, 24B; Tr. 

281–282, Tr. 344). In its written 

comments, ISEA stated that the 

proposed alternative would be ‘‘difficult 

to define and interpret,’’ and that 

exempting PPE that is personal in 

nature is ‘‘oxymoronic’’ given that PPE 

must fit the individual employee in 

order to be effective against hazards (Ex. 

12: 230). 

OSHA agrees with these commenters 

that the proposed alternative 

performance language is too vague. It 

provides insufficient guidance to 

employers and employees as to what 

PPE the employer should pay for in a 

particular circumstance. Furthermore, it 

would be difficult for compliance 

officers attempting to enforce the rule, 

since they would have no clear basis for 

evaluating the employer’s determination 

that the exception was met in a given 

case. OSHA is concerned that the 

vagueness of the alternative text would 

result in less protection for employees. 

Without clearly specifying the parties’’

responsibilities, safety precautions may 

not be taken. 

In contrast, the final rule sets forth 

clearly the PPE for which the employer 

is not required to pay. These exceptions 

are supported by the rulemaking record. 

Employers and employees will clearly 

understand the PPE that must be paid 

for by employers and the PPE for which 

employers and employees may negotiate 

payment. As discussed above, OSHA 

believes this clarity will result in even 

greater benefits for employers and 

employees. 

B. Adding an Exception for PPE Meeting 

Criteria Reflecting Its Use as a Tool of 

the Trade 

OSHA also considered adding a 

specific exemption from the employer 

payment rule for PPE considered ‘‘tools 

of the trade,’’ where the employer could 

demonstrate that (1) the PPE could only 

be used by one employee for reasons of 

customized fit or hygiene, and (2) it is 

customary in the industry for employees 

to select and pay for the PPE. In 

response to OSHA’s 1999 proposal, 

several commenters argued that 

employers should not be required to pay 

for PPE items that employees now 

customarily purchase themselves and 

take with them from job to job. 

After reviewing these comments, 

OSHA determined that more 

information was needed on the nature 

and extent of such customary practices 

to fully evaluate the impact of a final 

rule on various industries. OSHA 

reopened the rulemaking record on July 

8, 2004 and solicited comment on 

whether and how a final rule should 

address situations where PPE has been 

customarily provided by employees (69 

FR 41221). The Agency received nearly 

100 written comments in response to 

the notice to reopen the record. OSHA 

received a variety of opinions on tools 

of the trade, however most stakeholders 

considered the idea of exempting 

certain tools of the trade from an 

employer payment requirement as 

problematic. 

Commenters representing labor 

interests generally opposed providing 

an exception from the employer 

payment requirement for tools of the 

trade. To the extent that any particular 

tool of the trade is PPE, these 

commenters stated that employers 

should be responsible for providing and 

paying for such equipment. They also 

cautioned that any effort to classify PPE 

as tools of the trade was inappropriate 

and would lead to confusion (Exs. 45: 1, 

18, 21, 25, 32, 53). James August of 

AFSCME wrote: 

Further discussion on the issue of tools of 

the trade will cloud rather than clarify the 

issues of what constitutes PPE and 

employers’ duty to provide safe working 

conditions. The term tools of the trade is 

inappropriate for OSHA to use in the context 

of a rule requiring employers to pay for most 

PPE. Tools of the trade means equipment that 

is used to perform a specific job or task. 

Personal protective equipment, by contrast, is 

not used to accomplish a task, but rather to 

protect the worker from the hazards that are 

associated with the job (Ex. 45: 1). 

ISEA expressed a similar view, stating 

that ‘‘[a] tool enables a worker to 

perform a task. PPE protects the worker 

by using the tool’’ (Ex. 46: 31). 


jlentini on PROD1PC65 with RULES3
64376 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

Some employer representatives 

commented with similar views. These 

representatives stated that what is 

considered a tool of the trade varies 

greatly by industry and even within an 

industry. Therefore, OSHA would have 

a difficult time specifically identifying, 

in a single rule, all of the different types 

of PPE that fall into this category (Exs. 

45: 3, 17; 46: 1, 3, 9, 13). Many employer 

representatives, however, believed that 

some PPE should be excluded from an 

employer payment requirement if the 

PPE meets certain criteria, including 

some criteria that are typically used to 

describe tools of the trade. For example, 

ORC stated: 

ORC views the criteria that ‘‘the PPE is 

expected to be used by only one employee for 

reasons of hygiene or personal fit’’ as 

reasonable. ORC also views the concept of 

working for multiple employers as 

reasonable. Equipment that must be fitted to 

an individual worker or which becomes, 

through use, unsuitable for use by another 

worker for hygienic reasons, coupled with a 

worker’s employment by, and frequent 

movement between, several different 

employers, are criteria which argue against 

the general requirement that each employer 

has an absolute responsibility to provide and 

pay for all PPE (Ex. 46: 47). 

ORC recommended that OSHA include 

a general exemption for PPE meeting 

these criteria, but that OSHA not 

include an exemption based on 

customary industry practice, as that 

would compromise the clarity of the 

rule. 

Two other representatives described 

common practices in their industries 

with respect to payment for PPE. The 

International Association of Drilling 

Contractors stated that employees in the 

oil and gas well industry provide their 

own hard hats, safety boots, gloves, 

coveralls (work clothes), general-use 

work gloves, winter protection for cold 

weather and rain gear, including rubber 

boots, for wet weather (Ex. 46: 30). A 

written submission from the Tree Care 

Industry Association stated that ‘‘[i]t is 

a longstanding practice for the employee 

to show up for work in boots and other 

work attire that he or she has paid for’’

(Ex. 46: 44). The commenters also 

explained that employees frequently 

move to perform work for multiple 

employers. 

Two representatives of electric 

utilities stated that it was common 

practice for employers to require 

employees to provide climbing 

equipment including lineman’s belts, 

leather work gloves, gaffs, hooks, and 

boots (Exs. 45: 37, 42). Several other 

general industry employers stated that it 

was customary for employees to provide 

certain types of PPE and supported an 

exemption from employer payment for 

those items (Exs. 45: 28, 30, 52; 46: 5, 

12). A submission from a large 

telecommunications company argued 

that while ‘‘personal’’ items such as 

gloves, work clothes, and footwear 

should be exempt from a payment 

requirement, all other PPE, including 

climbing equipment, should be paid for 

by the employer (Ex. 45: 13). 

OSHA also received many comments 

from representatives of the construction 

industry who supported an exemption 

for PPE considered to be tools of the 

trade. However, these comments 

indicate that the kinds of PPE regarded 

as tools of the trade vary considerably 

among different segments of the 

construction industry. One contractor 

who builds concrete shells for high-rise 

structures stated that employees hired 

as carpenters are required to have their 

own 4-point harness system, 2-legged 

lanyards, and positioning chains or 

devices (Ex. 45: 5). A representative 

from the NAHB wrote: 

There are several articles of PPE that are 

considered ‘‘tools of the trade’’ in residential 

construction. These include: hard hats, safety 

glasses, work boots/shoes, and general duty 

gloves. There are several reasons why these 

articles of PPE are thought to be tools of the 

trade and should be excluded. First, it is 

customary for workers to bring these items to 

the job-they are normally supplied (and paid 

for) by workers and are carried with them 

from job to job or from employer to employer. 

Workers are typically required to supply 

their own tools and equipment for the job 

they are performing and PPE is considered 

just another tool in their toolbox (Ex. 45: 26). 

According to a representative of the 

Independent Electrical Contractors, Inc., 

practices vary among establishments 

engaged in electrical construction, with 

some employers paying for PPE while 

others require employees to provide 

hard hats, safety glasses, gloves, boots, 

and appropriate clothing (Ex. 45: 36). 

Several representatives of the 

maritime industry supported an 

exemption for welders’’ PPE, indicating 

that it is customary in the industry for 

welders to provide their own PPE. A 

representative from the SCA stated: 

SCA believes that safety equipment 

considered to be tools of the trade should be 

excluded from the employer requirement for 

payment. SCA members consider Personal 

Protective Equipment (PPE) and tools of the 

trade to be two separate categories of 

equipment. PPE is safety equipment provided 

by the employer that generally can be 

sanitized and reissued. A tool of the trade is 

viewed as a piece of safety equipment that is 

highly personal in nature and generally can 

not be used by another employee * * * 

Tools of the trade for welding operations, 

such as face shields/goggles, fire resistant 

shirts/jackets, sleeves and leather gloves have 

predominantly been provided by the 

employee because of the equipment’s 

personal nature. The industry considers these 

to be tools of the trade because it is neither 

feasible for a different employee to wear the 

welders’’ gloves and leathers each day for 

hygienic reasons, nor is it feasible that upon 

resigning from the position that an employee 

will leave the leathers behind to be worn by 

another individual. (Ex. 46: 32). 

A submission from Northrop Grumman 

Ship Systems (NGSS) reflected a similar 

view. With respect to welding leathers, 

welding jackets, welding sleeves and 

gloves and welding shields, NGSS 

stated: 

[t]his equipment presents classic examples 

of ‘‘tools of the trade,’’ which employees 

traditionally bring with them to the job and 

take with them when they leave it. There is 

good reason for this as these items absorb 

perspiration and come into direct contact 

with the employee’s skin. As such, this 

equipment would be unsuitable for reissue to 

another employee. 

Similarly, other items such as hardhats and 

safety glasses are individual and personal in 

nature since they must be adjusted to 

conform to the employee’s physical 

dimensions. They, too, must be sanitized and 

repaired prior to reissue. With approximately 

20,000 employees, NGSS would incur 

exorbitant expenses. Moreover, the 

traditionally high turnover rate intrinsic to 

shipbuilding aggravates this problem (Ex. 46–

39). 

OSHA believes that a PPE payment 

rule exempting equipment meeting the 

criteria described above would fail to 

clearly indicate to employers and 

employees when PPE had to be paid for 

by employers, and would likely result in 

the Agency having to render numerous 

interpretations of the rule as it applied 

to specific situations. For example, 

while there was some agreement in the 

record that certain climbing gear and 

welding equipment were considered 

tools of the trade in some industries, the 

record reflects considerable 

disagreement as to the other types of 

PPE that are considered tools of the 

trade. 

The record also shows that PPE 

considered tools of the trade in one 

industry may not be considered tools of 

the trade in another industry. Therefore, 

while welding equipment may be 

considered tools of the trade in parts of 

the maritime industry, they may not be 

considered tools of the trade in general 

industry (e.g., manufacturing plants). 

There is also evidence in the record that 

even within the same industry, there is 

disagreement as to what is considered a 

tool of the trade. Employers would have 

great difficulty determining whether a 

particular type of PPE is considered a 

tool of the trade and whether they 

would be responsible for paying for it. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64377 

It would also be difficult for OSHA to 

verify the types of PPE that are 

customarily provided and paid for by 

employees in a given industry. These 

differences in the way that certain PPE 

is treated in specific industries makes 

this alternative impractical. 

Accordingly, OSHA believes that this 

alternative is too vague and would 

create confusion among employers and 

employees. 

C. Requiring Payment for All PPE 

Without Exception 

OSHA considered requiring 

employers to pay for all PPE, without 

any exceptions. Many commenters 

supported this alternative (See, e.g., Exs. 

12: 100, 19, 22A, 25, 26A, 37; Tr. 173–

174, Tr. 241, Tr. 320, Tr. 366, Tr. 463–

464). They argued that PPE is part of the 

hierarchy of controls. Therefore, just as 

OSHA would not ask an employee to 

pay for engineering or administrative 

controls, the Agency should not expect 

employees to pay for any PPE. For 

example, the AFSCME strongly objected 

to any exceptions, stating: 

According to OSHA’s own reasoning, there 

is no rational basis for distinguishing the use 

of PPE from other types of controls, and the 

responsibility of paying for the protection 

should, in each case, rest with the employer. 

Safety-toe protective footwear and safety 

eyewear are clearly forms of PPE. Therefore, 

employers should be required to pay for 

safety-toe footwear and safety eyewear. 

Employers should be required to pay for such 

protective foot and eyewear regardless of 

whether such footwear is worn off the jobsite (Ex. 12: 100). 

During the public hearing, Jackie 

Nowell, Director of the Occupational 

Safety and Health Department of the 

UFCW testified: 

OSHA standards are not ambiguous about 

who pays for engineering or administrative 

controls, and we don’t believe they are 

ambiguous about the payment for PPE. The 

OSH Act requires employers to provide a safe 

and healthy workplace for American 

workers. 

Again, employers are mandated to control 

hazards through a hierarchy of controls, 

preferably engineering and administrative. 

And when those fail to abate or reduce the 

hazard, then the employer is allowed to 

utilize PPE, but also to pay for it (Tr. 173–

174). 

In their post-hearing comments, the 

United Automobile, Aerospace & 

Agricultural Implement Workers of 

America (UAW) also urged OSHA to 

eliminate the proposed exemptions. 

They argued: 

The UAW believes that the employer’s 

responsibility to pay for necessary and 

required PPE is consistent with both OSHA 

law, logic and good safety practice * * * 

[M]any states already interpret their 

standards to require employers to pay for PPE 

* * * Treating PPE differently from other 

controls is illogical and violates the hierarchy 

of controls * * * OSHA’s proposal to 

continue the exemption for shoes and glasses 

is a lost opportunity to correct a previous 

error, and restore a logical scheme for 

allocating costs of protection against hazards 

(Ex. 23). 

A representative of the Teamsters stated, 

‘‘[w]e believe that all PPE required to 

protect employee health and safety 

should be paid for by the employer 

regardless of whether they are personal 

in nature and/or customarily used off 

the job’’ (Tr. 342). 

OSHA rejected this alternative for 

three main reasons. First, as explained 

in the Legal Authorities section, OSHA 

does not agree that the OSH Act can be 

read to require employers to pay for all 

PPE without exception. The Agency 

does not believe that Congress intended 

for employers to pay for the types of 

PPE exempted in the standard, such as 

everyday work clothing and weatherrelated equipment. Second, requiring 

employer payment for all PPE without 

exception would not be a cost effective 

means of protecting employees. The cost 

of requiring employers to pay for safety 

shoes, certain everyday clothing, 

weather-related protective gear, 

sunscreen, etc. would be quite high and 

OSHA believes unnecessary given 

existing practices in most industries. 

The Agency estimates that requiring 

employers to pay for protective safetytoe footwear would have added $220 

million to the cost of the final rule. 

Finally, the PPE exempted in the final 

rule is the type of PPE OSHA has 

historically exempted from employer 

payment. OSHA sees no reason based 

on the rulemaking record here, to 

deviate from its longstanding position 

that certain PPE should be excluded 

from employer payment. 

D. Exempting High-Turnover Industries 

From an Employer Payment 

Requirement 

Finally, OSHA considered exempting 

high-turnover industries from the PPE 

payment requirement. The record shows 

that one common reason that employers 

do not pay for PPE is high turnover, 

such as in situations involving day 

labor, or job- or situation-contingent 

hiring. OSHA received many comments 

expressing concern about the costs to 

employers in high-turnover industries of 

the payment requirement. 

According to the National Maritime 

Safety Association (NMSA) and the 

Pacific Maritime Association (PMA), an 

employer-payment requirement is 

impractical in a hiring hall industry 

because each employer’s work force 

changes from day to day depending 

upon its manpower needs and the 

seniority, skills and personal 

preferences of available employees (Exs. 

12–172, 12–173). The NMSA stated 

further that it was not possible to devise 

a system in which employer-purchased 

PPE could be distributed to employees 

at the beginning of a work-shift, 

collected at the end of a work-shift, and 

sanitized and redistributed to different 

employees at the beginning of the next 

shift (Ex. 12: 172). The NMSA asserted 

that employers would have no choice 

but to issue new PPE to employees 

every day at substantial expense and 

with no additional safety benefit (Id.). 

The United States Maritime Alliance 

Limited (USMX) argued that a generic 

PPE payment requirement would be 

difficult for the maritime industry given 

many employees work for multiple 

employers: 

[I]n the marine cargo handling industry, 

labor pools are often utilized to assign labor 

to a certain workplace. It is not uncommon 

for a single employee to work at a different 

employer’s facility from day to day or even 

shift to shift. As such, any standard that 

requires action, such as payment for PPE on 

an ‘‘employer’’ creates significant confusion 

in an industry where a single employee may 

have several employers. That is one reason 

why local port management associations are 

often involved in providing such equipment 

(Ex. 45: 40). 

The NAHB made a similar argument 

on behalf of its members. The NAHB 

stated that some firms process 15 to 50 

employees a week and that many of 

them quit or are terminated in a matter 

of hours. Providing new PPE to each 

new employee at a cost of $15 per 

person would be burdensome, the 

NAHB argued, and would not lead to 

greater use of the equipment (Ex. 12: 

68). A representative of the oil and gas 

drilling industry reported that the 

industry traditionally has a high 

turnover rate, with one firm reporting an 

average turnover of almost 50 percent 

(Ex. 12: 9). A firm in this industry 

maintained that the cost of providing 

three to four pairs of cotton gloves per 

week to its 4,300 well-servicing 

employees would cost $804,960 

annually and would have a significant 

economic impact (Ex. 12: 19). 

OSHA analyzed this alternative and 

determined that it was not appropriate 

to deny the benefits of the final rule to 

certain employees simply because they 

worked in industries with ‘‘high 

turnover.’’ The OSH Act does not 

contemplate exempting employers from 

their obligations to protect employees 

for that reason alone. This is 

particularly true when there is no 

evidence that the final rule will create 


jlentini on PROD1PC65 with RULES3
64378 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

feasibility problems in any of the 

industries affected. 

Furthermore, such an exemption 

would be impractical. The rulemaking 

record did not provide enough 

information for OSHA to specifically 

identify high turnover industries for 

purposes of the exemption. In 

particular, turnover depends greatly on 

size of employer, occupation, and 

geographic area. Thus, for some large 

employers in a particular industry, 

turnover may be low; however, for 

smaller employers in the same industry 

there may be extremely high turnover. 

Furthermore, in the same industry, there 

might be significant differences in 

turnover depending upon particular 

jobs. So, welders in the construction 

industry may experience great turnover, 

but crane operators may not. Finally, in 

some areas of the country, there is high 

turnover in a particular industry, but 

only moderate turnover in the same 

industry in another area of the country. 

These real differences in turnover rates 

make it difficult for OSHA to 

specifically exempt certain industries 

from an employer payment requirement. 

OSHA was also unable to identify a 

rate that it could consider ‘‘high 

turnover’’ for purposes of the 

exemption. Turnover rates vary greatly; 

they can be as low as 5–10 percent or 

as high as 200 percent a year. The 

Agency was not able to identify an 

appropriate cut-off point for high 

turnover that could be used as a basis 

for exempting industries from an 

employer payment requirement. 

Furthermore, turnover rates fluctuate 

yearly. Thus, in one year an industry 

might have a 50 percent turnover rate, 

but a 25 percent rate in the following 

year. The Agency was unable to devise 

alternative language that could account 

for these fluctuations while providing 

employers with sufficient notice of their 

compliance obligations. For all of these 

reasons, OSHA rejected this alternative. 

XIV. Legal Authority 

A. Introduction 

This rule is limited to addressing who 

must pay for the PPE that is already 

required by existing PPE standards. The 

rule does not require any new type of 

PPE to be purchased. Nor does the rule 

impose any new requirements for PPE 

use. 

The final rule is justified on two 

different bases. First, the rule is 

interpretive in that it clarifies and 

implements a pre-existing employer 

payment requirement implicit in the 

statutory scheme and the language of 

OSHA’s PPE standards. Part B of this 

section discusses these implicit 

statutory and regulatory payment 

schemes. Second, the rule is an 

ancillary provision further reducing the 

risks addressed by the existing PPE 

standards. To be justified as an ancillary 

provision, the rule need only be 

reasonably related to the PPE standards’

remedial purpose. Part C of this section 

discusses the final rule’s health and 

safety benefits. 

B. The Final Rule Codifies an Employer 

Payment Requirement Implicit in the 

OSH Act and the Wording of the 

Existing PPE Standards 

1. An Employer Payment Requirement 

Is Derived From the Statutory 

Framework 

In the Agency’s view, the final rule 

does no more than clarify a requirement 

legally implicit under the Act. The Act 

makes employers solely responsible for 

the means necessary to achieve safe and 

healthful workplaces. This includes 

financial responsibility. Employers are 

therefore responsible for providing at no 

cost to their employees the personal 

protective equipment that is required 

because of workplace hazards. 

The language of the Act and its 

framework are indicia of this 

requirement. At section 2(b) (29 U.S.C. 

651(b)), Congress declared its purpose 

and policy to ‘‘[a]ssure so far as possible 

every working man and woman in the 

Nation safe and healthful working 

conditions and to preserve our human 

resources.’’ To that end, Congress 

authorized the Agency to issue safety 

and health standards and required each 

employer to comply with the standards 

(29 U.S.C. 654(a)(2)). 

The Act defines an occupational 

safety and health standard as one which 

‘‘[r]equires * * * the adoption or use of 

one or more practices, means, methods, 

operations, or processes, reasonably 

necessary or appropriate to provide safe 

or healthful places of employment’’ (29 

U.S.C. 652(8)). Congress gave to OSHA 

broad discretion to set standards to 

prevent occupational injury and illness 

and to charge to employers the cost of 

reasonably necessary requirements. 

United Steelworkers v. Marshall, 647 

F.2d 1189, 1230–31 (DC Cir. 1980), cert. 

denied, 453 U.S. 913(1981) (Lead). 

In addition to the statute’s 

requirement that employers comply 

with standards, sections 9, 10 and 17 of 

the Act (29 U.S.C. 658, 659, 666) set out 

a detailed scheme of enforcement solely 

against employers. Atlantic and Gulf 

Stevedores, Inc. v. OSHRC, 534 F.2d 

541, 553 (3d. Cir. 1976). Sections 9(a) 

and 10(a) (29 U.S.C. 658(a), 659(a)) 

provide for the issuance of citations and 

notifications of proposed penalties only 

to employers. Section 10(a) (29 U.S.C. 

659(a)) refers only to an employer’s 

opportunity to contest a citation and 

notification of a proposed penalty. 

Section 17 (29 U.S.C. 666) provides for 

the assessment of civil monetary 

penalties only against employers. 

OSHA’s enforcement authority against 

employers—not employees—

underscores Congress’s intent to hold 

employers responsible for creating safe 

and healthful working conditions. 

This statutory scheme is further 

supported by the OSH Act’s variance 

provisions, which provide that 

employers—but not employees—may 

apply to OSHA for a temporary or 

permanent variance from compliance 

with OSHA standards. Temporary 

variances allow employers additional 

time to come into compliance with a 

standard when the employer 

demonstrates that it cannot do so by the 

effective date due to the unavailability 

of professional or technical personnel or 

materials or because of necessary 

construction or alteration of facilities 

(29 U.S.C. 655(b)(6)). Permanent 

variances provide employers with 

alternative means to protect their 

employees in lieu of specific OSHA 

standards, provided these alternative 

measures are as protective as the 

measures set forth in the relevant 

standards (29 U.S.C. 655(d)). These 

provisions recognize that employers are 

responsible for complying with, and 

paying for compliance with, OSHA 

standards and provide them flexibility 

in achieving this compliance. 

The Supreme Court confirmed that 

Congress intended employers to pay for 

compliance with safety and health 

standards. In reviewing OSHA’s cotton 

dust standard, the Court interpreted the 

legislative history as showing that 

Congress was aware of the Act’s 

potential to impose substantial costs on 

employers but believed such costs to be 

appropriate when necessary to create a 

safe and healthful working environment 

(American Textile Mfrs. Inst., Inc. v. 

Donovan, 452 U.S. 490, 519–522, 101 S. 

Ct. 2478, 2495–96, 69 L.Ed.2d 185 

(1981) (Cotton Dust). See also Forging 

Industry Ass’n. v. Secretary of Labor, 

773 F.2d 1436, 1451 (4th Cir. 1985) 

(Noise); Lead 647 F.2d at 1230–31). 

Several statements by members of 

Congress demonstrate that employers 

would be expected to bear the costs of 

compliance with OSHA standards. 

Senator Yarborough stated that ‘‘[w]e 

know the costs [of complying with the 

Act] would be put into consumer goods 

but that is the price we should pay for 

the 80 million workers in America.’’ (S. 

Rep. No. 91–1282, 91st Cong., 2d Sess. 

(1970); H.R. Rep. No. 91–1291, 91st 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64379 

Cong., 2d Sess. (1970), reprinted in 

Senate Committee on Labor and Public 

Welfare, Legislative History of the 

Occupational Safety and Health Act of 

1970, (Committee Print 1971) at 444. 

Senator Cranston stated: 

(T)he vitality of the Nation’s economy will 

be enhanced by the greater productivity 

realized through saved lives and useful years 

of labor. When one man is injured or 

disabled by an industrial accident or disease, 

it is he and his family who suffer the most 

immediate and personal loss. However, that 

tragic loss also affects each of us. As a result 

of occupational accidents and disease, over 

$1.5 billion in wages is lost each year (1970 

dollars), and the annual loss to the gross 

national product is estimated to be over $8 

billion. Vast resources that could be available 

for productive use are siphoned off to pay 

workmen’s compensation and medical 

expenses * * *. Only through a 

comprehensive approach can we hope to 

effect a significant reduction in these job 

death and casualty figures (Id. at 518–19). 

Senator Eagleton stated it even more 

clearly: ‘‘The costs that will be incurred 

by employers in meeting the standards 

of health and safety to be established 

under this bill are, in my view, 

reasonable and necessary costs of doing 

business’’ (116 Cong. Rec., at 41764, 

Leg. Hist. 1150–1151). 

Furthermore, Congress considered 

uniform enforcement against employers 

crucial because it would reduce or 

eliminate the disadvantage that a 

conscientious employer might 

experience where inter-industry or 

intra-industry competition is present. 

‘‘[M]any employers—particularly 

smaller ones—simply cannot make the 

necessary investment in health and 

safety, and survive competitively, 

unless all are compelled to do so’’ (Leg. 

Hist. at 144, 854, 1188, 1201). 

Nothing in the legislative history 

suggests that Congress intended that 

compliance costs should be borne by 

employees. Congress sought to maintain 

the standard of living of working men 

and women and did not contemplate 

that employees’ pay and benefits would 

be sacrificed to achieve safe and 

healthful workplaces. For example, the 

Senate report notes that employers are 

bound by the ‘‘general and common 

duty to bring no adverse effects to the 

life and health of their employees 

throughout the course of their 

employment. Employers have primary 

control of the work environment and 

should ensure that it is safe and 

healthful’’ (Leg. Hist. at 149). 

Therefore, as seen in the statutory text 

and legislative history, Congress 

conclusively determined that OSHA 

regulation is necessary to protect 

employees from occupational hazards 

and that employers should be required 

to reduce or eliminate significant 

workplace health and safety threats. 

This includes a concomitant financial 

responsibility to pay for the measures 

necessary to that end. Congress plainly 

viewed the costs of compliance with the 

Act as a type of ordinary business 

expense that employers would be 

expected to bear in order to reduce 

employee exposure to safety and health 

hazards (Cotton Dust, 452 U.S. 490, 

519–521 (1980)). 

PPE is a means to ensure the safety 

and health of employees, just as 

engineering, administrative, and work 

practice controls are. There is no 

principled distinction between these 

other control methods and PPE for 

purposes of cost allocation (See UAW v. 

Pendergrass, 878 F.2d 389, 400 (D.C. 

Cir. 1989)). For example, in the Cancer 

Policy rulemaking in 1980, OSHA found 

no distinction, for payment purposes, 

between engineering controls and 

personal protective equipment 

necessary to protect employees from 

exposure to carcinogenic substances: 

The requirement that employers pay for 

protective equipment is a logical corollary of 

the accepted proposition that the employer 

must pay for engineering and work practice 

controls. There is no rational basis for 

distinguishing the use of personal protective 

equipment [from other controls]. The goal in 

each case is employee protection; 

consequently the responsibility of paying for 

the protection should, in each case, rest on 

the employee (45 FR 5261, Jan. 22, 1980). 

Many commenters to the rulemaking 

agreed that the OSH Act requires 

employer payment for PPE. The ASSE 

agreed that the OSH Act’s mandate 

requiring employers to provide a safe 

and healthful workplace for their 

employees ‘‘[i]ncludes the financial 

obligation of employers to provide 

controls to address hazards that could 

cause injury or physical harm to their 

employees. The majority of ASSE 

members reviewing this proposal 

generally agreed that most PPE is 

covered under the Act’’ (Ex. 12: 110). 

AFSCME stated that it 

‘‘wholeheartedly concurs’’ with OSHA’s 

rationale that ‘‘[t]he requirement that 

employers pay for PPE is a logical 

corollary of the accepted proposition 

that the employer must pay for 

engineering and work practice controls’’

(Ex. 12: 100). 

The International Brotherhood of 

Teamsters stated that ‘‘[r]equiring 

employers to provide personal 

protective equipment at no cost to 

employees will only clarify the OSH 

Act’s implicit legal requirements and its 

legislative history, as discussed in the 

preamble. The OSH Act clearly charges 

employers with the responsibility for 

achieving safe and healthful 

workplaces’’ (Ex. 12: 190). 

The AFL–CIO commented that ‘‘[t]he 

language, intent and legislative history 

of the Act all support the principle that 

employers are required to provide and 

pay for the measures necessary to 

protect workers by controlling hazards 

which pose a risk of injury, illness, or 

death to their employees’’ (Ex. 12: 19–

1). Therefore, the AFL–CIO supports a 

rule that ‘‘codifies an employer’s 

responsibility to pay for personal 

protective equipment’’ (Id.). 

Some commenters, however, 

disagreed that the OSH Act sets forth 

requirements on cost allocation. As a 

matter of statutory construction, some 

commenters suggested that the only 

place Congress set forth requirements 

related to costs was in section 6(b)(7) for 

medical examinations. Section 6(b)(7) 

provides that ‘‘[a]ny such standard shall 

prescribe the type and frequency of 

medical examinations or other tests 

which shall be made available, by the 

employer or at his cost’’ (29 U.S.C. 

655(b)(7)). OSHA disagrees with these 

commenters. 

These comments, taken to their 

logical extreme, suggest that employers 

would pay for nothing under the Act 

except medical examinations or other 

tests. That means that employees could 

be asked to pay for everything else—

their own training, engineering controls, 

air sampling, the setting up of regulated 

areas, housekeeping measures, 

recordkeeping, and all other protective 

measures—required under the Act and 

OSHA standards. Such a reading of the 

Act would be contrary to the purpose 

and legislative history of the Act placing 

responsibility for compliance with 

employers, as discussed above. The 

argument was in fact rejected in Lead, 

647 F.2d at 1232: 

Th[e] maxim (expressio unius est exclusio 

alterius) [ ‘‘the expression of one is the 

exclusion of another’’] is increasingly 

considered unreliable * * * for it stands on 

the faulty premise that all possible 

alternative or supplemental provisions were 

necessarily considered and rejected by the 

legislative draftsmen. Thus it is incorrect to 

say that because Congress expressly required 

that standards prescribing the type and 

frequency of medical examinations or other 

tests shall be made available, by the 

employer or at his cost, that Congress 

prohibited OSHA from using its broad 

rulemaking authority to require employer 

payment for other employee rights, where it 

determines, after rulemaking, that such rights 

are necessary to enable the agency effectively 

to carry out its responsibilities. 

Some commenters claimed that there 

are fundamental distinctions between 

engineering controls and PPE that 

warrant different cost treatment under 


jlentini on PROD1PC65 with RULES3
64380 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

the Act. UPS argued that the primary 

difference between engineering changes 

and PPE is ‘‘[c]lear and simple: 

employers own the equipment they 

make engineering changes to—it is part 

of their facility—but by definition [PPE] 

typically is owned by employees: that is 

why it is personal’’ (Ex. 12: 189, p. 19). 

The SHRM stated that PPE, unlike 

engineering or work practice controls, 

‘‘[i]s in the personal care of the 

employee, and the employee plays a 

direct role in the selection, use, sizing, 

adjusting, care, storage, and control of 

[the] PPE.’’ SHRM also stated that ‘‘[t]he 

employee is generally in a far better 

position than the employer to ensure 

that personally-assigned PPE is properly 

maintained, used, and stored’’ (Ex. 46: 

43, p. 19–20). 

OSHA is not convinced by these 

arguments. As an initial matter, OSHA 

disagrees that by definition PPE is 

typically ‘‘owned’’ by the employee. In 

fact, the record in this rulemaking 

suggests the opposite. With a few 

exceptions—safety-toe shoes and 

everyday clothing—employers typically 

provide the PPE to their employees and 

expect the employees to return the PPE 

at the end of the day or at the 

completion of their work for the 

employer. The record does not support 

UPS’s position that employees typically 

‘‘own’’ such PPE as protective eye wear, 

chemical protective gloves, harnesses, 

lanyards, ladder safety device belts, 

rubber gloves and sleeves, logging 

chaps, supplied air respirators, 

encapsulating chemical protective suits, 

life preservers and life jackets, retrieval 

systems, and the like. OSHA is also not 

swayed by SHRM’s arguments that 

employees are in a better position to 

maintain, use, and store PPE. In fact, the 

existing PPE standards place on 

employers the responsibility for 

ensuring proper fit, use, and 

maintenance of PPE. 

The crux of OSHA’s position is that 

PPE is an important control measure 

required by OSHA standards. While PPE 

is considered the last line of defense 

and OSHA has stated a preference for 

engineering, work practice, and 

administrative controls, it is still an 

important type of protection utilized by 

millions of employees every day. 

Simply because PPE is not a part of or 

attached to an employer’s facility does 

not mean that it provides a different 

protective function. Like other control 

measures, it protects employees from 

safety and health hazards in the 

worksite and should not be treated 

categorically differently for payment 

purposes than other control measures. 

Other commenters contended that 

OSHA’s interpretation of the Act ignores 

the many references to employee 

responsibilities in the statute (Exs. 12: 

189; 46: 43) In particular, these 

commenters cited the language of 

section 5(b) of the Act, which requires 

that each ‘‘[e]mployee shall comply 

with occupational safety and health 

standards and all rules, regulations, and 

orders issued pursuant to this Act 

which are applicable to his own actions 

and conduct’’ (29 U.S.C. 654(b)). 

There is no doubt that Congress 

expected employees to comply with 

safety and health standards. It is also 

true that Congress believed that 

employee cooperation in safety and 

health was critical to ensuring safe and 

healthful workplaces. What Congress 

did not intend, however, was for 

employees to bear the cost of ensuring 

that their workplaces were safe and 

healthy. That is why section 5(b) of the 

Act focuses on an employee’s ‘‘own 

actions and conduct.’’ It is also why 

Congress made it clear that the 

‘‘[e]mployee-duty provided in section 

5(b) [does not] diminish in any way the 

employer’s compliance responsibilities 

or his responsibility to assure 

compliance by his own employees. 

‘Final responsibility for compliance 

with the requirements of this act 

remains with the employer’ ’’ (S. Rep. 

No. 91–1282, U.S. Cod Cong. & Admin. 

News 1970, p. 5187). 

The role of employers and employees 

under the OSH Act was specifically 

addressed by the Third Circuit in 

Atlantic & Gulf Stevedores, Inc. v. 

OSHRC, 534 F.2d 541 (3d. Cir. 1976). In 

holding that Congress did not confer 

power on OSHA to sanction employees 

for violations of the Act, the court set 

forth clearly that employers are 

ultimately responsible for ensuring that 

their workplaces are safe and healthy. 

Employers thus cannot shift financial 

responsibility for ensuring safe and 

healthful workplaces to their 

employees. 

Finally, and more fundamentally, 

some commenters suggested that this 

rule was purely an economic rule and 

that the OSH Act does not give OSHA 

authority to resolve economic issues. 

UPS and PMA both asserted that 

‘‘OSHA’s health and safety mandate 

does not permit it to invade collective 

bargaining with this purely economic 

rule’’ (Exs. 12: 173, 189). The SCA had 

concerns about OSHA’s ‘‘[a]ttempt to 

regulate wages * * * which is not part 

of OSHA’s mandate and accordingly, 

should not be subject to OSHA 

regulation’’ (Ex. 12: 65). The NMSA 

stated that ‘‘OSHA simply has no 

jurisdiction over employee 

compensation’’ (Ex. 12: 172). 

These commenters misunderstand 

this rule and the requirements of the 

OSH Act. The issue is not whether a 

particular requirement deals with 

economics in some way, the proper test 

is whether the requirement will help 

reduce significant risk of injury and 

death, thereby protecting the safety and 

health of employees. In fact, Congress 

confirmed this by specifying that 

employers must bear the costs of 

complying with OSHA standards. As 

explained more fully below, this rule is 

directly related to protecting the safety 

and health of employees and will result 

in substantial safety benefits. 

These comments also do not consider 

the approximately 20 general industry 

safety and health standards OSHA has 

issued requiring employers to pay for 

PPE. Many of these standards have been 

challenged and upheld by the courts. 

For example, in Noise, 773 F.2d at 

1451–1452, the court upheld the 

requirement in the hearing conservation 

standard that employers must pay for 

hearing protectors, finding that the 

requirement was reasonably related to 

the standard’s purpose of reducing the 

risk associated with occupational noise 

exposure. No court has struck down 

OSHA’s standards requiring employers 

to pay for PPE because they were 

outside of the Agency’s statutory 

mandate. 

a. Exceptions 

As set forth in more detail in section 

V, the final rule contains certain 

exceptions to the general rule that 

employers must pay for required PPE. 

These exceptions include certain safetytoe protective footwear and prescription 

safety eyewear, logging boots, and 

everyday clothing such as long pants, 

long sleeve shirts, and normal work 

boots. Including these exceptions to the 

final rule is consistent with the OSH Act 

and its cost allocation scheme. 

As stated above, the Agency agrees 

with the general principle that 

employers’ legal responsibility for 

compliance with OSHA standards 

implies a concomitant financial 

responsibility to pay for the measures 

necessary to that end. OSHA also 

concludes that this requirement applies 

to most types of PPE. PPE cannot be 

categorically segregated from other 

types of control measures for payment 

purposes. This is one of the 

fundamental underpinnings of the final 

rule. OSHA has concluded that a 

general employer payment requirement 

will effectuate the OSH Act’s implicit 

cost-allocation scheme and reduce the 

risk of injuries, illnesses, and fatalities. 

However, acceptance of these 

principles does not mean that the OSH 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64381 

15See 29 CFR 1910.95(i)(1), (i)(3) (hearing 

conservation); 29 CFR 1910.1001(g)(1), (g)(2)(i), 

(h)(1) (asbestos); 29 CFR 1910.1018(h)(1), (h)(2)(i), 

(j)(1) (inorganic arsenic); 29 CFR 1910.1025(f)(1), 

(g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1) 

(cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) 

(benzene); 29 CFR 1910.1030(d)(3)(i), (d)(3)(ii) 

(bloodborne pathogens); 29 CFR 1910.1043(f)(1), 

(f)(3) (cotton dust); 29 CFR 1910.1044(h)(1), (h)(2), 

(h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 

CFR 1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR 

1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 

1910.1048(g)(1), (h) (formaldehyde); 29 CFR 

1910.1050(h)(2)(i), (i)(1) (4,4, methylenedianiline); 

29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29 CFR 

1910.1052 (g)(1), (h)(1) (methylene chloride); 29 

CFR 1910.146(d)(4)(iv) (confined spaces); 29 CFR 

1910.156(e)(1)(i) (fire brigades); 29 CFR 

1910.266(d)(1)(iii), (d)(1)(iv), (d)(1)(vi), (d)(1)(vii) 

(logging); 29 CFR 1910.134(c)(4) (respiratory 

protection standard); 71 FR 10100 (Feb. 24, 2006) 

(hexavalent chromium). 

Act prohibits exceptions to the 

employer-payment rule. There are 

certain narrow circumstances where 

OSHA believes that Congress did not 

intend for employers to have to pay for 

PPE. And Congress expected OSHA to 

make reasonable judgments as to the 

types of PPE that fit in this category. 

OSHA has recognized these situations 

in the past and the record in this 

rulemaking supports these 

determinations. 

In its earliest interpretation of the 

issue in the Budd case, the Agency 

stressed that safety-toe shoes have 

certain special characteristics that 

separate it from most PPE for purposes 

of cost allocation. In her brief in Budd, 

the Secretary stated that: 

[b]y tradition, in this country shoes are 

considered unique items of a personal nature. 

Safety shoes are purchased by size, are 

available in a variety of styles, and are 

frequently worn off the job, both for formal 

and casual wear. Furthermore, it is neither 

feasible for a different employee to wear the 

shoes each day nor feasible that upon 

resigning from the position an employee will 

leave the shoes behind to be worn by another 

individual. 

In the safety standard on logging 

operations, OSHA determined that 

logging employers should pay for 

protective equipment for the head, eyes, 

face, hands, and legs, but should not be 

required to pay for logging boots. OSHA 

excepted logging boots from among the 

types of equipment that employers must 

purchase for several reasons. The 

Agency found that logging boots, unlike 

other types of personal protective 

equipment, are not reusable. OSHA also 

noted that logging boots are readily 

portable, and unlike head and leg 

protection, are sized to fit a particular 

employee. Finally, the Agency noted 

that there was evidence in the record 

that employees use their logging boots 

away from work. 

In the 1994 memorandum ‘‘Employer 

Obligation To Pay for Personal 

Protective Equipment’’ OSHA also 

stated its policy that ‘‘[w]here 

equipment is very personal in nature 

and is usable by workers off the job, the 

matter of payment may be left to labormanagement negotiations.’’ The 

memorandum also gave examples of this 

type of equipment, including safety 

shoes, non-specialty safety glasses, and 

cold-weather outerwear. 

OSHA does not believe that Congress 

intended for employers to have to pay 

for the types of PPE excepted in the 

final rule. This list includes nonspecialty safety-toe shoes and boots, 

everyday clothing, cold weather gear, 

and normal work boots. While serving a 

protective function in certain 

circumstances, this equipment has 

either been historically exempted by 

OSHA from employer payment (e.g., 

safety-toe shoes), the item is often used 

off the job, or is equipment that 

employees must wear to work regardless 

of the hazards found. For example, an 

employee who works at a computer 

terminal may have to wear a pair of long 

pants to work (due to a company 

policy), even though wearing long pants 

is not required for safety reasons. But, 

a tree trimmer may have to wear long 

pants to work to provide protection 

from tree branches and limbs, etc. In 

both instances, the employee has to 

wear long pants to work. However, with 

respect to the tree trimmer, the long 

pants also serve a protective function. In 

the Agency’s view, Congress simply did 

not intend for employers to have to pay 

for this type of equipment, even though 

it admittedly serves a protective 

function in certain circumstances. 

Congress intended the Agency through 

its rulemaking function and in its 

standard-setting discretion to identify 

those narrow circumstances where 

payment can be left to negotiation 

between the employer and employee. 

These circumstances include such 

considerations as whether the items are 

normally used off the job or are items 

employees must wear to work regardless 

of the hazards found. 

OSHA’s position in this final rule is 

also consistent with its past 

interpretations of the issue, as detailed 

above. Since OSHA’s earliest 

interpretations on employer payment for 

PPE, it has made clear that there are 

some exceptions to the employer 

payment rule. The principle of 

employer payment cannot be stretched 

so far that it applies to all protective 

equipment, in all circumstances, at all 

times. 

2. An Employer Payment Requirement 

Is Implicit in the Wording of Existing 

Standards 

The requirement that employers pay 

for the means necessary to achieve 

compliance is implicit in the statute 

itself, and therefore, is properly an 

implied term of every occupational 

safety or health standard. Properly 

viewed, this final rule clarifies an 

employer payment requirement that had 

previously been implicit in those 

standards. 

In the proposed rule, the Agency set 

forth in detail its interpretive history on 

the issue of employer payment for PPE. 

It also discussed the holding in the 

Budd decision and why, in OSHA’s 

view Secretary of Labor v. Union Tank 

Car Co. (18 O.S.H. Cas. (BNA) 1067 

(Rev. Comm.) 1997) was wrongly 

decided. OSHA received only a few 

comments on this discussion; these 

comments asserted that the Union Tank 

decision was correct in not reading the 

term ‘‘provide’’ as requiring employer 

payment. OSHA continues to agree with 

the discussion in the proposal and 

incorporates it in this final rule. 

Nevertheless, OSHA reiterates here the 

main parts of the discussion because it 

further supports OSHA’s interpretation 

of the OSH Act as requiring employers 

to pay for virtually all PPE. 

From 1974 through October 1994, 

OSHA made a variety of statements on 

the question of employer payment for 

PPE. The most authoritative statements 

of the Agency’s position are contained 

in OSHA’s safety and health standards 

promulgated through notice and 

comment. Since 1978, OSHA has 

promulgated many safety and health 

standards explicitly requiring employers 

to furnish PPE at no cost.15 In these 

rulemakings, OSHA concluded that this 

explicit requirement effectuates the cost 

allocation scheme of the OSH Act. 

In 1978, OSHA promulgated a 

standard to protect employees from 

cotton dust. That rule required 

employers to pay for respirators when 

necessary to protect employees from 

exposure to this hazardous substance 

(43 FR 27350, 27387 (June 23, 1978)). 

The Agency noted that the language 

requiring employers to provide 

respirators ‘‘[a]t no cost to the employee 

* * * makes explicit the position which 

has long been implicit in all OSHA 

health standard proceedings under 

section 6(b) of the Act’’ (Id). (internal 

quotations omitted) The Agency 

expressed a similar view in the 

preambles for the 1,2-Dibromo-3- 

chloropropane (DBCP) standard (43 FR 

11514, 11523 (March 17, 1978)), the 

lead standard (43 FR 52952, 52994 (Nov. 

14, 1978)), the inorganic arsenic 

standard (43 FR 19584, 19619 (May 5, 

1978)), the benzene standard, (43 FR 


jlentini on PROD1PC65 with RULES3
64382 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

5918, 5953 (Feb. 10, 1978)), the ethylene 

oxide standard, (49 FR 25734, 25782 

(June 22, 1984)), and the asbestos 

standard, (51 FR 22612, 22697 (June 20, 

1986)). 

In other official agency actions during 

this same period, OSHA interpreted and 

enforced its standards to require 

employers to pay for personal protective 

equipment, carving out an exception 

limited to uniquely personal items like 

safety shoes. In 1979, OSHA issued an 

Interpretive Instruction clarifying that 

29 CFR 1910.1029(h)(1), which used the 

language ‘‘shall provide,’’ required 

employers to furnish personal protective 

equipment for coke oven employees at 

no charge. OSHA Instruction STD 1–6.4 

(March 12, 1979). See also Erie Coke 

Corp., 15 O.S.H. Cas. (BNA) at 1563 

(citing this provision). A July 17, 1990, 

Agency memorandum stated that 

although section 1910.132(a) does not 

specifically allocate the costs of 

personal protective equipment to 

employers, ‘‘[i]t is our position that the 

employer is obligated to pay for PPE 

which is not worn off the worksite. This 

includes welding gloves, but not safety 

shoes * * *’’ In September 1990, OSHA 

issued a citation to a meatpacking firm 

alleging that it violated section 

1910.132(a) by charging its employees 

for repair or replacement of steel mesh 

gloves and plastic wrist bands used for 

protection against knife cuts. The 

citation was not contested, and thus 

became a final order of the Commission 

by operation of law (29 U.S.C. 659(a)). 

On October 18, 1994, OSHA issued a 

memorandum to its regional 

administrators and heads of directorates 

setting forth a national policy with 

respect to PPE payment. The 

interpretation outlined in this 

memorandum required employers to 

pay for all personal protective 

equipment that is necessary for the 

employee to do his or her job safely and 

in compliance with OSHA standards, 

except for equipment that is personal in 

nature and normally used away from the 

worksite such as steel-toe safety shoes. 

Before the 1994 memorandum was 

issued, OSHA concedes that some 

Agency officials had provided responses 

to written requests for information on 29 

CFR 1910.132(a) suggesting among other 

things that the provision was ambiguous 

on the subject of employer payment and 

best resolved through collective 

bargaining, or that the Review 

Commission’s decision in Budd 

foreclosed an interpretation requiring 

employer payment. The 1994 

memorandum, however, was a 

definitive statement on the issue of 

employer payment for PPE and reflected 

the Agency’s position on the issue as 

seen in its most authoritative statements 

made since 1974. OSHA subsequently 

issued a national compliance directive, 

STD 1–6.6, incorporating this 

interpretation and stating that violations 

of the policy would be cited. 

Despite this history, the Review 

Commission in Union Tank rejected the 

claim that 29 CFR 1910.132(a) could 

require employer payment for PPE. In 

March 1996, OSHA issued a citation 

alleging that the Union Tank Car 

Company violated 29 CFR 1910.132(a) 

by requiring employees to pay for 

metatarsal safety shoes and welding 

gloves. Upon review, the Review 

Commission issued a decision vacating 

the citation (18 O.S.H. Cas. (BNA) at 

1067–8). Citing its earlier decision in 

Budd, the Review Commission 

concluded that 1910.132(a) could not be 

interpreted to require employers to pay 

for personal protective equipment (Id. at 

1068). The Review Commission 

believed that the Secretary’s position on 

the issue was contrary to previous 

statements on employer payment for 

PPE and thus, was a departure that was 

not thoroughly explained. 

The Review Commission’s holding in 

Union Tank and its interpretation of 29 

CFR 1910.132(a) misstates OSHA’s 

historic position on payment for 

personal protective equipment. 

Moreover, while two commenters to the 

rulemaking record argued that Union 

Tank was correctly decided (Exs. 12: 

173, 189), OSHA believes the case was 

wrongly decided. As described above, 

OSHA’s official interpretations from 

1974 onward consistently favored 

employer payment for PPE. This view 

was expressed in a variety of official 

agency actions, including rulemaking 

proceedings under the Act, agency 

memorandums and directives, and 

citations. This historic position belies 

the Review Commission’s finding that 

the 1994 memorandum and STD 1–6.6 

announced a wholly new national 

policy. 

The Review Commission’s 

mischaracterization of OSHA’s historic 

view also stems in part from its 

erroneous reading of Budd and the 

Secretary’s position in that case. In 

Budd, the respondent’s employees were 

working without safety-toe shoes (1 

O.S.H. Cas. (BNA) at 1549). The 

Secretary issued a citation alleging a 

violation of 29 CFR 1910.132(a) for the 

employer’s failure to provide such shoes 

(Id). Prior to the hearing, the employer 

moved to withdraw its notice of contest 

on the understanding that its obligation 

to provide safety shoes did not include 

the requirement to pay for them (Id). 

The Secretary agreed that the employer 

was not required to pay for the shoes 

because of their special characteristics 

as uniquely personal; however, the 

union representing the employees 

objected on the ground that the standard 

required employer payment (Id). 

Reviewing this motion to withdraw the 

citation, the Review Commission held 

that § 1910.132(a) did not require the 

employer to pay for such shoes, with 

each Commissioner expressing a 

distinct reason for such. In Union Tank, 

the Review Commission erroneously 

characterized this holding as 

interpreting ‘‘provide’’ as used in 

§ 1910.132(a) as foreclosing employer 

payment (18 O.S.H. Cas. (BNA) at 1067–

8). The Commission also described the 

Secretary as having acquiesced to this 

holding, rendering its later position in 

the 1994 memorandum historically 

‘‘unsupported’’ ‘‘[a]fter twenty years of 

uninterrupted acquiescence in the 

interpretation the Review Commission 

announced in Budd’’ (Id. at 1069). 

OSHA believes that the Review 

Commission in Union Tank was, 

however, incorrect on both points. First, 

Budd did not broadly hold that 

‘‘provide’’ in § 1910.132(a) can never be 

interpreted to mean ‘‘pay for.’’ Although 

the Review Commission in Budd did 

agree that § 1910.132(a) did not require 

the employer to pay for safety shoes, the 

Review Commission did not announce a 

majority opinion extending this 

conclusion beyond safety shoes. Only 

one Commissioner, Van Namee, opined 

that § 1910.132(a) broadly foreclosed 

employer payment for all protective 

equipment (1 O.S.H. Cas. (BNA) at 

1549–50). The remaining 

Commissioners wrote separate opinions, 

one limiting his holding to the 

particular facts of the case and the 

particular context of safety shoes 

(Commissioner Cleary Id. at 1552–3) 

and one concurring without stating a 

rationale (Commissioner Moran, Id. at 

1553–4). Because these two other 

Commissioners filed separate opinions 

announcing distinct rationales, Van 

Namee’s view of ‘‘provide’’ as 

universally foreclosing employer 

payment is not the Commission’s 

official holding (See Atlantic Gulf & 

Stevedores v. OSHRC, 534 F.2d at 546). 

Claims to the contrary, made by both the 

UPS and the PMA in comments to the 

proposed rule (Exs. 12: 189, 179), ignore 

the limitations of the Review 

Commission’s decision. 

The Secretary’s position in Budd was 

similarly limited to the particulars of 

safety shoes and did not, as the Review 

Commission in Union Tank suggested, 

adopt a broader interpretation 

foreclosing all employer payment for 

protective equipment. In her Brief in 

Budd, the Secretary conceded that 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64383 

employers should not be required to pay 

for safety shoes. The Secretary, 

however, stressed the special 

characteristics of safety shoes, including 

their uniquely personal nature and their 

potential use outside the employment 

site (Brief of the Secretary, served 

January 10, 1973, at 8). The Secretary 

did not, however, extend this rationale 

beyond safety shoes to foreclose all 

employer payment for protective 

equipment. Rather, the Secretary 

emphasized that an interpretation 

requiring employers generally to 

provide personal protective equipment 

free of charge would be consistent with 

the statutory scheme. She also noted 

that the Act’s legislative history 

demonstrated Congress’s intent to place 

the costs of achieving safe and healthful 

workplaces upon employers (Id. at 10). 

The Secretary concluded: ‘‘Personal 

protective equipment cannot be 

segregated from equipment necessary to 

provide proper working conditions and 

therefore the purchase of such 

equipment by the employer was 

contemplated by the Act in cases where 

a standard might require it’’ (Id. at 10–

11). 

Thus contrary to the Review 

Commission’s suggestion in Union 

Tank, the Secretary has never, in Budd 

or elsewhere, characterized ‘‘provide’’

as used in 29 CFR § 1910.132(a) as 

foreclosing employer payment. If 

anything, the Secretary’s position in 

Budd recognized a general rule of 

employer payment limited only where 

equipment, like safety shoes, are 

uniquely personal. This position, like 

the position taken in Union Tank and 

articulated in this final rule, is 

consistent with OSHA’s historic 

approach to 29 CFR § 1910.132(a) and 

employer payment for PPE generally. It 

is further evidence of the Agency’s 

longstanding position that the OSH Act 

requires employers to pay for PPE. 

C. The Final Rule Is an Ancillary 

Provision Reasonably Related to the 

Purposes of the Underlying PPE 

Standards 

Separate from making the basic cost 

allocation scheme of the OSH Act 

explicit in the PPE standards, the final 

rule is justified as a legitimate exercise 

of OSHA’s rulemaking authority to 

promulgate provisions in its standards 

to help reduce significant risk. The 

existing PPE standards reflect a 

determination that the use of PPE is 

necessary to reduce a significant risk of 

injury and death. Once OSHA has 

determined that a significant risk of 

material impairment of health or well 

being is present, and will be reduced by 

a standard, the Agency is free to develop 

specific requirements that are 

reasonably related to the Act’s and the 

standard’s remedial purpose. This final 

rule is placing ancillary provisions in 

the existing standards requiring PPE 

use. Thus, OSHA must demonstrate 

only that requiring employees to pay for 

PPE is reasonably related to the 

remedial purpose of the PPE standards 

and will help reduce significant risk. 

OSHA finds that the final rule meets 

this test. 

Requiring employers to pay for PPE 

used to comply with OSHA’s standards 

is a classic ancillary requirement. It 

helps to ensure that the PPE is used 

properly by employees to protect them 

from injury and death. OSHA has 

included employer payment provisions 

as ancillary provisions in numerous past 

rules, as described above. In those 

rulemakings, the requirement was 

promulgated at the same time as the 

other provisions of the standard to help 

reduce significant risk. In this rule, of 

course, OSHA is adding the explicit 

employer payment requirement in a 

separate rulemaking action. However, 

by doing so, OSHA does not change the 

fundamental nature of the requirement. 

At bottom, this final rule adds an 

ancillary provision to certain PPE 

standards to help reduce a significant 

risk of injury. 

After a thorough review of the 

rulemaking record, OSHA concludes 

that requiring employer payment for 

most types of PPE increases the 

effectiveness of the existing PPE 

standards in several ways: (1) The 

requirement encourages a greater degree 

of usage of PPE by eliminating a 

financial disincentive to such use; (2) it 

increases the degree of employer control 

over PPE selection and maintenance, 

thereby increasing the effectiveness of 

the employer’s safety program; and (3) 

the requirement indirectly fosters a 

greater degree of employee cooperation 

in employer safety programs by 

demonstrating the employer’s financial 

commitment to safety. 

First, the reason employer payment 

will result in improved safety is 

primarily a matter of economics, and 

how employees’ and employers’

behavior regarding PPE is affected by 

their financial situations. In the 

proposed rule, OSHA cited enforcement 

cases that documented instances where 

financial considerations played an 

important role in employee use of 

damaged and unsafe PPE (Id. at 15407). 

For example, in Ormet Primary 

Aluminum Corp., OSHRC Docket No. 

96–0470, an employee testified that he 

continued to wear safety boots, even 

though the protective steel toes were 

exposed and posed an electrocution 

hazard, because he could not afford a 

new pair. The employee also testified 

that some employees put a cement-like 

substance over the steel toes of their 

boots when the leather covering wore 

away, but that this practice was 

hazardous because the substance was 

flammable (Id). OSHA also referred to 

the Union Tank case, in which the 

employee representative presented an 

affidavit that some employees taped or 

wrapped wire around their damaged 

metatarsal safety boots in order to avoid 

having to pay up to $130 per pair to 

replace them (Id). 

The rulemaking record also strongly 

supports OSHA’s position. As several 

commenters noted, when lower-wage 

employees are required to provide their 

own PPE, they are likely to avoid PPE 

costs and thus fail to provide 

themselves with adequate protection. 

David Daniels of the United 

Steelworkers of America noted that 

‘‘The welders have to purchase their 

leathers, gloves and metatarsal boots. 

The welders will take their leathers 

when the top of the sleeves are burnt 

with holes in them and turn the leathers 

over which exposes the bottom of the 

employee’s arm to heat, hot metal or 

open flame’’ (Tr. 375). Similarly, John 

Molovich, also with the United 

Steelworkers of America stated that: 

Workers in some cases do not earn 

sufficient wages to pay for all the things that 

are necessary to support themselves and their 

families. As a result, some things are either 

overlooked or eliminated, and in many cases 

it would be the PPE they use at work. Even 

if they do purchase the PPE, it is usually the 

cheapest and in most cases the most 

ineffective. This is merely human nature (Tr. 

370). 

In response to OSHA’s reopening of the 

record on tools of the trade, AFSCME 

stated: 

Failure to require employers to pay for PPE 

would also cause an unreasonable burden on 

lower paid workers. Workers at risk would be 

asked to choose between paying for their PPE 

and providing basic needs for their families 

* * *. The likelihood that worker protection 

would be diminished would be even greater 

for employees whose language and literacy 

levels may present barriers to the appropriate 

selection and use of PPE (Ex. 45: 1). 

Some commenters provided specific 

examples of instances where having 

employees pay for PPE could contribute 

to an increased risk of injury. Jackie 

Nowell of the UFCW testified that: 

[W]hen workers are given the choice 

between a full week’s pay and a new metal 

glove [to reduce risk of injury from sharp 

cutting tools] they’ll choose the paycheck. 

The gloves get holes in them and the workers 

sew them together rather than spend $65 for 

a new one (Tr. 184–185). 


jlentini on PROD1PC65 with RULES3
64384 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

The evidence suggests that lower 

wage employees are less likely to 

purchase adequate PPE and replace it 

when necessary, and are more likely to 

make cosmetic repairs, hide defects, 

purchase used PPE aged beyond its 

service life, or fail to keep the PPE in 

proper working order. After carefully 

reviewing the rulemaking record, OSHA 

is convinced that allowing employers to 

charge employees for PPE will result in 

greater use of unsafe PPE. 

OSHA also believes that employees 

will be more inclined to use PPE if it is 

provided to them at no cost. As with 

any product, when PPE is available at 

lower cost, the employee will be 

inclined to use it more readily. One 

could argue that since it is the 

employee’s safety that is at stake, the 

employee will be more inclined to 

purchase the best PPE available on the 

market. Unfortunately, as evidence in 

the record suggests, when employees 

pay for their own PPE, some number of 

them will not take this course, and as a 

result their safety will be compromised 

(Tr. 104–105, 178, 184–185, 323, 370, 

375; Ex. 19, 22A, 23, 23A, 25, 30, 43, 45; 

13, 21, 36, 46: 1, 13, 45). 

Employers’’ natural economic 

behavior of reducing costs could also 

result in some safety and health 

disincentives. The BCTD and the AFL–

CIO suggested that allowing employees 

to pay for PPE provides an economic 

disincentive for employers to invest in 

engineering controls, thus increasing 

risk to employees (Ex. 45: 21; Tr. 322–

323). If employers ignore the hierarchy 

of controls because they can shift the 

cost of workplace safety to their 

employees, they may be choosing less 

effective methods of mitigating hazards. 

By eliminating this incentive, employers 

may be more inclined to implement 

more effective engineering, 

administrative, and work practice 

controls, leading to improved safety and 

fewer injuries and illnesses. This final 

rule eliminates any economic incentives 

that employers may have to avoid more 

protective control measures. 

Second, OSHA believes that safety 

benefits will be realized by the final rule 

because it will clearly shift overall 

responsibility for PPE to employers. In 

past rulemakings, OSHA has concluded 

that requiring employers to pay for PPE 

will result in benefits because it will 

clearly make employers responsible for 

the control of the PPE (See 43 FR 19619 

(May 5, 1978) (inorganic arsenic 

preamble); 46 FR 4153 (hearing 

conservation preamble)). Recently, 

OSHA promulgated a standard to 

protect employees against exposures to 

hexavalent chromium (71 FR 10100 

(Feb. 28, 2006)). In the final rule, OSHA 

required employers to pay for needed 

protective equipment. The Agency 

stated that employer payment was 

necessary because ‘‘[t]he employer is 

generally in the best position to select 

and obtain the proper type of protective 

clothing and equipment for protection 

from Cr(VI)’’ (71 FR 10355). In addition, 

OSHA concluded that ‘‘[b]y providing 

and owning this protective clothing and 

equipment, the employer will maintain 

control over the inventory of these 

items, conduct periodic inspections, 

and, when necessary, repair or replace 

it to maintain its effectiveness’’ (Id). 

From the comments in this 

rulemaking, it is apparent that some 

employers have shifted some PPE 

responsibility to their employees along 

with the responsibility to pay for the 

equipment. Some went so far as to 

suggest that employees have a better 

idea of the PPE required for the work 

and should rightfully be selecting their 

own PPE. SHRM stated that the 

employee ‘‘[p]lays a direct role in the 

selection, use, sizing, adjusting, care, 

storage, and control of [the] PPE’’ and 

that ‘‘[t]he employee is generally in a far 

better position than the employer to 

ensure that personally-assigned PPE is 

properly maintained, used, and stored’’

(Ex. 46: 43, pp. 19–20). 

OSHA believes that employees can 

provide any number of useful 

suggestions about employers’ PPE 

programs, including selection, use, and 

care of PPE. However, outside of a few 

specialized fields, a newly hired 

employee is not in a position to know 

the types of hazards they will face, and 

the types of PPE they will need for 

protection from those hazards. The 

employer who controls the workplace is 

much more aware of the hazards 

encountered in that workplace and the 

protective measures that are needed 

(Exs. 23, 46–13, 46–33; Tr. 104–105). 

This is the rationale underlying the 

OSHA standards that require employers 

to perform a hazard assessment to 

determine the types of PPE that are 

needed (See, e.g., § 1910.132(d) and 

§ 1915.152(b)). 

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. As ASSE stated: 

Employers correctly understand that their 

investment in proper PPE is an economic 

investment in productivity as well as a 

means of ensuring that workers go home safe 

and healthy each day. And to drive home 

that investment, they have recognized that 

their own involvement in PPE provides the 

best opportunity to ensure proper and 

effective use of PPE on their job sites. 

Recognizing their responsibility for 

identifying hazards, they provide the followthrough necessary to address those hazards 

(Ex. 46–33). 

UPS argued that employer payment 

would have no effect on PPE selection 

because employers could select the 

correct PPE, purchase it, and then 

charge employees for the items. It also 

argued that employers could instruct 

employees to purchase a particular 

make, model, or design of equipment 

from a particular location and require 

them to present the equipment for 

verification before beginning work (See, 

e.g., Ex. 189, p. 17). 

OSHA agrees that employers could 

take these actions and some employers 

use one or both of these practices now. 

However, OSHA does not believe this 

practice is the norm; there are not likely 

to be very many employers that use 

complex administrative systems to 

assure that the PPE is appropriate when 

employees pay for the items. 

Additionally, under these systems, 

employees continue to have an 

incentive to underreport deficient or 

worn out PPE that needs to be replaced 

to perform its protective function. 

OSHA believes that these types of 

systems do not improve safety culture at 

the worksite, or encourage employees to 

participate whole-heartedly in an 

employer’s safety and health program. 

Therefore, OSHA believes that the 

scenario described by UPS is 

administratively cumbersome for 

employers, is not widely practiced, and 

does not provide a workable solution to 

the overall policy problem of PPE nonuse or misuse. Systems of this type, 

sometimes called ‘‘company stores’’ are 

also likely to be criticized by those who 

believe the employer is making money 

from administration of the system. As 

the ISEA inquired, ‘‘Should OSHA 

decide that employers can require that 

employees pay for their PPE, ISEA asks 

OSHA to explain the mechanism it 

would establish to ensure that 

employers do not overcharge 

employees’’ (Ex. 46:31). Therefore, these 

commenters advance no sufficient 

alternative and their reasoning is not 

sufficient to convince the Agency that 

the PPE payment rule is not needed. 

Third, employees may be less likely 

¥++‘‘+¥++to participate wholeheartedly in an employer’s safety and 

health program when they must pay for 

their own PPE, and employer payment 

for PPE may improve safety culture at 

the worksite. In past rulemakings, this 

finding has been key to OSHA’s 

conclusions that employer payment will 

result in safety benefits. In requiring 

employers to pay for hearing protectors 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64385 

as part of the hearing conservation 

standard, for example, OSHA relied 

upon the testimony of the director of the 

Safety and Health Department of the 

International Brotherhood of Teamsters: 

[an] employer’s attempt to require its 

employees to purchase their own personal 

ear protective devices would cause 

resentment among the workers and clearly 

demonstrate to them the lack of commitment 

on the part of their employer in preventing 

hearing loss. Such a requirement would 

discourage the use of ear protective devices 

and would create an adversarial atmosphere 

in regard to the hearing conservation program 

(46 FR 4153). 

OSHA found that the need to ensure 

voluntary cooperation by employees 

was also an important reason to require 

employers to pay for other protections 

in standards, including medical 

examinations and medical removal 

protection (MRP). In promulgating the 

lead standard, OSHA relied upon 

extensive evidence that employees’ fears 

of adverse economic consequences from 

participation in a medical surveillance 

program could seriously undermine 

efforts to improve employee health (43 

FR 54442–54449 (Nov. 21, 1978)). 

OSHA cited data from numerous 

sources to show that employees’

concerns about the possible loss of 

income would make them reluctant to 

participate meaningfully in any program 

that could lead to job transfer or 

removal (Id). OSHA promulgated the 

lead standard’s MRP provision 

‘‘[s]pecifically to minimize the adverse 

impact of this factor on the level and 

quality of worker participation in the 

medical surveillance program’’ (Id. at 

54449). 

The record in this rulemaking also 

supports this position. The ISEA 

summed up the views of many 

commenters when it remarked: 

A systematic PPE program, driven by 

management through the organization, is an 

important factor in creating a positive safety 

culture. Employers who provide and pay for 

PPE recognize that they are not simply 

incurring a cost for equipment, but rather 

making an investment by valuing their 

employees and avoiding the high direct and 

indirect costs of injury, illness and death (Ex. 

12:30). 

Finally, OSHA is persuaded by the 

overwhelming consensus of prominent 

occupational safety and health 

organizations that employer payment for 

PPE will result in safer working 

conditions. OSHA carefully examined 

the hundreds of comments to the 

rulemaking record that weighed in on 

whether an employer payment 

requirement would result in safety 

benefits. In doing so, OSHA identified 

the independent safety and health 

organizations that commented in the 

record. Unlike the majority of 

commenters, these organizations do not 

have a financial stake in the outcome of 

the rulemaking, and they do not stand 

to gain or lose economically whether 

employers or employees pay for PPE. 

Their sole interest in the rulemaking lies 

in whether or not it will advance the 

interests of occupational safety and 

health, and protect employees from 

workplace injury, illness and death. It is 

thus appropriate for OSHA to put 

particular weight on the comments of 

these organizations. 

The National Institute for 

Occupational Safety and Health 

(NIOSH) remarked that it has 

consistently recommended that 

employers pay for all PPE required for 

the work setting, and shared OSHA’s 

views that: 

• ‘‘[e]mployees may compromise 

their safety and health by avoiding or 

delaying the purchase, maintenance, or 

replacement of PPE if that must be done 

at the employee’s expense’’; 

• ‘‘when employers do not pay for 

and provide PPE, it may not be worn or 

may be worn improperly, and it may not 

be cared for and replaced 

appropriately’’; and 

• ‘‘when employers do not pay for 

and provide PPE, incorrect or poor 

quality PPE may be selected and worn 

by the employee’’ (Ex. 12: 130). 

The American College of 

Occupational and Environmental 

Medicine (ACOEM), representing 7,000 

occupational physicians, supported 

employer payment for PPE, stating that: 

‘‘It is important that employers be 

responsible for ensuring that the 

personal protective equipment selected 

for use at their facilities is appropriate 

and maintained in proper working 

order. We do not believe that this can 

be achieved if employers are not 

directly involved in the purchase and 

maintenance of that equipment’’ (Ex. 12: 

248). 

The comments of the Mount Sinai 

Irving J. Selikoff Center for 

Occupational and Environmental 

Medicine were based on experience 

with the 7,000 employees per year they 

treat for occupationally related disease 

and illness. They argued that employees 

cannot know the site-specific safety and 

health issues before they start 

employment, which could lead 

employees to have equipment that is 

incompatible with the job site; that if 

employees purchase their own PPE, 

employer supervision of PPE 

maintenance becomes more complex, 

which can lead to less safety; that 

employees who pay for their own PPE 

are less likely to bring up exposure 

concerns [with their employers]; and 

that employer safety education is more 

complicated when employees pay for 

their own PPE. They also argued that: 

Lower income, non-English speaking, and 

immigrant workers are most likely to be 

vulnerable to a shift in responsibility of 

purchase. We know, from advising our 

patients about PPE, that money is an issue for 

procurement and appropriate use. The 

purchase of a pair of prescription safety 

glasses or shoes can represent a notable 

burden to workers, whereas it represents 

operating costs for employers. In an attempt 

to economize, lower quality equipment is 

purchased, and equipment is not updated as 

it should be (Ex. 46: 35). 

The American Association of 

Occupational Health Nurses (AAOHN), 

representing 12,000 occupational health 

nurses in a wide variety of industrial 

sectors supported the rule, noting that 

allowing employees to choose their own 

PPE may pose administrative and 

enforcement problems for employers. 

AAOHN also reported a situation where 

a manufacturing facility allowed 

individual preference and selection for 

safety eyewear and found that 70 

percent of the female employees were 

using glasses without safety lenses (Ex. 

12: 32). 

In its 1999 comments, the American 

Society of Safety Engineers (ASSE), 

representing about 30,000 safety and 

health professionals, noted that most 

employers already pay for PPE during 

the course of their normal business 

operations, and that: 

[m]any organizations benefit from the 

policy of paying for personal protective 

equipment. The alternative for these 

organizations could be the use of substandard 

equipment by employees, inconsistent levels 

of employee protection, increased numbers of 

injuries, illnesses and fatalities, and 

employers having to expend resources on 

litigation to defend themselves. 

ASSE also related several instances 

where employees were providing their 

own eye protection, and failed to select 

eyewear meeting the OSHA standards, 

resulting in OSHA citations. The 

employers had mistakenly assumed that 

the employees were selecting the right 

equipment (Ex. 12: 110). 

In its 2004 comments on tools of the 

trade, ASSE reaffirmed its 1999 

arguments supporting PPE payment by 

employers and provided a list of quotes 

from several of their member safety 

engineers that supplement the views of 

OSHA’s expert panel. Some of those 

comments are: 

• It is just good business to provide [and 

pay for] equipment so that we control quality 

and type so that injuries are prevented. I’m 

sure we save far more in the long run by 

preventing injuries than we spend on PPE; 


jlentini on PROD1PC65 with RULES3
64386 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

• I have found that the PPE purchased by 

the employee to be old and worn out; 

• Employees generally should not be 

allowed to bring safety equipment on the 

jobsite * * * this insures that the 

equipment is in good condition and can be 

utilized; and 

• Where people provide their own tools, 

let alone PPE, there has been a resistance to 

keeping current with the best equipment and 

practices. As an example, I have seen people 

with sentimental value assigned to their hard 

hats that no longer meet manufacturers’

specifications (Ex. 46: 33). 

There are also large numbers of 

comments from employers who 

recognize the value of PPE payment, 

and supported some form of PPE 

payment requirement (See, e.g., Exs. 12: 

2, 4, 6, 9, 10, 12, 21, 58, 101, 105, 113, 

117, 134, 149, 184, 190, 210, 218, 230, 

247). Of particular interest are the 

comments of the Voluntary Protection 

Programs Participants’ Association 

(VPPPA), whose members have all 

implemented OSHA approved safety 

and health management systems. More 

than 1,500 workplaces have successfully 

completed OSHA’s Voluntary Protection 

Program (VPP) evaluation and audits, 

and have workplace injury and illness 

rates that are below the average for their 

industry. VPPPA, as well as VPP 

companies that commented on the 

proposed rule, supported employer 

payment for PPE (See, e.g., Ex. 12: 113). 

VPPPA remarked that: 

We commend OSHA for promptly moving 

forward in clarifying the law regarding 

employer payment for PPE. The Secretary of 

Labor v. Union Tank Car decision had little 

effect on our association’s members, who 

continue to believe that paying for their 

employees’ PPE is the most sound strategy 

for promoting a safe and healthy workplace. 

We expect that with promulgation of this 

rule, more workplaces will reach this 

conclusion and maximize protection for their 

employees (Ex. 12: 113). 

For these reasons, OSHA rejects the 

comments of some who argued that the 

proposed rule would have no direct 

impact on safety and health (see, e.g., 

Exs. 12: 14, 17, 22, 29, 31, 36, 41, 47, 

55, 65, 73, 82, 90, 91, 120, 121, 140, 172, 

194, 216, 225, 241) and that there was 

no proof of safety and health benefits 

(see, e.g., Ex. 12: 173, 189). The 

rulemaking record, examined as a 

whole, leads OSHA to the opposite 

conclusion. There are significant safety 

and health benefits of employer 

payment for PPE. 

Some commenters argued that 

OSHA’s estimate of the quantitative 

benefits was unreliable because it did 

not factor in the different types of jobs 

and PPE involved with the rule. The 

American Iron and Steel Institute (AISI) 

found to be problematic the Agency’s 

quantitative estimate of the incidence of 

PPE non-use or misuse when employees 

must pay for PPE as compared to 

employers paying for PPE. AISI argued 

that the estimate assumes that the 

training and behavior of employers and 

employees across all industries is the 

same, regardless of the nature of the 

hazard, the level at which employees 

are compensated, or whether there is a 

collective bargaining agreement which 

addresses the purchase of PPE (Ex. 12: 

188). OSHA agrees with AISI that 

different employers and employees have 

different behaviors regarding PPE. 

Therefore, the final rule may result in 

more safety and health benefits (and 

more costs) for some employers, while 

it impacts other employers less. 

However, as described above, the 

Agency believes that the overall impact 

of the rule will result in fewer 

occupational injuries and illnesses 

because it will improve the use of PPE 

in the workplace. 

Further, OSHA wants to emphasize 

that the quantitative benefits estimate in 

the final rule is not based solely on the 

opinion of one expert. OSHA has 

estimated the benefits of the final rule 

based on three different assumptions. 

Even under the most conservative 

assumption—that employer payment for 

PPE will result in a 2.25 percent 

decrease in the misuse or nonuse of 

PPE—the final rule will prevent 

approximately 2,700 injuries per year 

across all industries affected, a 

substantial number of injuries avoided. 

(For a complete discussion of OSHA’s 

benefits analysis, see section XV below.) 

Finally, some commenters argued that 

there was contrary evidence to OSHA’s 

conclusion that employer payment for 

PPE would result in benefits—namely 

state injury data in states with employer 

payment for PPE requirements. Two 

commenters raised the concept that, if 

PPE payment was effective at reducing 

workplace injuries and illnesses, an 

analysis of individual state occupational 

injury and illness rates should indicate 

a lower rate for those states that require 

PPE payment. They argued that the 

State of Minnesota, which has had a 

state law requiring employers to pay for 

all PPE, has injury and illness rates that 

are above those for the United States as 

a whole, and that if PPE reduced 

workplace injuries and illnesses, 

Minnesota should show a lower rate 

(Exs. 12: 173, 189). 

OSHA rejects this analysis for three 

reasons. First, the effect of PPE payment 

on the injury and illness rates may not 

be large enough to affect the rates, given 

that they are only reported at a general 

level. The Bureau of Labor Statistics 

(BLS) reported over 4,200,000 

workplace injuries and illnesses for 

2005, with a rate of 4.6 cases per 100 

full-time employees. Using these 

statistics, it would require a change of 

over 91,000 injuries and illnesses to 

move the U.S. rates by one tenth of a 

point, the most detailed estimate 

published by the BLS. If the entire 

estimated benefit of 21,789 averted 

injuries and illnesses occurred within 

one year, it would not be sufficient to 

change the U.S. rate by even one tenth 

of an injury or illness per 100 full-time 

employees. Therefore, while the effect 

of the rule on occupational safety and 

health is expected to be substantial, it is 

unlikely to dramatically affect the 

national statistics. The effect on statespecific statistics is similar, so it is not 

surprising that a pattern of lower rates 

is not readily apparent in the states that 

require PPE payment. 

Second, the states that require 

payment typically do so because the 

requirement is set forth in their enabling 

legislation. Because injury rates are not 

available for this time period it is not 

possible to perform a meaningful before 

and after analysis to determine 

observable effects due to PPE payment. 

Third, occupational injury and illness 

rates are affected by a large number of 

factors, many of which may not yet be 

identified, and there is considerable 

uncertainty concerning how they work 

in combination to affect overall rates. 

For example, the BLS rates are affected 

by the mix of industries within a state, 

weather conditions, large scale events 

(e.g. natural disasters), technology 

advances, work-practice customs, 

workers’ compensation insurance 

programs, workforce characteristics, and 

economic factors, such as changes in 

employment and productivity. Of 

course, OSHA recognizes that its 

policies also affect those rates, that 

changes in standards, new enforcement 

policies, and publicized OSHA 

enforcement cases have influence over 

workplace safety and health. Given the 

complex nature of state-specific injury 

and illness rates, it is difficult, if not 

impossible, to discern the effect of PPE 

payment policies on state-specific rates. 

Therefore, OSHA does not find the state 

plan argument to be persuasive. As 

noted in the benefits section below, the 

agency considered a wide range of 

injury reductions when assessing the 

effects of the standard. The Agency is 

confident, for all the reasons outlined, 

that this rulemaking will result in an 

overall reduction in injury rates and net 

benefits to society. 

For all of the reasons discussed above, 

and after careful review of all 

comments, the Agency concludes that 

the final rule will help reduce the risk 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64387 

16UPS also argued that the rule must meet the 

test for a safety standard and therefore, that OSHA 

must demonstrate a cost-benefit rationale for the 

rule. UPS misstates the legal test for safety 

standards. In UAW v. OSHA, 37 F.3d 665, 668 (D.C. 

Cir. 1994) (Lockout/Tagout II), OSHA declined to 

adopt a cost-benefit test for safety standards and the 

court accepted OSHA’s position. Nevertheless, 

OSHA has analyzed the costs and benefits of the 

rule. This analysis is contained in Section XV, Final 

Economic Analysis. 

associated with the underlying PPE 

standards. 

1. Significant Risk 

Some commenters argued that OSHA 

must find a significant risk from 

employers not paying for PPE and find 

that this rule would substantially reduce 

that risk (See, e.g., Exs. 12: 173, 188, 

189). AISI challenged OSHA’s 

arguments for requiring payment, 

asserting that the Agency had not 

clearly identified a significant risk of 

harm, that the Agency did not establish 

the ability of the PPE payment standard 

to reduce the risk, and did not establish 

that the requirements are cost effective 

(Ex. 12: 188, pp. 7, 8). UPS made the 

same arguments, adding that ‘‘OSHA 

has failed to even identify the existence 

of a significant risk of material 

impairment resulting from an employee 

paying for his own PPE’’ (Ex. 12: 189, 

p. 5).16 The PMA added that OSHA is 

required to make a threshold finding: 

[t]hat significant risks are present and can 

be eliminated or lessened by a change in 

practices before it can promulgate a standard 

under 29 U.S.C. 651(b). Specifically, OSHA 

must determine that significant risks of 

material impairment are present and can be 

eliminated or meaningfully lessened by a 

change in practices or equipment. For a 

health standard, this requires a significant 

risk of material impairment of health or 

functional capacity and a probability of 

significant benefit from a rule which would 

guard against such risk (Ex. 12: 173, pp. 13, 

14). 

These commenters’ misunderstand 

the legal underpinnings of this rule. In 

promulgating the underlying standards 

that require PPE, the Agency met its 

significant risk burden. As explained 

above, this is an ancillary provision that 

will help effectuate the use of PPE. And 

OSHA finds that it has clearly met the 

test that the proposed revisions to the 

existing PPE standards are reasonably 

related to their purpose of preventing 

injury by requiring the provision and 

use of adequate personal protective 

equipment. 

If employees are exposed to hazards 

not addressed by engineering, work 

practice, or administrative controls, and 

they are not provided with appropriate 

PPE, they may be injured, killed, or 

overexposed to dangerous chemicals, 

noise, or radiation. The risk is caused by 

failure of employers to provide their 

employees with appropriate PPE to 

guard against the workplace hazard, and 

the failure of both employers and 

employees to properly and consistently 

use appropriate PPE. The PPE payment 

provisions use payment practices to 

help reduce that risk. 

Employee injuries related to lack of 

appropriate PPE are common. OSHA 

has investigated hundreds, if not 

thousands, of accidents where lack of 

PPE contributed to workplace injury, 

overexposure to chemicals, and death. 

The following summaries from OSHA’s 

publicly available Integrated 

Management Information System (IMIS) 

accident investigations database provide 

just a few examples of the type of 

accidents where properly worn PPE may 

have allowed an employee to survive an 

accident, avoid injury or chemical 

exposure, or lessen the extent of injuries 

resulting from an accident. 

• In 2000, an employee dipping metal 

parts into a molten salt mixture was 

splashed with molten salt, resulting in 

second degree burns on both his arms 

and face. The employee was not wearing 

appropriate PPE to protect his arms, nor 

a face shield, even though the 

supervisor working next to him was 

properly equipped with PPE. 

• In 2000, a construction employee 

was using a hammer to break up tile 

during a dismantling operation. A piece 

of the tile flew back and struck his left 

eye, resulting in permanent blindness. 

• In 1999, an employee was working 

in the pouring area of a foundry without 

PPE, skimming hot molten metal into a 

sand mold. The mold broke and 

splashed molten metal onto the floor, 

where it ran into his boot. He received 

third degree burns to half of his foot and 

was hospitalized. 

• In 1999, a warehouse employee was 

struck on the head by a supporting bar 

that fell from above, receiving a head 

laceration that required hospitalization. 

The employee was not wearing any form 

of head protection. 

• In 1999, an employee building a 

cinder block wall was making a 

masonry line with a thread when the 

thread broke and struck him in the face, 

resulting in hospitalization to treat the 

complete loss of one eye and multiple 

fractures to his nose and face. The 

employee was not wearing any eye or 

face protection. 

• In 1998, an employee trimming 

trees was removing tree limbs from the 

ground, when a limb fell 30 feet and 

struck him in the head, resulting in his 

death. The employee was not wearing a 

hard hat. 

• In 1997, an employee was installing 

television cable from an aerial lift, 

wearing a baseball cap but not an 

insulating hard hat. The employee 

contacted an overhead power line with 

his head and was electrocuted. 

• In 1996, an employee’s foot was run 

over by a cart, resulting in a compound 

fracture of the foot. He was wearing 

tennis shoes instead of safety toe shoes. 

• In 1996, an employee was 

transferring a corrosive substance 

between storage tanks without eye 

protection. A small splash of the liquid 

struck him in the face and eyes, 

resulting in hospitalization. 

• In 1995, an employee working for a 

building maintenance service was 

cleaning a glass window without fall 

protection when he fell 70 feet and died. 

• In 1995, an employee was using a 

gas cutting torch to cut the metal shell 

of a rail tank car without welding PPE. 

The heat and flame of the torch set his 

work uniform on fire, resulting in burn 

injures that required six days of hospital 

treatment. 

• In 1995, a shipyard employee was 

attaching a 300 pound steel plate to a 

flange while not wearing protective 

footwear. The plate fell and struck his 

feet, resulting in partial amputation of 

his toes. 

Further, OSHA commonly finds PPE 

problems during its inspections. In 2006 

the Agency issued over 13,000 PPE 

violations, nearly 8,000 of them serious 

in nature. 

Finally, even if OSHA needed to find 

in this rule that employee payment for 

PPE is a significant risk and requiring 

employers to pay for PPE would 

substantially reduce that risk—which 

OSHA does not need to demonstrate—

OSHA’s estimate of injuries avoided 

meets that test. As set forth in detail in 

the benefits analysis, a conservative 

estimate of the beneficial impacts of the 

rule show that once promulgated, it will 

prevent approximately 2,700 injuries 

per year. This is a significant reduction 

in injuries by any measure and is based 

on the most conservative assumption 

with respect to the benefits of the final 

rule. (The highest estimate of the 

benefits of the final rule is that it will 

prevent 21,798 injuries per year.) 

One commenter disagreed with 

OSHA’s position taken in the 

proposal—and in the final rule—that the 

Agency need not make a significant risk 

finding for each provision in a standard. 

The AISI stated that OSHA’s position is 

‘‘[i]nconsistent with the Constitutional 

principles under which Congress 

delegated rule making authority to the 

agency, and contrary to the 

requirements of Sections 6(b) and 3(8) of 

the OSH Act as defined by the United 


jlentini on PROD1PC65 with RULES3
64388 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

States Supreme Court in the Benzene 

and Cotton Dust decisions’’ (Ex. 12: 188, 

p. 10). 

AISI’s interpretation of the OSH Act’s 

requirements for promulgating 

standards is incorrect. As the Supreme 

Court has stated and as discussed above, 

before promulgating a standard, OSHA 

must demonstrate that significant risk 

exists and that the standard will 

substantially reduce that risk. This 

requirement applies to the standard as 

a whole. OSHA is not required to make 

a provision-by-provision significant risk 

finding, which would be an impossible 

burden to meet. There are sometimes 

over a hundred different provisions in 

OSHA standards that operate together to 

reduce the significant risk faced by 

employees at the worksite. These 

provisions include exposure 

monitoring, medical surveillance, 

respiratory protection, protective 

clothing, training, hazard 

communication, information sharing, 

and so on. OSHA has never in the past, 

nor is it required to, make a significant 

risk finding for each of these provisions. 

In fact, this issue was squarely 

addressed in the review of OSHA’s 

hearing conservation standard, where 

the Fourth Circuit stated that the 

appropriate test was whether the 

individual requirements of the standard 

were reasonably related to the purposes 

of the enabling legislation (Noise, 773 

F.2d at 1447). 

2. Cost Effectiveness 

OSHA concludes that the final 

standard is also cost effective. A 

standard is cost effective if the 

protective measures it requires are the 

least costly of the available alternatives 

that achieve the same level of protection 

(Cotton Dust, 452 U.S. at 514 n.32). Cost 

effectiveness is one of the criteria that 

all OSHA standards must meet. The 

OSH Act does not support a 

requirement that imposes greater costs 

than available alternatives without any 

safety benefit. For employer payment to 

be more cost-effective, it must provide 

the same or better level of safety at a 

lower cost than permitting employers 

and employees to determine who pays 

for PPE. After carefully reviewing the 

rulemaking record, OSHA has 

concluded that this final rule is the most 

cost-effective of the available 

alternatives. 

OSHA considered the effect on safety 

of permitting employees to pay for PPE 

in comparison to imposing an employer 

payment requirement, with limited 

exceptions. (OSHA considered four 

specific alternatives to the final rule, 

which are discussed in more detail in 

the Alternatives Section above.) While 

there are many reasons why employer 

payment for PPE will increase safety 

and OSHA finds these reasons 

compelling, some commenters 

suggested reasons why employee 

payment may have some safety 

advantages in certain circumstances. 

A few commenters argued that safety 

would be enhanced when employees 

pay for PPE because they would be able 

to select PPE that is comfortable for 

them and they would take better care of 

its condition (see, e.g., Exs. 12: 31, 48, 

68, 140, 165, 203; 45: 5, 6; 46: 4, 17, 32, 

42). For example, a representative of 

HBC Barge stated in a written comment 

that: ‘‘By having the employee pay for 

PPE that is classified as ‘tools of the 

trade’ the effect on workplace safety and 

health can only be positive. Ownership 

of equipment on the average will bring 

a pride in maintaining their equipment 

in proper working order’’ (Ex. 46: 4). A 

representative of the National Rural 

Electric Cooperative Association 

commented that: 

If employees pay for their own tools-of-thetrade PPE there is a greater likelihood of 

accurate fitting to the individual and a 

greater likelihood that individual preferences 

will be met. As a result, employees are more 

likely to wear PPE that they provide 

themselves. The more that workers wear 

appropriate PPE, the safer is the workplace 

(Ex. 46: 42). 

The National Electrical Contractors 

Association (NECA) stated that 

employees who work on construction 

sites were in the best position to provide 

certain personal protective equipment 

and tools, and suggested that safety 

could be compromised in some 

situations where employers provide the 

equipment to be shared by employees: 

Certain Lineman’s tools have long been 

considered ‘tools of the trade.’ Lineman’s 

belts must be measured and sized to fit the 

individual employee. Exchanging such belts 

with other employees would cause belts to 

have wider or smaller loops, which could 

lead to dropped tools. For fall protection, 

Lineman’s hook gaffs are sharpened to the 

‘taste’ of the lineman, hooks are individually 

adjusted to the lineman’s calf length and 

preference, and hook pads are broken in to 

fit the individual for fatigue and stress 

reduction. Constantly transferring hooks, 

belts, and safeties would cause a 

disconcerting concern for linemen (Ex. 12: 

16). 

NECA also commented that flameresistant clothing is best purchased by 

the employee, in part because the 

employee can better ensure daily care, 

proper fit, and adequate laundering of 

the clothing, which ‘‘[i]s vital to the 

longevity of the clothing and health of 

employees * * * ’’ (Ex. 12: 16). 

These and other commenters stated 

that employees who regularly carry the 

same PPE from job to job may have 

greater familiarity with their PPE than 

employees who are provided new PPE 

each time they work for a new 

employer. This consistency may also 

assure employees that the PPE they will 

be using is best fitted and suited to their 

own needs. Given this, these 

commenters suggest that it may be more 

cost-effective for employees in some 

industries with high turnover rates to 

supply basic PPE such as hardhats, 

safety glasses, and gloves that can be 

carried easily from establishment to 

establishment. 

OSHA does not agree with 

commenters that employee payment 

will result in greater safety benefits than 

the final rule. As discussed in detail 

above, OSHA finds that the final rule 

will result in significant benefits for 

employees and will reduce the risk 

underlying the existing PPE standards. 

Employers are in the best position to 

know and address the hazards in their 

workplaces, and payment for PPE will 

provide an incentive to better 

understand those hazards and take 

appropriate measures to ensure PPE is 

used by their employees. The 

rulemaking record strongly supports 

OSHA’s finding of safety benefits from 

the final rule. 

The commenters who suggested 

greater safety benefits under an 

employee payment scenario seem to 

base their suggestion on the fact that 

since PPE is ‘‘personal,’’ if employees 

select and purchase it, it will be more 

suited to their tastes and they will wear 

it more often. While it is true that PPE 

is more effective when it is suited to the 

size and fit of the employee, OSHA does 

not believe that this is relevant to the 

question of whether employers or 

employees should pay for the PPE. The 

employer is responsible under existing 

OSHA standards to ensure that the right 

PPE is used in the workplace and that 

it fits the employee; OSHA has found, 

on the basis of this rulemaking record, 

that an employer payment requirement 

will help ensure that employers carry 

out this responsibility. OSHA does not 

believe that having employees pay for 

the PPE will result in improved 

employee use of the equipment. 

In addition, OSHA has crafted the 

final rule in a cost effective manner. It 

recognizes the safety benefits of 

employer payment for most types of 

PPE, but exempts certain PPE from the 

general payment requirement. Much of 

the exempted PPE can be used off of the 

job and is the kind of PPE that 

employees may take with them from job 

to job or employer to employer. The 

final rule also specifically recognizes 

that OSHA standards allow for 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64389 

employees to bring on the worksite and 

use PPE that they already own. Thus, 

the final rule addresses much of the 

cost-effectiveness concerns raised by 

commenters for certain PPE in highturnover industries. 

OSHA also believes that employer 

payment for PPE will result in PPE 

purchases that are on the whole less 

costly than if employees paid for the 

PPE. Employers can frequently utilize 

bulk purchase discounts, which means 

that the same amount of PPE will be 

provided at a lower cost, or more PPE 

will be provided for the same cost. 

Requiring individual employees to 

purchase individual pieces of 

equipment is not an efficient way to 

provide this critical protection. 

Finally, according to OSHA’s survey 

data, the vast majority of employers, 

found in all industries, are already 

paying for all of their employees’ PPE. 

OSHA does not believe this would be 

the case if employer payment was not 

cost effective. This demonstrates that 

most employers have made a business 

decision that paying for PPE is a cost 

effective method of providing protection 

for their employees. 

XV. Final Economic and Regulatory 

Flexibility Analysis 

A. Introduction 

OSHA has prepared this Final 

Economic Analysis to examine the 

feasibility of the rule on Employer 

Payment for Personal Protective 

Equipment and to meet the 

requirements of Executive Order 12866 

and the Regulatory Flexibility Act (as 

amended). The rule will clarify that, 

with certain exceptions, employers are 

required to pay for protective 

equipment, including personal 

protective equipment (PPE), whenever 

OSHA standards mandate that 

employers provide such equipment to 

their employees. The employer is not 

required to pay for non-specialty safetytoe protective footwear (including steeltoe shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

The employer is also not required to pay 

for the logging boots required by 29 CFR 

1910.266(d)(1)(v); everyday clothing, 

such as long-sleeve shirts, long pants, 

street shoes, and normal work boots; or 

ordinary clothing, skin creams, or other 

items, used solely for protection from 

weather, such as winter coats, jackets, 

gloves, parkas, rubber boots, hats, 

raincoats, ordinary sunglasses, and 

sunscreen. 

OSHA’s requirements for PPE appear 

in many health, safety, shipyard 

employment, marine terminal, 

longshoring (referred to as maritime 

standards), and construction standards. 

In some cases, the standard is explicit 

in stating that employers are to provide 

the PPE at no cost to the employee (see, 

for example, OSHA’s substance-specific 

health standards, which are codified in 

Subpart Z of 29 CFR 1910.1000). In 

other cases, however, such as in 

paragraph (a) of 29 CFR 1910.132 and 

paragraph (a) of 29 CFR 1926.28, who is 

required to pay for the PPE is not 

expressly specified. (For a complete list 

of OSHA’s PPE requirements, see the 

Summary and Explanation section, 

above.) 

This rule will apply to general 

industry, construction, and maritime 

workplaces covered by the PPE 

provisions in existing OSHA standards. 

The rule will clarify OSHA’s position 

that, with the exceptions noted, 

employers must provide required PPE to 

their employees at no cost to those 

employees. The kinds of PPE addressed 

by this rule include nonprescription eye 

and face protection; hard hats; 

metatarsal protection; gloves and 

protective clothing; fall protection and 

welding equipment; and hearing 

protection. (A more detailed list of the 

kinds of PPE covered appears in the 

Summary and Explanation section, 

above.) 

B. Need for the Rule and Market Failure 

The justification for imposing 

appropriate occupational safety and 

health standards generally, and for 

adopting this change to the PPE 

standards in particular, is that without 

these requirements, fatality and injury 

risks to employees would remain 

unacceptably high. OSHA has 

determined that this rule meets the 

standards for regulation established by 

Congress through the passage of the 

Occupational Safety and Health Act. In 

addition, risks would be too high in 

terms of imposing large net costs (both 

pecuniary and non-pecuniary) on 

society, producing an inefficient 

allocation of resources, and reducing 

overall social welfare. 

OSHA has found that in this case, 

market incentives alone are unable to 

allocate sufficient resources to provide 

for social welfare enhancing 

improvements in safety and health. By 

itself, however, the existence of 

constraints which prevent optimal 

efficiency would not necessarily justify 

regulatory intervention because 

regulations themselves may introduce 

costs, rigidities, and distortions. 

However, in this case the negative 

consequences of not regulating are 

outweighed by the net benefits of 

regulation. The sources of market failure 

could include the existence of 

externalities, the high cost of or lack of 

necessary information, including large 

uncertainties that are costly to remedy. 

Measures for improving occupational 

safety and health involve significant 

externalities. The consequences of an 

injury or fatality usually extend beyond 

the affected employee and employer. A 

substantial part of the emotional and 

financial costs associated with an injury 

or fatality is often borne by third parties 

that are not compensated for their costs, 

including other workers, families and 

friends. Thus, a substantial part of the 

benefits associated with improvements 

in safety and health is externalized. As 

a result, even a mutually agreeable 

arrangement between employers and 

employees could represent a socially 

undesirable outcome. 

A second market failure concerns the 

cost of and lack of necessary and 

sufficient information. The risks of 

injuries or fatalities specific to a 

particular job at a particular firm for a 

future time period are difficult to know 

or predict. The compilation of more 

detailed and current information on 

employer- and job-specific risks could 

provide improvement, but at immense 

cost, difficulty, and controversy. For 

example, such risk estimates would 

have to take into account the presence 

or absence of any number of 

combinations of controls or procedures 

in the context of innumerable different 

circumstances. Without adequate 

information regarding occupational 

risks and how they may be affected by 

innumerable diverse factors, employer 

and employee negotiations regarding 

pay and working conditions may not 

adequately reflect the nature of such 

risks. Typically, the employee will be at 

a disadvantage in assessing and 

controlling these risks, especially with 

regard to employer- and worksitespecific considerations; in addition, 

employers are not always fully aware of 

the nature of risks, the full costs 

associated with an injury incident, the 

extent to which they can be reduced, 

and the methods and resources that can 

achieve reductions in risk. 

A third source of market failure 

involves the high costs and 

uncertainties associated with attempts 

at restitution. The costly nature of the 

legal system, together with the 

uncertainties associated with the 

outcome of cases, limits the prospect for 

tort liability to create the proper 

incentives. Problems with tort liability 

laws have been recognized for decades 

and were partially addressed through 

the establishment of no-fault workers’

compensation programs in every state. 


jlentini on PROD1PC65 with RULES3
64390 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

17This rulemaking primarily affects non-State 

Plan States, as the majority of employees in State 

Plan States are already covered by requirements 

equal to or greater than this final rule. 

Approximately 59 percent of U.S. private sector 

workers work in states not covered by OSHA State 

Plans for the private sector [BLS, 2004], and are 

thus affected by this rule. 18This figure includes payment for all types of 

safety shoes. 

However, even the workers’

compensation systems do not 

adequately correct the market failures 

because insurance rates are frequently 

not employer-specific, coverage and 

compensation are only partial, and the 

outcome still leaves injury and fatality 

rates above levels achievable through 

cost-effective regulatory requirements. 

This rule is a response to these market 

failures. When it promulgated the OSH 

Act, Congress noted the failure of the 

market to prevent a significant number 

of occupational injuries and fatalities. 

Congress concluded that promulgation 

of the OSH Act was necessary to create 

a safe and healthful working 

environment. As stated by Senator 

Cranston: 

[T]he vitality of the Nation’s economy will 

be enhanced by the greater productivity 

realized through saved lives and useful years 

of labor. When one man is injured or 

disabled by an industrial accident or disease, 

it is he and his family who suffer the most 

immediate and personal loss. However, that 

tragic loss also affects each of us. As a result 

of occupational accidents and disease, over 

$1.5 billion in wages is lost each year (1970 

dollars), and the annual loss to the gross 

national product is estimated to be over $8 

billion. Vast resources that could be available 

for productive use are siphoned off to pay 

workmen’s compensation and medical 

expenses * * *. Only through a 

comprehensive approach can we hope to 

effect a significant reduction in these job 

death and casualty figures (Id. at 518–19). 

As explained in detail above, Congress 

established that employers should bear 

the cost of creating a safe and healthful 

workplace, and thus directed them to 

comply with health and safety standards 

promulgated by OSHA. This rule is 

consistent with the OSH Act to the 

extent this rule simply clarifies 

Congress’s determinations that 

employers must bear the cost of 

compliance with OSHA standards. 

OSHA has also determined that the 

rule is necessary to further reduce the 

significant risk associated with OSHA’s 

standards requiring the use of PPE. It 

has become clear that employees 

frequently fail to perceive the risk of 

having worn out PPE. Furthermore, the 

workers’ compensation system, aside 

from raising the cost of restitution, has 

introduced distortions into the market. 

Workers’ compensation premiums are 

frequently not experience-rated; many 

employers are thus given limited 

incentive to reduce injuries—they end 

up paying the same amount into the 

system regardless of the level of safety 

at the workplace. 

In most OSHA rulemakings, the cost 

of providing safety falls squarely on the 

shoulders of the employer, although in 

efficient markets, the cost of rulemaking 

may be passed on, to an extent, to other 

market participants such as employees 

and consumers. Regardless, our research 

has shown that often employers pay for 

PPE. However, OSHA has also found in 

this analysis that requiring all 

employers to pay for all PPE, with few 

exceptions, leads to a better regulatory 

outcome. For example, with workers’

compensation benefits paid to the 

employee remaining fixed under state 

law, the employee’s incentive to acquire 

proper PPE or replace it in a timely 

manner may be less than the total costs 

associated with a possible accident as a 

result of the assurances provided by the 

workers’ compensation system. The 

risky and tragic results of this market 

distortion are written about extensively 

in the Legal Authority section of the 

preamble. One way to correct this is to 

require that employers pay for PPE. 

The PPE payment rule will improve 

efficiency and social welfare by 

producing net benefits in conjunction 

with correcting the deleterious 

outcomes resulting from the market 

failures associated with the protection 

of occupational safety and health. 

C. Nonregulatory Alternatives 

Market failures in general can often be 

addressed through approaches other 

than regulation, and OSHA considered 

the potential for such approaches for the 

market failures in the market for 

occupational safety and health. For 

example, additional and more readily 

available information regarding 

occupational risks and practical 

solutions relevant for particular 

workplaces could help raise awareness. 

Efforts to provide direct assistance for 

reducing risks could be expanded. 

As a practical matter, however, 

frequently regulation is required to 

facilitate the transmission of 

information. As outlined in the Legal 

Authority section, one goal of the rule 

is to clarify the responsibility for 

providing PPE. In the absence of clear 

lines of responsibility stretching back to 

the employer, there is often a failure to 

provide the information. On another 

level, the failure of the employer to pay 

for the PPE is interpreted by the 

employee as a sign the employer is not 

serious about the importance of safety 

and health. 

OSHA intends to continue to strive to 

address occupational hazards through 

these alternatives to regulation where 

appropriate. However, due to the nature 

of the market failures as described 

above, these measures by themselves 

would not sufficiently reduce risks. As 

outlined in the Legal Authority section, 

not only is there a significant risk 

existing to employees from the lack of 

adequate PPE, but the OSH Act 

implicitly requires employers to pay for 

it. OSHA concludes that for the hazards 

requiring PPE, a mandatory standard 

clearly setting forth an employer’s 

obligation to pay for PPE is necessary, 

just as it is for engineering and work 

practice controls. 

D. Industry Profile 

The rule is concerned only with who 

pays for OSHA-required PPE; that is, it 

will not require employers to provide 

PPE where none has been required 

before. Instead, the rule merely 

stipulates that required PPE be paid for 

by the employer. If all employers are in 

full compliance with requirements that 

PPE be provided, then PPE is already 

being paid for by either the employer or 

the employee, and the rule will shift the 

cost of that portion of the PPE currently 

being paid for by the employee to the 

employer. (See the Legal Authority 

section of the preamble, above, for 

details of OSHA’s interpretation of this 

issue.) Such a shift in who pays the 

costs will represent a transfer within the 

economy and not a net cost to the 

economy. However, to the extent that a 

change in payment results in more or 

better PPE being used, then this rule 

will lead to costs and benefits to the 

economy. OSHA believes that this rule 

will result in improved PPE use and, 

thus, will lead to both social costs and 

benefits. This issue is discussed in more 

detail below. 

To determine the extent of current 

PPE usage, the potential magnitude of 

any shift in costs, and possible social 

costs, OSHA has developed a profile of 

industry PPE use and payment 

patterns.17 Most employers are already 

paying for the PPE they provide to their 

employees to comply with OSHA 

standards. The most recent study of 

collective bargaining agreements 

showed that 55 percent of contracts 

mentioning safety equipment stipulate 

that employers are to pay for PPE, while 

only 11 percent of such agreements 

require the employee to pay for any 

PPE 18 (BNA, 1995). Employers 

currently pay for PPE for a variety of 

reasons: Because of labor-management 

agreements; for workers’ compensation 

purposes; because if employers pay for 

the PPE, they know what kinds of PPE 

their employees are using and they can 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64391 

19For example, SICs 75 (Auto Repair) and 76 

(Miscellaneous Repair Services) were consolidated 

into NAICS 811, Repair and Maintenance. 

ensure that it is replaced when needed; 

and because they can require 

standardized procedures for cleaning, 

storing, and maintaining it. Employers 

can control what PPE is used and how 

it is used, and thus can have greater 

assurance that they are in fact in 

compliance with OSHA’s standards, and 

can ensure they will minimize any 

liabilities associated with accidents 

preventable by proper PPE use. Other 

reasons why employers prefer to pay for 

PPE, according to the expert panel 

convened by OSHA to obtain 

information on PPE patterns of use and 

payment for the proposed rule, are: 

• The employer has experience with 

injuries that could have been prevented 

by PPE use; 

• The employer has received input 

from his/her insurance carrier; 

• The employer is concerned about 

the likelihood of an OSHA inspection 

(Ex. 1). 

E. Data on PPE Usage Patterns 

The data relied on to develop this 

industry profile come from a large-scale 

nationwide telephone survey of 3,722 

employers conducted for OSHA by 

Eastern Research Group (ERG) in 1999 

(Ex. 14). The survey collected 

information on the extent to which 

employers currently pay for their 

employees’ PPE in the general industry, 

construction, and maritime sectors. 

Three basic types of information were 

collected about eight categories of PPE: 

(1) Is the PPE used at the respondent’s 

establishment?; (2) How many 

employees use the PPE?; and (3) Who 

pays for the PPE? The survey report 

describes the sample design, 

disposition, and weighting of the 

responses. This survey constitutes the 

best available evidence regarding PPE 

usage patterns. 

OSHA did not rely on this survey in 

formulating its industry profile for the 

proposed rule because the survey was 

completed after the proposed rule was 

published. However, OSHA made the 

survey available in its public docket 

when it was completed in June 1999, 

and provided the public an opportunity 

to comment on its design and 

methodology (64 FR 33810). Some 

stakeholders commented on the survey 

and OSHA has carefully considered 

those comments. OSHA also thoroughly 

reviewed the results and the 

methodology of the survey in preparing 

this final rule and made some 

adjustments to it. 

In particular, OSHA made two 

adjustments to the results of the survey 

to better reflect PPE usage patterns. 

First, the Agency realized that retaining 

the weights for numbers of employees 

assigned from the original Dun’s 

database identifiers was resulting in 

misleading information in some cases. 

OSHA has therefore reweighted the 

survey responses for numbers of 

employees based on actual information 

from the survey (ERG, 2007). Second, in 

order to benchmark the data to recent 

Census figures, ERG converted the 

original Standard Industrial 

Classification (SIC)-based results to a 

North American Industrial 

Classification System (NAICS)-based 

industry profile. In most industries, the 

two-digit SICs mapped directly into 

their three-digit NAICS counterpart. 

Some industries (e.g., maritime) mapped 

directly at a greater level of detail. In 

other industries, it was necessary to 

consolidate a few two-digit SICs into a 

single three-digit NAICS code.19

Table XV–1 shows OSHA’s estimate, 

based on the survey, of the extent of PPE 

use in the non-State Plan State 

workplaces covered by the rule. A total 

of 24.9 million employees are estimated 

to wear one or more kinds of PPE in 

workplaces within OSHA non-State 

Plan States. Non-prescription safety 

glasses are worn by approximately 11.3 

million employees, while 9.2 million 

employees wear gloves for abrasion 

protection, 6.5 million wear safety 

goggles, 5.8 million wear gloves for 

chemical protection, and 5.7 million 

wear hardhats. Industries with the 

largest number of PPE-wearing 

employees include administrative and 

support services (NAICS 561), with 1.9 

million such employees; specialty trade 

contractors (NAICS 238), with 1.8 

million such employees; and 

professional, scientific and technical 

services (NAICS 541), with 1.7 million 

employees. There are also four other 

industries with more than one million 

PPE-wearing employees each: wholesale 

merchants—durable goods (NAICS 423), 

ambulatory health care services (NAICS 

621), hospitals (NAICS 622), and food 

services and drinking places (NAICS 

722). In many cases, much of the PPE 

needed is concentrated in particular 

items, such as gloves. 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
64392 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


jlentini on PROD1PC65 with RULES3ER15NO07.017</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64393 


jlentini on PROD1PC65 with RULES3ER15NO07.018</GPH>
64394 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


jlentini on PROD1PC65 with RULES3ER15NO07.019</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64395 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.020</GPH>
64396 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

20Most items are either paid for by the employer 

or employee. However, some establishments, 

particularly for footwear, have established a variety 

of shared payment systems. In these systems, 

employers typically pay approximately 50 percent 

of the shared cost. 

Table XV–2 lists the rate of employer 

payment for various PPE item 

categories, as indicated in OSHA’s 1999 

survey. For nearly all industries, 

payment rates are very high—in excess 

of 90 percent. The largest exception to 

this pattern is marine cargo handling 

(NAICS 48832), averaging 78 percent for 

all items covered by this rulemaking. 

For most PPE items, rates of employer 

payment are very high—ranging 

between 96 percent for welding 

protective gear to almost 99 percent for 

eye and face protection. The primary 

exception to this pattern is foot 

protection (including metatarsal 

protection and chemical protective 

footwear, but not safety-toe shoes), for 

which the employer payment rate 

(including some sharing) is between 50 

percent and 55 percent .20 For all items 

except footwear, employers pay an 

average of 96.5 percent of the cost. For 

the items covered by this final rule, 

including metatarsal guards, weighted 

by the total societal cost (both the 

employee and employer share) of the 

various items, employers are currently 

paying approximately 95 percent of the 

costs of PPE. 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64397 


jlentini on PROD1PC65 with RULES3ER15NO07.021</GPH>
64398 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.022</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64399 

21The ‘‘non-completes’’ were divided primarily 

between ‘‘refusals’’ and ‘‘not available’’. ‘‘Refusal’’

is a term of art with regard to surveys which 

denotes respondents who tell the questioner 

explicitly that they do not wish to participate in the 

survey. ‘‘Not available’’ describes the group of those 

who could not be reached; most ‘‘non-completes’’

were ‘‘not available’’, as opposed to ‘‘refusals’’. 

22As discussed in the ERG report [Ex. 14], the 

survey targeted three employment size 

establishment strata, Stratum 1 (1–19 employees), 

Stratum 2 (20–499 employees), and Stratum 3 (500 

or more employees), to ensure that each size group 

was adequately represented in the sample. 

A few comments (Ex. 12: 173, 189) 

suggested that OSHA should compare 

survey response rates to make sure there 

is no bias. It was suggested that given 

that employers were aware OSHA was 

conducting a survey of employer 

payment for PPE, they tried to avoid 

participating in the survey, despite the 

assurance of confidentiality. It was 

further asserted that ‘‘a substantial 

percentage of the ‘not available’ category 

consists of employers who, if contacted, 

would have explicitly refused to 

participate’’ (Ex. 12: 173, 189). 

Presumably, these employers would 

avoid participation or refuse to 

participate because they do not 

currently pay for their employee’s PPE. 

This, in turn, could have inflated the 

survey’s findings of the percentage of 

employers paying for PPE. 

OSHA disagrees with these comments 

and believes that survey bias did not 

have a significant impact on the data 

used. First, most of the establishments 

listed as ‘‘non-completes’’ were not 

refusals.21 Of the 53 percent of noncompleted phone calls, 37.5 percent 

were not available; only 14.9 percent 

refused to participate. Many simply 

could not be reached given the time 

allotted for the survey. As described by 

ERG (Ex. 14, pp. 66–67): 

[a]mong the 2,963 not-available 

respondents, 1,862 (62.8 percent) were called 

fewer than six times. This group of potential 

respondents was drawn almost entirely as 

part of the supplemental sample, and, as 

noted, interviewers stopped calling them 

when simple targets were achieved near the 

end of the survey. For stratum-one, notavailable respondents, fully 68 percent (1,407 

out of 2,065) were part of this supplemental 

sample group that was called fewer than six 

times. If calling had continued so that each 

of these numbers had been called at least six 

times, the response rate would have been 

significantly higher. Doing so, however, 

would have resulted in oversampling the 

stratum one respondents. The response rate 

for stratum-one establishments in the 

primary sample was 52.6 percent; by 

comparison, the response rate for stratumone establishments in the entire sample was 

34.7 percent.22

Comments speculating that employers 

were attempting to avoid mentioning 

that they do not pay for PPE and thus 

did not respond (Ex. 12: 173, 189) also 

suggested that the survey was more 

likely to be avoided by large employers: 

Knowledgeable employers, especially large 

employers who employ the bulk of the 

workforce, are aware of OSHA’s demands 

that employers should purchase personal-PE 

* * *. Accordingly, employers who do not 

pay for personal-PE would be less likely to 

respond to a survey about payment for 

personal-PE for fear of adverse action by 

OSHA. This fear is the most obvious 

potential bias to the survey, yet ERG made no 

attempt to test it. 

In fact, the survey results showed just 

the opposite pattern. Larger employers 

(strata 2 and 3) generally showed higher 

rates of response to the survey than 

smaller employers (stratum 1) (61.7 

percent and 58 percent for strata 2 and 

3, as opposed to 34.7 percent complete 

responses for stratum 1) (Ex. 14, Table 

13). This stands in stark contrast with 

the refusal rate for the survey, which 

was fairly constant between 14.6 and 

15.5 percent across the three strata. The 

lower response rate for stratum 1 

employers was entirely due to the ‘‘not 

available’’ segment. Smaller employers 

are less likely to maintain a daytime 

office staff, thus making it more difficult 

to reach them to conduct a survey. This 

may be particularly true for the 

construction industry, which accounted 

for nearly half of the total called sample; 

fully one-third of the entire called 

sample were construction employers 

with fewer than 20 employees (Ex. 14, 

p. 66, Table 12). In short, the pattern of 

nonreponse is consistent with a simple 

inability to reach people on the phone, 

not a refusal to participate for fear of an 

adverse action from OSHA. 

Second, the response rate is not 

unusually low for surveys conducted in 

the last decade. It is well documented 

that the public at large, and probably 

employers in particular, are suffering 

from an element of ‘‘survey fatigue’’, 

given the large number of survey 

requests over the phone and on the 

Internet—people are simply less likely 

to agree to do any particular survey, 

unless there is direct payoff. In addition, 

individuals and employers are more 

likely to ‘‘hide’’ behind voice mail and 

answering machines than they were a 

few decades ago (Curtain, et al, 2005). 

Thus, it would be improper to assume 

that the failure to participate represents 

a response to this particular survey. 

Third, an analysis of the response rate 

of small establishments in the survey 

suggests that many of the very small 

establishments OSHA did not reach 

simply were not under OSHA 

jurisdiction by virtue of being selfemployed: 

[t]he average size of not-available 

establishments, as reported by D&B, was 

compared to that of establishments that 

completed the survey. For stratum-one 

respondents, the average D&B–reported 

employment size of not-available 

establishments was 3.9, compared to 5.6 for 

those who completed the survey. The 

relatively small size of the not-available 

establishments, however, is misleading 

because respondents for some of these 

(especially those for whom D&B reported a 

single employee) would have indicated, if 

they had been reached, that they were selfemployed; their establishments, therefore, 

would have been judged out-of-scope. 

Among successfully contacted respondents 

with five or fewer employees (as reported by 

D&B), 56.3 percent reported they were selfemployed. If the not-available respondents in 

stratum one were as likely to be selfemployed as those successfully contacted, 

the average reported employment, adjusted 

for the projected number of screen-outs at 

each employment level, would be 5.3. This 

is very close to the average employment for 

stratum-one respondents who completed the 

survey (Ex. 14, pp. 67–69). 

A potential source of bias not 

discussed in comments was the 

possibility that the nonresponders 

skewed the sample in favor of 

employers who used PPE (as opposed to 

those employers who paid for PPE). It 

may be that a disproportionate 

percentage of people who either 

declined to be interviewed directly, or 

simply did not return phone calls did so 

because they considered the survey 

inapplicable to their workplace because 

they do not use PPE. In that case, the 

sample ended up with a 

disproportionate number of PPE users. 

In any case, the estimated number of 

PPE–using establishments 

approximately doubled between the 

analysis in the proposed rule and the 

analysis here, after incorporating the 

results of the 1999 survey. In fact, the 

estimated costs in this final analysis are 

higher than they were for the proposed 

rule in large part due to significantly 

greater reported use of PPE in certain 

items than indicated in the previous 

OSHA telephone survey on PPE in 1989. 

For example, the proposed rule, based 

on the 1989 survey data found 10.6 

million employees using chemical and 

non-chemically protective gloves (64 FR 

15417). The 1999 survey found a 

combined total approximately 50 

percent higher. Much of this increase 

may have been related to the 

effectiveness of the 1994 PPE 

rulemaking at increasing the use of the 

PPE. At the same time, employers may 

not have bothered to participate in the 

survey because they simply did not use 

PPE, thus skewing upward the numbers 

of employers using PPE. OSHA has no 

specific information that this occurred; 


jlentini on PROD1PC65 with RULES3
64400 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

23This analysis does not examine the impact of 

the rule on occupational illnesses, such as contact 

dermatitis prevented by chemically protective PPE, 

but OSHA is confident the rule will produce 

additional benefits not accounted for here. 

24OSHA extrapolated total injuries by body part 

from the number of detailed lost workday cases 

with days away work [BLS, 2006b] by multiplying 

by the overall ratio of total recordable cases [BLS, 

2006a] to cases with days away from work. Body 

parts not included in this analysis: Trunk (e.g., back 

& shoulder); wrist and other upper extremities 

except hand and finger; knee and other lower 

extremities except foot and toe; body systems, 

multiple body parts; and ‘‘other body parts’’. 

Together these excluded cases account for about 

75% of LWD injuries. 

25To calculate the preventability factors, OSHA 

reviewed 1,170 OSHA Form 200s describing almost 

64,000 injuries. The profile of injuries, as defined 

by body part, very closely tracked those in BLS’s 

injury data base [OSHA 1994, pp. V–11–13]. 

Information on the nature of the injury and the 

circumstances surrounding the accident was used 

to determine the extent to which PPE would have 

prevented the injury. 

if it did, however, then the cost to 

employers (and society) would be less 

than estimated in this analysis. The 

Agency does not believe the costs are 

overestimated in this regard, but 

acknowledges that there are several 

different potential, and at least partially 

offsetting, sources of bias in the survey 

results. 

OSHA recognizes that the existence of 

non-responses is a source of uncertainty 

with regard to the costs and benefits of 

the standard. The Agency has performed 

a sensitivity analysis to probe the effects 

of underestimating the extent to which 

employees currently pay for PPE. 

Finally, it should be noted that absent 

vastly greater resources and a 

substantially greater level of intrusion 

on employers, it would be impossible, 

even on a subsample of the survey 

responders, to verify whether or not the 

behavior of non-responders is 

significantly different than responders. 

Given that many employers could not be 

reached by phone, it ultimately might be 

necessary to send someone in person to 

interview the non-responders. OSHA is 

limited in its resources and would be 

unable to perform this type of analysis. 

On balance, OSHA is confident that the 

results of this survey represent the best 

available evidence on the profile of 

payment patterns for PPE in industry. 

F. Technological Feasibility 

This rule does not change any PPE 

requirements, but affects only the issue 

of who pays for PPE required by OSHA 

standards. These PPE requirements have 

already been found to be technologically 

feasible in other rulemakings. Personal 

protective equipment is widely 

manufactured, distributed, and used in 

workplaces in all of the industries 

covered by OSHA standards. The rule 

thus raises no issues of technological 

feasibility. 

G. Benefits of the Final Rule 

OSHA concludes in this final rule that 

when employers do not provide and pay 

for PPE, it is often not worn, is worn 

improperly, or is not cared for and 

replaced appropriately. (See the Legal 

Authority section for OSHA’s analysis 

of this issue.) When employees are 

required to pay for their own PPE, they 

are likely to minimize PPE costs and 

thus fail to purchase proper personal 

protective equipment. Further down the 

wage scale, these problems can be 

expected to worsen, and employees will 

be less likely to purchase adequate PPE 

and replace it when necessary, and are 

more likely to make cosmetic repairs, 

hide defects, or purchase used PPE aged 

beyond its service life. 

Thus, at least two problems can occur 

when employers fail to pay for PPE: 

Either the PPE is not worn in cases 

where it is needed to protect against 

injury or illness, or the PPE that is worn 

is inadequate. The consequences of 

these failures are the same: Employees 

are exposed to chemical, physical, or 

safety hazards in the workplace, which, 

in turn, result in injuries, illnesses, and 

death. 

In the proposed rule, OSHA estimated 

the quantitative differences in the 

misuse or nonuse of PPE when 

employers pay for PPE versus when 

employees pay for PPE. OSHA 

preliminarily determined that the rate of 

nonuse or misuse of PPE would be 

approximately 40 percent for employee 

purchased PPE verses 15 to 20 percent 

for employer purchased PPE. This 

quantitative estimate was provided by 

one member of OSHA’s expert panel, 

but was consistent with the statements 

of other panelists, as well as with 

OSHA’s enforcement and regulatory 

experience. Most panel members 

indicated that if the employer did not 

pay for PPE, the PPE was typically not 

fully provided, in some cases falling 

short by a wide margin. While 

commenters disagreed on whether the 

underlying premise behind employer 

payment for PPE was correct, there were 

no alternative point estimates provided 

(other than stating there was no 

difference between the two) to the 

aforementioned estimates. Thus, in this 

final rule, OSHA is continuing to use 

the point estimates given in the 

proposal as a basis for the benefits in the 

final rule. (However, as explained 

below, OSHA has also conducted a 

sensitivity analysis to evaluate concerns 

by commenters that OSHA’s benefits 

estimate in the proposal was too high.) 

1. Benefits From Injuries Prevented 

To estimate the benefits of the final 

rule OSHA calculated the total number 

of injuries prevented annually by 

requiring employers to pay for PPE by 

body part. OSHA used the point 

estimates above and the steps which are 

illustrated in Table XV–3. 

OSHA determined the number of 

injuries judged to be preventable by 

multiplying the total number of 

injuries 23 by body part (derived from 

2005 lost work day data and shown in 

column A) 24 by the preventability 

factors OSHA developed in 1994 for the 

types of PPE examined (column B) (59 

FR 16352).25 In the 1994 analysis, most 

injuries were not considered 

preventable by PPE. For example, 

sprains and strains (nature) and injuries 

caused by overexertion (circumstance), 

were not considered to be preventable 

by PPE. On the whole, approximately 

one-third of injuries in general industry 

were considered preventable with PPE. 

However, within this group, it was 

apparent that PPE could be particularly 

effective in protecting certain body parts 

(e.g., eye injuries were estimated to be 

95 percent PPE–preventable; foot and 

toe, 75 percent; face and ear, 68 percent; 

and hand and finger, 63 percent). These 

estimates were based on a careful 

review of the descriptions of the 

accidents. Over 90 percent of these 

injuries were incurred by production 

employees in the subset of high-hazard 

industries selected for study in the PPE 

survey. This analysis did not cover the 

construction sector. OSHA assumes that 

the same preventability factors by body 

part would apply in construction as in 

the general industry and maritime 

sectors (see column B). The full analysis 

of the injuries judged to be preventable 

through the proper use of PPE is 

presented in detail in the Regulatory 

Impact Assessment of the 1994 

rulemaking (Docket S060, Ex. 56). 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64401 

BILLING CODE 4510–26–C 

Column C shows the number of 

preventable injuries based on the 1994 

preventability factors and the 2005 data 

on total injuries. OSHA then reduced 

the numbers shown in column C by the 

percentage of employees in State Plan 

States where employer-payment 

requirements are already in place. 

(These reduction factors are shown in 

column D.) The resulting totals of 

preventable injuries, which includes 

both employee or employer paid PPE, 

are shown in Column E. 

Next OSHA estimated the percentage 

of PPE-related injuries where employees 

paid for their own PPE. OSHA estimates 

that if employees are required to pay for 

their own PPE, this equipment will be 

lacking or inadequate 40 percent of the 

time, while if employers pay for PPE, 


jlentini on PROD1PC65 with RULES3ER15NO07.023</GPH>
64402 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

26Within the 17,025 injuries estimated to be 

prevented in general industry and maritime, the 

Agency estimates 214 will be in maritime, the 

remainder in general industry. 

the equipment will be lacking or 

inadequate 17.5 percent of the time. 

Using these parameters, OSHA 

estimates that employees who pay for 

their own PPE are 2.3 times (0.4 divided 

by 0.175) as likely as employees whose 

PPE is paid for by their employers to 

suffer an injury that would otherwise be 

preventable by PPE use. 

The number of such preventable 

injuries, however, depends on the 

percentage of employees that currently 

pay for their own PPE. The larger this 

percentage is, the greater of number of 

injuries are potentially preventable. 

Percentages of preventable injuries 

among employees paying for their own 

PPE were estimated by multiplying the 

number of employees paying for their 

own PPE by 0.4 and dividing this 

amount by the sum of the product of the 

number of employees paying for their 

own PPE and 0.4 and the product of the 

number of employees with employerpaid PPE and 0.175. The numerator of 

this ratio is the number of employees 

required to pay for their own PPE whose 

equipment will be lacking or 

inadequate, while the denominator is 

the total number of employees (both 

employee- and employer-paid PPE 

users) whose equipment will be lacking 

or inadequate. These percentages are 

shown in column F. Assuming injuries 

occur in proportion among employers, 

applying the resulting percentages to 

column E yields the total number of PPE 

related injuries where the employee is 

paying for PPE (shown in column G). 

Once the number of preventable 

injuries among the employee-paying 

group is derived, it has to be recognized 

that not all of these will be preventable 

by switching payment systems. 

Requiring employer payment will 

reduce the injury rate to the level 

currently suffered by employees with 

employer-paid equipment. As outlined 

above, employees paying for their own 

equipment are 2.3 times (0.4/0.175) as 

likely to be injured as those with 

employer-paid equipment. The total 

number of injuries prevented by 

switching to employer payment equals: 

# of PPE-related injuries among the 

employee-paying group multiplied by 

1− percent of time PPE is not worn when employers pay

percent of time PPE is not worn when employees pay

In terms of the specific numbers, this 

percentage reduction is calculated as 

1-((0.175/0.4) , or 1-0.4375, or 56.3 

percent, as shown in column H. 

Reducing the number of injuries in the 

employee-paying group (column G) by 

56.3 percent results in the total number 

of injuries prevented by this 

rulemaking, as shown in column I. 

As indicated in Table XV–3, this 

analysis indicates that the final rule 

would avert approximately 21,798 

injuries annually.26 OSHA provides a 

sensitivity analysis of this below, to 

reflect uncertainties in the strength of 

the employer payment effect. 

While a number of commenters had 

concerns about the rule, there was 

general agreement on the value of PPE 

in preventing injuries (see, e.g., Exs. 12: 

2, 4, 6, 9, 10, 11, 13, 15, 20, 21, 32, 58, 

66, 79, 100, 101, 105, 110, 113, 117, 130, 

134, 149, 184, 190, 210, 218, 230, 233, 

247, 248). One commenter questioned 

the underlying basis for OSHA’s 

estimates in part because their 

experience has been that relatively few 

injuries are actually preventable by PPE. 

[w]e have approximately 50 accidents per 

year. I read every one of them. I would say 

in a given year there may be at most one or 

two accidents where the personal protective 

equipment was a factor in preventing or 

minimizing the injury. Remember, that is the 

barrier. That is the last resort is the personal 

protective equipment. As we all know, there 

should be other steps taken to prevent an 

injury before it gets to that point (Tr. 146). 

OSHA disagrees with this commenter 

to the extent the commenter is 

suggesting that employer payment for 

PPE will not help prevent injuries. First, 

this represents one company’s 

experience, which is not generalizable 

to the economy as a whole. OSHA’s 

analysis of injuries allows for the fact 

that many injuries would not be 

preventable by PPE; this company may 

have an unusually large number of such 

cases. The commenter suggests, 

correctly, that engineering controls are 

the logical first line of defense against 

hazards. The company may have an 

excellent program in this regard. 

Second, the comment refers to cases 

where PPE is being worn and prevented 

accidents; it says nothing about any 

cases where PPE was not being worn 

and injuries resulted. A finding that 

suggests that PPE prevents only a few 

injuries is dramatically at odds with 

most of the rulemaking record both in 

this rulemaking and its predecessor in 

1994. In both cases PPE was found to be 

of considerable value in reducing 

injuries. 

Finally, it is worth noting the Agency 

is not claiming a dramatic percentage 

reduction in total injuries as a result of 

the rule, in part because most 

equipment is already paid for by most 

employers. A reduction of 1 or 2 cases 

out of 50 represents a relatively small 

number within one business unit, but 

extrapolated across the economy as a 

whole represents a large number of 

injuries prevented, resulting in a 

substantial net benefit for the nation as 

a whole. 

2. Benefits From Prevented Fatalities 

Although the primary benefits from 

this rule derive from the non-fatal 

injuries and associated costs that will be 

averted by requiring employers to 

assume the full costs of the covered 

types of PPE, some benefits are 

associated with the preventability of 

fatal injuries. Although most injuries 

preventable by appropriate PPE would 

not otherwise result in fatalities, certain 

fatal head injuries, particularly those 

classified as ‘‘struck by’’ or ‘‘struck 

against’’ injuries, would be prevented by 

PPE (i.e., hardhats). Recent data on 

occupational fatalities collected by the 

Bureau of Labor Statistics show that a 

yearly average of 112 such fatalities 

occurred in general industry and 

maritime, and 43 in construction during 

the period 2003 through 2005 (BLS, 

CFOI, 2004). 

OSHA estimated the number of 

fatalities likely to be prevented by the 

rule by first considering the percentage 

of ‘‘struck by’’ and ‘‘struck against’’

fatalities that would be prevented if 

proper head PPE had been used. Many 

types (or ‘‘events’’) of fatal head injuries 

that would not be prevented by 

hardhats, such as those resulting from 

falls, some explosions, and most 

transportation-related accidents, have 

not been included in this analysis. In 

contrast, PPE should be relatively 

effective in preventing fatal ‘‘struck by’’

and ‘‘struck against’’ head injuries. 

Additional fatalities that would not be 

prevented include crushing accidents 

(force exceeds the protection of the head 

gear) and instances where the hazard 

could not be anticipated and the victim 


jlentini on PROD1PC65 with RULES3ER15NO07.015</MATH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64403 

27–28As indicated in Table XV–3, Census Bureau 

[Census, 2005a] data indicate non State-Plan States 

account for 59.1% of private sector employment. 

could not reasonably be judged to be at 

risk and required to use PPE (passersby, 

for example.) For this analysis, OSHA 

estimates that 75 percent of fatal ‘‘struck 

by’’ and ‘‘struck against’’ injuries would 

otherwise be prevented by proper use of 

head protection. 

Applying the 75 percent estimate 

described above to the total number of 

annual fatalities from the BLS data (112 

in general industry and maritime, and 

43 in construction) results in an 

estimated 84 fatalities in general 

industry and maritime and 32 fatalities 

in construction that would be 

preventable by wearing hardhats if all 

the fatalities occurred in industries 

within OSHA jurisdiction. However, 

approximately 59.1 percent of these 

preventable fatalities are estimated to 

occur in non State-Plan States.27 28

Accordingly, the actual number of 

fatalities preventable by this rule is 

approximately 50 in general industry 

and maritime, and 19 in construction. In 

addition, only a subset of these 

preventable fatalities would be affected 

by switching payment systems, i.e. the 

subset where employees are currently 

paying for their own PPE. This is 

because the number of preventable 

fatalities affected by this rule depends 

on the percentage of employees that 

currently pay for their own PPE. The 

larger this percentage is, the greater the 

number of fatalities that are potentially 

preventable. 

Data from OSHA’s PPE payment 

survey suggest that about 1.2 percent of 

general industry and maritime 

employees and 4.1 percent of 

construction employees pay for their 

own head PPE. Combining these 

percentages with the point estimates for 

PPE nonuse/misuse discussed above (40 

percent nonuse/misuse when employees 

pay for PPE versus 17.5 percent nonuse/ 

misuse when employers pay for PPE), 

OSHA calculated the ratio of employee 

paid-PPE-related fatalities to all PPE 

related fatalities (i.e., the sum of the 

employee- and employer-paid PPE 

fatalities). 

0 4

0 4 0 175

.

. .

×

( ) × + × ( )

E

E E

p

p n

 = where Ep = # employees paying PPE and En = # employees with employer-paid PPE. 

Using the same methodology used for 

non-fatal injuries, the ratio for general 

industry is equal to (0.40*0.012)/ 

(0.40*0.012 + 0.175*0.988) = 2.8 

percent. For construction the ratio is 

equal to (0.40*0.041)/(0.40*0.041 + 

0.175*0.959) = 8.9 percent. 

In short, OSHA estimates that 

employees paying for their own PPE 

suffer 2.8 percent (1.4 fatalities 

annually) of the fatal ‘‘struck by’’ and 

‘‘stuck against’’ head injuries in general 

industry and 8.9 percent (1.7 fatalities 

annually) of the fatal ‘‘struck by’’ and 

‘‘stuck against’’ head injuries in 

construction. However, it is not the case 

that all of the employee-paying 

preventable fatalities (1.4 and 1.7 in 

general industry and construction 

respectively) will be prevented by 

switching payment systems because 

there is still a 17.5 percent nonuse/ 

misuse rate among the employer-paying 

group. OSHA’s estimate that requiring 

employer payment will reduce the rate 

of misuse or nonuse of PPE from 40 to 

17.5 percent implies a resultant 56.3 

percent reduction ((0.4–0.175)/0.40) in 

fatal head injuries among employees 

who pay for their own PPE. Thus OSHA 

estimates that 0.8 fatal head injuries 

(0.563 times 1.4) in general industry and 

0.9 fatal head injuries (0.563 times 1.7) 

in construction will be prevented 

annually by this rule. 

The Agency also believes that the 

final rule will achieve substantial 

benefits in the area of fall protection, 

particularly in construction. The rule 

will prevent a number of fatalities and 

severe injuries that are now occurring 

either because employee-provided PPE 

offers inadequate protection or because 

the employee arrives on site without the 

necessary PPE. For example, OSHA 

estimated in the Regulatory Impact 

Analysis for 29 CFR Part 1926 Subpart 

M that fall protection systems would 

prevent nearly 80 fatalities and 26,600 

lost workday-injuries annually. To the 

extent that employers supply more 

effective harnesses and lanyards than 

those currently being provided by 

employees, or ensure that this 

equipment is available for use by the 

employee, this rule will prevent deaths 

and injuries caused by falls. However, at 

the current time, the Agency does not 

have sufficient detail on these accidents 

to quantify the benefits of this effect. 

3. Uncertainties 

As outlined elsewhere in this 

analysis, benefits associated with the 

rule are subject to uncertainty with 

respect to the number and types of 

accidents that will be avoided or 

mitigated by the use of PPE and cost and 

benefits estimates are further subject to 

uncertainty due to the survey’s nonresponse levels. Further, this analysis 

assumes that the effect of the rule will 

be limited to situations where 

employees are now required to pay for 

their own PPE. This, however, while a 

simplifying assumption, may not be 

wholly accurate. As indicated in the 

Legal Authority section, there is 

evidence that employer payment for 

PPE is important to send a signal to 

employees on the importance of wearing 

PPE. The record is also clear that certain 

sectors, such as construction, have 

relatively high rates of employee 

turnover (BLS, 2004), and even where 

they are not so high, they do not remain 

static. If the rule has the effect of 

engendering a greater appreciation of 

the importance of wearing PPE, then 

this effect would logically extend into 

workplaces where employers pay for the 

equipment currently, through employee 

turnover as well as a general shift in 

norms of behavior in the industry. The 

analysis currently assumes that 

employees will fail to wear PPE 15–20 

percent of the time even when the 

employer pays for PPE. Given that 

employers pay for most PPE items most 

of the time currently (typically greater 

than 95 percent of the time), if this 

percentage were to fall even a small 

amount as a result of this rulemaking, 

the benefits would be substantially 

greater than assumed in this analysis. 

4. Willingness To Pay for Injuries and 

Fatalities Avoided 

OSHA also performed an analysis of 

the value of injuries and fatalities 

avoided based on a willingness to pay 

approach. This approach employs the 

theory of compensating differentials in 

the labor market. A number of academic 

studies have drawn a correlation 

between higher risk on the job and 

higher wages, suggesting that employees 

demand monetary compensation in 

return for a greater risk of injury or 

fatality. OSHA has used this approach 


jlentini on PROD1PC65 with RULES3ER15NO07.016</MATH>
64404 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

in many recent proposed and final rules 

(See, e.g., 71 FR 10099, 70 FR 34822). 

In performing its willingness to pay 

analysis, OSHA uses an estimate of 

$50,000 per lost workday-injury 

avoided, based on two studies: Viscusi, 

1993, and Viscusi & Aldy, 2003. In his 

1993 paper (Viscusi, 1993, p. 1935), 

Viscusi reviewed the available literature 

and found the value of lost workday 

injuries to be: ‘‘[i]n the area of $50,000, 

or at the high end of the range of 

estimates for the implicit value of 

injuries overall.’’ His 2003 paper with 

Aldy broadly reaffirmed this, finding 

the literature to estimate the value in the 

$20,000-$70,000 range. While the 

literature covered many types of 

injuries, they focused primarily, 

particularly for many of the higher 

valuations, on lost workday injuries. 

The Agency has conservatively chosen 

to apply this value to only cases 

resulting in days away from work, even 

though there would be additional value 

attached to the larger class of injuries, 

especially cases resulting in restricted 

work. As shown in Table XV–4, the 

Agency estimates the value of injuries 

prevented using this approach to be 

$337 million per year. 

By this methodology, a single fatality 

avoided is valued at $7 million [Viscusi 

2003, p. 63]. As explained above, OSHA 

estimates that 1.7 fatalities may be 

prevented each year by this rule. 

Accordingly, this brings total the total 

monetized value of benefits to $349 

million. 

An alternate approach for valuing 

injuries is the direct cost approach, 

which OSHA used in the analysis for 

the proposal. A full discussion of this 

estimate is provided in an Appendix at 

the end of the Final Economic Analysis. 

Using a direct cost approach to 

monetize benefits for injuries avoided, 

and a willingness to pay approach to 

monetize fatalities avoided, OSHA 

estimates total benefits to be $228.3 

million (See Table XV–14). 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64405 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.024</GPH>
64406 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

29This analysis assumes the following items are 

transferable: chemical splash goggles, faceshields, 

hardhats, metatarsal protection, splash aprons, 

chemical protective clothing, body harnesses, body 

belts, lanyards, welding helmets, welding goggles 

and ear muffs. Non-prescription safety glasses, 

safety goggles, chemical protective footwear, gloves 

for abrasive and chemical protection, protective 

welding clothing and ear inserts were assumed to 

be non-transferable. 

H. Costs of Compliance to Employers 

OSHA also used the survey results to 

estimate the costs to employers of 

compliance with the final rule. Based on 

the survey, OSHA estimated, by PPE 

type, the percentage of PPE users in 

non-State Plan States whose employers 

bear the full PPE costs and the 

percentage of PPE users in non-State 

Plan States whose employers pay some 

share of the PPE costs. The remaining 

employees are those who now pay for 

their own PPE. Under the final rule, 

employers will have to assume the PPE 

costs for these employees and, in 

addition, make up the share of PPE costs 

currently borne by employees who pay 

some portion of the equipment expense. 

OSHA also determined unit cost 

estimates for PPE, based in part on 

assumptions used in the Preliminary 

Economic Analysis for the proposed 

rule (64 FR 15425), updated according 

to current price data obtained from 

safety equipment vendors. The unit 

costs represent annualized equipment 

costs, based on the prices and the 

estimated lifetimes of the PPE items, 

and are as follows: 

• Based on prices from a current 

safety equipment catalog, hardhats 

costing $8.20, non-prescription safety 

glasses costing $6.20, and face shields 

costing $14.90 are all assumed to a have 

a useful life of one year. 

• Chemical splash goggles costing 

$6.20 and safety goggles costing $4.65 

are assumed to be replaced every six 

months with annualized costs of $13.05 

and $9.79, respectively. 

• Gloves for abrasion protection 

costing $8.30 are assumed to be 

replaced four times a year resulting in 

an annualized cost of $34.64 (Lab 

Safety, 2007). 

• Welding helmets were assumed to 

have a life expectancy of 2 years and to 

cost $40.00; welding goggles were 

assumed to have a life expectancy of 1 

year and to cost $13.62 (these 

assumptions yield a combined 

annualized welding unit cost of $36.69). 

According to OSHA’s expert panel, 

welders need both helmets and goggles 

at different times of the year. 

• Fall protection (body harness or 

belt, and lanyard) is assumed to have a 

life expectancy of 2 years, and to cost 

$93.90 (harnesses), $45.70 (belt), and 

$51.10 (lanyards), respectively, yielding 

a combined annualized fall protection 

unit cost of $80.20. 

• Reusable chemical protective 

clothing is assumed to be replaced every 

6 months and to cost $41.30, while 

chemical protective gloves costing $3.50 

are assumed to be replaced every 10 

working days (20 times a year), based on 

prices in the safety equipment catalog 

(Lab Safety, 2007). 

• Paragraph (h)(3) of the revised rule 

requires employers to pay only for the 

cost of metatarsal guards, as opposed to 

the entire footwear item. The 

annualized cost of external metatarsal 

guards, assuming replacement every 2 

years, is $15.49, based on a unit cost of 

$28 (Lab Safety Supply, 2007, Omark 

Safety Online, 2007, Working Person’s 

Store, 2007, Grainger, 2007, Alpenco, 

2007). 

To derive the incremental cost to 

employers of compliance with the final 

rule, for each type of PPE, OSHA (a) 

multiplied the unit PPE cost by the 

number of employees in non-State Plan 

States who now pay for their equipment 

and (b) added to this, the unit PPE cost 

multiplied by 1 minus the percentage 

share of cost now paid by employers 

who share costs, multiplied by the 

number of employees in non-State Plan 

States who now pay some portion of the 

cost of their PPE. 

Costs were adjusted for additional 

PPE expenditures resulting from 

employee turnover, based on turnover 

estimates prepared by the Bureau of 

Labor Statistics from their Job Openings 

and Labor Turnover Survey (JOLTS) 

(BLS, 2004). Two factors determine the 

impact of turnover on compliance costs. 

First, if the protective equipment is 

transferable to other employees and can 

be reused, turnover does not affect 

compliance costs. In this case, departing 

employees’ equipment can be passed on 

to new employees. Second, for nontransferable PPE, the lifetime of the 

equipment determines the number of 

additional purchases required for new 

employees.29 For example, turnover has 

less impact for PPE types with short 

lifetimes, because such equipment is 

regularly replaced even in the absence 

of employee turnover. To account for 

this, OSHA used a factor that was equal 

to the PPE lifetime (in fractions of a 

year) for PPE types with lifetimes less 

than one year and equal to 1 for PPE 

with lifetimes of one year or greater. For 

example, suppose that the turnover rate 

is 10 percent and the lifetime of the 

equipment is six months (0.5 years). If 

the hiring of new employees is spread 

out evenly over the year, half the new 

employees can be provided with 

equipment that would have been 

replaced even without employee 

turnover. In this case, the additional 

PPE required as a result of turnover 

would be 5 percent (10 percent times 

0.5). 

Table XV–5 presents compliance costs 

of the final rule to employers, by NAICS 

code. Table XV–6 summarizes the cost 

estimates by general category of PPE. 

Total compliance costs are estimated to 

be $85.7 million for all establishments. 

The cost of gloves for abrasion 

protection is estimated to be $27.8 

million, or 32.5 percent of total costs. 

Chemical protective footwear is 

estimated to be $17.6 million, or 20.5 

percent of total costs. Metatarsal guards 

for footwear are estimated to be $13.3 

million, and gloves for chemical 

protection $10.2 million, at 15.5 percent 

and 11.8 percent of total costs 

respectively. 

Several commenters stated that the 

cost analysis was unrealistic in 

assessing the costs in their industries. 

Representatives from the drilling 

industry (Ex. 12: 91) stated that the 

analysis failed to take into consideration 

the high rate of cotton glove usage in 

their industry, as they reported 

employees going through approximately 

one pair a day. OSHA questions 

whether the gloves described by the 

commenter constitute PPE; it is not clear 

for what safety or health purpose the 

gloves are being worn. If the gloves are 

being used for the purposes of abrasion 

protection, more durable and protective 

alternatives are available than cotton 

gloves. Regulatory analyses generally 

assume employers adopt the least-cost 

option, which may differ from the 

pattern of employee purchases; this 

applies to both the quantity (e.g., bulk 

discounts) and quality of PPE 

purchased. This analysis assumes 

employers will use leather or Kevlar 

gloves for protection, a costlier (per 

unit), but more durable form of 

protection. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64407 


jlentini on PROD1PC65 with RULES3ER15NO07.025</GPH>
64408 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


jlentini on PROD1PC65 with RULES3ER15NO07.026</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64409 

BILLING CODE 4510–16–C 

In a separate but related issue, this 

same commenter indicated that, from 

talking with their members, they 

thought OSHA’s survey had 

underestimated the share of PPE which 

employees were paying for. OSHA 

recognizes that such results are 

inevitable in relying upon a sample. 

There will be instances where certain 

costs are underestimated. Likewise, 

there will be situations where costs are 

overestimated. These will tend to offset 

each other so that there is no systemic 

bias. For example, based heavily on one 

survey response, the analysis suggests 

that employers in wholesale trade are 

expected to have particularly heavy 

costs for certain PPE items, notably fall 

protection. However, in OSHA’s 

professional judgment, uses of these 

PPE items in this sector are not as high 

as the survey would suggest. 

Nonetheless, it would be inconsistent 

and potentially in error to project a final 

estimate of costs to the economy 

without taking into account the full 

pattern of behavior indicated by the 

survey. 

There may be instances where this 

analysis either fails to consider certain 

specialized PPE or PPE use patterns in 

particular industries that are more 

expensive than calculated. Alternately, 


jlentini on PROD1PC65 with RULES3ER15NO07.027</GPH>
64410 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

there will be instances where the 

analysis has overestimated the cost of 

PPE for various industries. However, as 

indicated later in this analysis, given the 

very limited costs of PPE as a percentage 

of revenue and profits, its comparatively 

‘‘level’’ distribution as a per employee 

cost (i.e., costs as function of the size of 

employment), as well as the established 

patterns of employee payment currently 

for most types of PPE in most industries, 

cost estimates for particular industries 

would generally need to be off by well 

over an order of magnitude before these 

would begin to raise issues of economic 

feasibility. 

It should also be noted that since this 

analysis is accepting the survey results 

at face value, there has been no attempt 

to correct for situations where OSHA 

already requires payment for PPE, e.g., 

the bloodborne pathogens standard and 

numerous single substance standards. 

To the extent that employers are not 

adhering to existing requirements in this 

regard, these costs are overstated in this 

rulemaking. 

Finally, this analysis makes no 

attempt to estimate to what extent 

employees will continue to voluntarily 

bring their own PPE into the workplace. 

Rather, this analysis assumes employers 

will pay 100 percent of the cost of the 

PPE covered by this rulemaking 

currently paid for by employees. To the 

extent employees choose to bring their 

own PPE into the workplace after the 

rule is issued, costs will be overstated. 

I. Economic Feasibility and RFA 

Certification 

A standard is economically feasible if 

it does not threaten massive dislocation 

to or imperil the existence of an 

industry. See United Steelworkers of 

America, 647 F.2d at 1265. That a 

standard is financially burdensome or 

threatens the survival of some 

companies in an industry is not 

sufficient to render it infeasible (Id. at 

1265). The cost of compliance with an 

OSHA standard must be analyzed ‘‘in 

relation to the financial health and 

profitability of the industry and the 

likely effect of such costs on unit 

consumer prices.’’ (Id.) [The] practical 

question is whether the standard 

threatens the competitive stability of an 

industry, or whether any intra-industry 

or inter-industry discrimination in the 

standard might wreck such stability or 

lead to undue concentration (Id.) (citing 

Industrial Union Dept., AFL–CIO v. 

Hodgson, 499 F.2d 467 (DC Cir. 1974)). 

The courts have further observed that 

granting companies reasonable time to 

comply may enhance economic 

feasibility (Id.). 

To assess the potential economic 

impacts of the final rule, OSHA 

compared the anticipated costs of 

achieving compliance against revenues 

and profits of PPE-using establishments 

in non-State Plan states. Perestablishment average costs were 

calculated by dividing total compliance 

costs for each industry by the number of 

affected establishments. OSHA then 

compared baseline financial data (from 

the U.S. Internal Revenue Service, 

Corporation Source Book, 2004) with 

total annualized costs of compliance to 

compute compliance costs as a 

percentage of revenues and profits. This 

impact assessment is presented in Table 

XV–7. 

This table is considered a screening 

analysis because it measures costs as a 

percentage of pre-tax profits and sales 

but does not predict impacts on pre-tax 

profits and sales. This screening 

analysis is used to determine whether 

the compliance costs potentially 

associated with the standard would lead 

to significant impacts on establishments 

in the affected industries. The actual 

impact of the standard on the profits 

and revenues of establishments in a 

given industry will depend on the price 

elasticity of demand for the services 

sold by establishments in that industry. 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64411 


jlentini on PROD1PC65 with RULES3ER15NO07.028</GPH>
64412 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.029</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64413 

Price elasticity refers to the 

relationship between the price charged 

for a service and the demand for that 

service; that is, the more elastic the 

relationship, the less able an 

establishment is to pass the costs of 

compliance through to its customers in 

the form of a price increase and the 

more it will have to absorb the costs of 

compliance from its profits. When 

demand is inelastic, establishments can 

recover all the costs of compliance 

simply by raising the prices they charge 

for that service; under this scenario, 

profits are untouched. On the other 

hand, when demand is elastic, 

establishments cannot recover all the 

costs simply by passing the cost 

increase through in the form of a price 

increase; instead, they must absorb 

some of the increase from their profits. 

In general, ‘‘when an industry is subject 

to a higher cost, it does not simply 

swallow it, it raises its price and 

reduces its output, and in this way 

shifts a part of the cost to its consumers 

and a part to its suppliers,’’ (ADA v. 

Secretary of Labor, 984 F.2d 823, 829 

(7th Cir. 1993)). 

Specifically, if demand is completely 

inelastic (i.e., price elasticity is 0), then 

the impact of compliance costs that 

amount to 1 percent of revenues would 

be a 1 percent increase in the price of 

the product or service, with no decline 

in demand or in profits. Such a situation 

would be most likely when there are 

few, if any, substitutes for the product 

or service offered by the affected sector 

or if the products or services of the 

affected sector account only for a small 

portion of the income of its consumers. 

If the demand is perfectly elastic (i.e., 

the price elasticity is infinitely large), 

then no increase in price is possible, 

and before-tax profits would be reduced 

by an amount equal to the costs of 

compliance (minus any savings 

resulting from improved employee 

health and reduced insurance costs). 

Under this scenario, if the costs of 

compliance represent a large percentage 

of the sector’s profits, some 

establishments might be forced to close. 

This scenario is highly unlikely to 

occur, however, because it can only 

arise when there are other goods and 

services that are, in the eye of the 

consumer, perfect substitutes for the 

goods and services the affected 

establishments produce or provide. 

A common intermediate case would 

be a price elasticity of one. In this 

situation, if the costs of compliance 

amount to 1 percent of revenues, then 

production would decline by 1 percent 

and prices would rise by 1 percent. The 

sector would remain in business and 

maintain approximately the same profit 

rate as before but would produce 1 

percent less of its services. Consumers 

would effectively absorb the costs 

through a combination of increased 

prices and reduced consumption; this, 

as the court described in ADA v. 

Secretary of Labor, is the more typical 

case. 

As indicated in Table XV–7, the 

screening analysis indicates the highest 

revenue and profit impacts are for 

NAICS 48832, Marine Cargo Handling 

(0.017 percent of sales and 0.56 percent 

of profits); NAICS 336611, Ship 

Building and Repairing (0.013 percent 

of sales and 0.24 percent of profits); 

NAICS 238, Specialty Trade Contractors 

(0.008 percent of sales and .21 percent 

of profits); and NAICS 485, Transit and 

Ground Passenger Transportation (0.006 

percent of sales and 0.3 percent of 

profits). Over the entire set of affected 

industries, the average impact on sales 

is 0.001 percent and the average impact 

on profits is 0.03 percent. 

Costs of this magnitude do not 

threaten the financial health of even the 

most marginal firm. Since most 

employers in most industries already 

pay for PPE, the major competitive 

effect of the rule is to limit any small 

short-term competitive advantage a few 

firms gain by not paying for PPE, i.e., by 

requiring their employees to pay for PPE 

that other employers in their industry 

pay for. As shown elsewhere, many 

firms already pay for PPE because it 

proves cost-effective. Many firms will 

find that, when benefits as well as costs 

are considered, the costs of PPE are 

more than offset by these benefits. 

It should be noted that these impacts 

could be nine times higher without 

reaching the level of 5 percent of profits 

or 1 percent of revenues in any industry. 

Thus, in spite of uncertainties about 

costs, this rule does not come close to 

a level threatening the economic 

viability of any affected industry. For all 

the aforementioned reasons, the Agency 

concludes the final rule is economically 

feasible. 

OSHA also assessed the economic 

impact of the rule on small firms within 

each affected industry. Impacts on two 

size categories of small firms were 

estimated: Firms with fewer than 500 

employees, and firms with fewer than 

20 employees. In using 500 employees 

and 20 employees to characterize firms 

for this screening analysis for impacts, 

OSHA is not proposing definitions of 

small business that are different from 

those established by the Small Business 

Administration (SBA) in its ‘‘Table of 

Size Standards’’. The SBA size 

definitions are NAICS-code specific, 

and are generally expressed either in 

terms of number of employees or as 

annual receipts. Instead, OSHA is using 

500 employees and 20 employees as a 

simple method of screening for 

significant impacts across the large 

number of industries potentially 

affected by the rule. Because the survey 

used the 500- and 20-employee levels, it 

is appropriate to retain these levels in 

the final rule. This approach also avoids 

the interpolation that would be 

necessary because the underlying 

industry profile data do not correspond 

with the NAICS-specific size categories 

established by the SBA. (OSHA notes 

that, for almost all of the industries 

affected by this rulemaking, the SBA 

size definitions fall within the 20- to 

500-employee range.) OSHA believes 

that this screening approach will 

capture any significant impacts on small 

firms in affected industries. 

As a conservative approach, in order 

to analyze the impact on firms with 

fewer than 500 employees, OSHA 

divided the total annual cost in each 

NAICS for establishments with fewer 

than 500 employees by the total number 

of firms with fewer than 500 employees 

in that NAICS. This approach tends to 

overstate the impact because some of 

the costs will be for establishments with 

fewer than 500 employees that are part 

of firms with more than 500 employees. 

These calculated costs per firm with 

fewer than 500 employees were then 

compared to average sales per firm with 

fewer than 500 employees and average 

pre-tax profits per firm with fewer than 

500 employees. The same methodology 

was used to analyze the impact on firms 

with fewer than 20 employees. 

The results of these analyses are 

shown in Tables XV–8 and XV–9, which 

demonstrate that the annualized costs of 

compliance do not exceed 0.035 percent 

of sales or 0.65 percent of profits for 

small firms in any industry, whether 

defined as fewer than 500 employees or 

as fewer than 20 employees. It should be 

noted that these impacts could be 8 

times higher without reaching the level 

of 5 percent of profits or 1 percent of 

revenues that OSHA uses to determine 

if a Regulatory Flexibility Act (5 U.S.C. 

605) Analysis (RFA) is necessary. Thus, 

in spite of uncertainties about costs, it 

is very unlikely that this rule would 

even rise to the level of needing more 

detailed analysis beyond this screening 

analysis. Based on these analyses, in 

accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605), OSHA 

certifies that the rule will not have a 

significant impact on a substantial 

number of small entities. 


jlentini on PROD1PC65 with RULES3
64414 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

Because for most industries 

statistically meaningful survey data are 

available largely only at the three-digit 

North American Industrial 

Classification System level, OSHA has 

conducted this analysis of economic 

impacts primarily at the 3-digit level. 

OSHA believes that this level of analysis 

adequately captures meaningful 

variations in economic impacts. Further, 

the costs are so low that even if a subindustry has substantially higher costs 

as a percentage of sales or profits, the 

financial health of that sub-industry 

would not be in any danger. 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64415 


jlentini on PROD1PC65 with RULES3ER15NO07.030</GPH>
64416 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


jlentini on PROD1PC65 with RULES3ER15NO07.031</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64417 


jlentini on PROD1PC65 with RULES3ER15NO07.032</GPH>
64418 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.033</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64419 

30Total social benefits include fatalities 

prevented, which are valued at $7 million per 

fatality avoided, using the willingness to pay 

approach [Viscusi, 2003, p. 763]. 

J. Social Costs and Social Benefits 

For the most part, the rule will simply 

shift the cost of purchasing PPE from 

employees to employers. However, the 

record demonstrates that employer 

payment will also result in more PPE 

used and improved PPE use at the 

workplace. This will lead to social costs 

and social benefits. For purposes of 

estimating the social costs, OSHA 

assumed, based largely on expert 

opinion as discussed above in the 

benefits analysis, that employees lack 

the proper PPE an average of 17.5 

percent of the time when employers 

pay, and 40 percent of the time when 

employees pay. The social cost 

represents the cost of closing the gap 

between the two numbers; the 

remainder of the employers’ cost is 

merely an economic transfer from the 

employee to employer. Thus, the social 

costs of requiring employer payment 

would represent the following portion 

of the total cost to employers: 1–((1–

0.4)/(1–0.175)), where (1–0.4)/(1–0.175) 

represents the relative likelihood that 

employees are actually wearing the 

proper PPE. If the relative likelihood 

were 1 (the numerator and denominator 

equal), there would be no social cost. 

Calculated out, this becomes 1–(0.6/ 

0.825), 1–0.727, or 27.3 percent. As 

indicated in Table XV–10 this suggests 

that about $23.4 million out of the total 

$85.7 million estimated costs to 

employers are social costs. 

In the case of comparing social costs 

and social benefits, the magnitude of 

social costs and benefits are closely 

linked—the benefits of reducing the 

injuries are dependent upon the 

purchase and use of PPE. To assess the 

benefits of the final rule, OSHA 

estimated that PPE is misused or not 

used at all 40 percent of the time when 

employees pay and 17.5 percent of the 

time when employers pay. There is 

necessarily uncertainty in these 

estimates. Accordingly, OSHA has 

performed an analysis of the social costs 

and social benefits of the rule given 

different sets of assumptions, commonly 

referred to as a sensitivity analysis, in 

this case with respect to different rates 

of PPE misuse/nonuse. The Agency 

found that if the difference in PPE usage 

patterns between the employee- and 

employer-pay groups is much smaller 

than OSHA’s assumption, the social 

benefits are still several times larger 

than the social costs. 

If one assumed the gap between the 

two groups were only half of what was 

assumed in the benefits estimate based 

on direct cost (i.e., assume employees 

paying for their own PPE were lacking 

the proper PPE 28.75 percent of the 

time, and employees who had the PPE 

paid for by their employer were lacking 

it 17.5 percent of the time, meaning a 

difference of 11.25 percent, as opposed 

to 22.5 percent in main estimate), OSHA 

estimates total social costs of $11.7 

million and total social benefits of 

$125.3 million, for a net benefit of 

$113.6 million. If the ‘‘employer 

payment effect’’ were only 10 percent of 

the main benefits estimate (i.e., assume 

employees paying for their own PPE 

were lacking the proper PPE 19.75 

percent of the time, and employees who 

had the PPE paid for by their employer 

were lacking it 17.5 percent of the time), 

the social costs would be only $2.3 

million; the remainder of the cost to 

employers would simply be a transfer. 

The estimated benefits would be $27.6 

million, for a net benefit of $25.3 

million.30

OSHA performed an analysis of these 

alternate assumptions incorporating the 

estimated value of willingness to pay for 

injuries avoided, estimated at 

approximately $50,000 per lost workday 

injury (Viscusi 1993, Viscusi & Aldy 

2003). As shown in Table XV–11, OSHA 

estimates the net social benefits of the 

rule to be $334 million using the main 

benefits estimate, and $185 and $39 

million using the alternate 50 percent 

and 10 percent assumptions on the 

‘‘employer payment effect’’. 

The Agency also examined the effect 

of doubling the estimated share of PPE 

employees currently pay for to examine 

the consequences of the survey 

underestimating the employees’ share of 

payment. Both the costs of the standard 

to employers and the social costs would 

double—the estimated social costs 

would increase to $47 million. The 

estimated annual benefits of the 

standard would increase to 37,188 

injuries and 3.4 fatalities prevented, 

producing an estimated social value of 

$609 million, and raising the net social 

benefit to $562 million. Therefore, the 

Agency concludes that if the survey did 

underestimate the current employeepaying share, the net benefits of the 

standard would be larger than OSHA’s 

primary estimate. 

As discussed previously, these 

sensitivity analyses of the net social 

benefits are intended to explore the 

implications of the uncertainties 

outlined previously in this analysis. 

Nonetheless, under any scenario, the 

rule will produce a high ratio of benefits 

to costs and positive net benefits; the 

primary uncertainty is the magnitude of 

the social costs and benefits. 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3
64420 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


jlentini on PROD1PC65 with RULES3ER15NO07.034</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64421 

BILLING CODE 4510–26–C 

K. Direct Savings Resulting From the 

Reduction in Injuries Attributable to the 

Final Rule 

This section evaluates the direct 

savings associated with the injuries 

prevented by the final rule. It should be 

noted that occupational injuries impose 

an enormous burden on society in 

addition to the direct outlays of money 

for medical expenses, lost wages and 

production, and other purely economic 

effects. This section of the analysis does 

not attempt to place a monetary value 

on the pain and suffering experienced 

by employees and their families, loss of 

esteem, disruption of family life, 

feelings of anger and helplessness and 

other effects. However, many of these 

considerations go into the monetary 

calculation of the social benefits of 

injury reduction used in the social costs 

and benefits above (see Section J). In 


jlentini on PROD1PC65 with RULES3ER15NO07.035</GPH>
64422 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

31The use of a simple average rather than a 

population-weighted average results in a lower 

estimate of income loss and is thus a more 

conservative approach. 

32A CBO (CBO, 2004) study estimated the current 

effective Federal tax rate, averaged over all income 

levels, at 21.6% (Table 2, p. 18). To this Social 

Security taxes and state and local income taxes 

must be added, so that the number 30% should be 

a conservative estimate in most cases. 

addition, there are some purely 

economic costs that have not been 

captured in this analysis, such as legal 

costs to employees and lost output at 

home. 

Some aspects of the burden of 

occupational injuries can be quantified 

in monetary terms. These aspects of the 

problem of work-related injuries and 

illnesses can be measured by the losses 

experienced by employees and by the 

other costs that are externalized to the 

rest of society. One consequence of the 

failure of PPE programs to prevent jobrelated injuries is the growth of 

enormously expensive income 

maintenance programs such as workers’

compensation and long-term disability 

programs. These costs impose a burden 

on society separate from and in addition 

to the human toll in pain and suffering 

caused by workplace-related injuries. 

One measure of some of the losses 

associated with lost time due to workrelated injuries is the lost output of the 

employee, measured by the value the 

market places on his or her time. This 

value is measured as the employee’s 

total wage plus fringe benefits. Other 

costs include: (1) Medical expenses, (2) 

costs of workers’ compensation 

insurance administration, and (3) 

indirect costs to employers (other than 

those for workers’ compensation 

administration). 

a. Lost Output 

OSHA estimates the value of lost 

output by starting with workers’

compensation indemnity payments and 

then adding other losses associated with 

work-related injuries. The Agency 

follows four steps to arrive at a value for 

lost output: 

(1) Calculate PPE-related injury in 

terms of workers’ compensation 

indemnity payments; 

(2) Add the difference between the 

value of these indemnity payments and 

the employee’s after-tax income, based 

on various studies comparing workers’

compensation payments with after-tax 

income. This step estimates the 

magnitude of lost after-tax income; 

(3) Add the estimated value of taxes, 

based on the typical value of taxes as a 

percentage of after-tax income. This step 

estimates the value of total income lost; 

and 

(4) Add the value of fringe benefits, 

based on data on fringe benefits as a 

percentage of total income. This step 

estimates the total market value of the 

lost output. 

In this approach, injuries are clearly 

undervalued, because OSHA assumes 

that the value associated with injuries is 

the same as the value of claims for 

workers’ compensation. An analysis of 

1993 workers’ compensation claim data 

from the Argonaut Insurance Company, 

updated to reflect current dollars using 

a ratio of claims value to total injuries, 

shows that the weighted average claim 

value of the injuries shown in Table 

XV–3 is $3,833. Based on nationwide 

estimates from the U.S. Social Security 

Administration, an average of 53 

percent of these payments are paid out 

for indemnity, and the remaining 47 

percent are paid out for medical costs 

(NASI, 2006). 

b. Indemnity/Lost Income 

Workers’ compensation indemnity 

payments typically take two forms: 

temporary total disability payments, 

which cover absences from work prior 

to the stabilization of the condition, and 

permanent disability payments, which 

compensate the employee for the longterm effects of a stabilized condition. On 

a nationwide basis, the National 

Academy of Social Insurance (NASI) 

estimates that permanent disability 

payments account for 79 percent of all 

indemnity payments. Considering all 

payments, those cases classified as 

permanent partial disability account for 

67 percent of the total, while those 

classified as permanent total disability 

account for 12 percent of the total. The 

remaining indemnity payments are for 

temporary total disability cases and 

account for 21 percent of the total 

(NASI, 2006). 

The extent to which income is 

replaced by each type of indemnity 

payment (i.e., temporary or permanent) 

differs. First, although rules vary by 

State, temporary disability income is 

designed in most States to replace twothirds of the employee’s before-tax 

income. However, most States place a 

maximum and minimum on the amount 

of money paid out to the employee, 

regardless of his/her actual former 

income. Studies by the Worker 

Compensation Research Institute 

(WCRI) show that temporary total 

disability payments replace between 80 

to 100 percent of the after-tax income of 

the majority of employees (WCRI, 1993). 

From 3 to 44 percent of the employees 

receive less than 80 percent of their 

after-tax income, and from 0 to 16 

percent receive more than 100 percent 

of their after-tax income. Unfortunately, 

WCRI does not provide estimates of 

average replacement rates as they vary 

significantly by State for a number of 

reasons, including policy differences, 

injury rates, employee demographics, 

and wage and price variations (NASI, 

2006). However, based on these data, it 

seems reasonable to assume that, on 

average, employees receive no more 

than 90 percent of their after-tax income 

while on temporary disability. 

On the other hand, data show that 

permanent partial disability payments 

replaced 75 percent of income lost in 

Wisconsin, 58 percent in Florida, and 

45 percent in California [Berkowitz and 

Burton]. OSHA uses the simple average 

of these three—59 percent—to estimate 

the extent of after-tax income 

replacement for permanent partial 

disabilities.31

Based on these data and the NASI 

estimates of the distribution of 

payments by type, OSHA estimated 

after-tax income from the total 

indemnities paid for injuries 

preventable by the proposed rule by 

assuming payments for temporary 

disabilities account for 21 percent of all 

PPE-preventable indemnity payments 

and replace 90 percent of after-tax 

income and that payments for 

permanent disabilities account for 79 

percent of PPE-preventable indemnity 

payments and replace approximately 60 

percent of after-tax income. 

c. Fringe Benefits 

In addition to after-tax income loss, 

lost output includes the value of taxes 

that would have been paid by the 

injured employee and fringe benefits 

that would have been paid by the 

employee’s employer. Total incomebased taxes (individual Social Security 

payments, Federal income tax, and State 

income tax) paid were assumed to be 30 

percent of total income.32 Fringe 

benefits were estimated as 40.4 percent 

of before-tax income, based on the 

average fringe benefit data provided by 

BLS (BLS, 2005). 

Tables XV–12 and XV–13 apply the 

estimation parameters developed above 

to calculate the total value of the lost 

output associated with temporary and 

permanent disabilities, respectively. As 

shown, the total value of the lost output 

associated with potentially avoidable 

approved workers’ compensation claims 

for temporary total disability is 

estimated at $17.3 million, and that 

associated with permanent disabilities 

(partial and total) at $93.9 million a 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64423 

year. By preventing injuries that lead to disability, the PPE payment rule will 

also prevent this lost output. 

BILLING CODE 4510–26–C 


jlentini on PROD1PC65 with RULES3ER15NO07.036</GPH>
64424 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4510–26–C 

d. Medical 

Most elements of medical costs are 

included in the share of payments paid 

for medical costs, estimated to be 47 

percent of the cost of the claims. 

However, medical costs do not include 

any first-aid costs incurred by the 

employer and, in some cases, costs for 

transportation to a medical facility. It 

should be noted that costs for treating 

injuries will remain relatively constant, 

regardless of who is actually paying for 

the medical care (i.e., the employer 

through workers’ compensation, or a 

medical insurer). As presented in Table 

XV–14, OSHA estimates the medical 

costs of injuries preventable by the 

proposed standard to be $39.2 million a 

year. 

e. Administrative Costs 

The administrative costs of workers’

compensation insurance include any 

funds spent directly on claims 

adjustment, as well as all other 

administrative costs incurred by the 

insurer in conjunction with experienced 

losses. 

OSHA calculates the administrative 

costs of PPE-related injury claims based 

on the estimates of benefits and costs to 

employers for workers’ compensation as 

provided by the National Academy of 

Social Insurance (NASI, 2006). Table 

XV–15 presents administrative costs as 

a percent of the value of claims, by type 

of insurer. Administrative costs for 

private carriers, State funds, and selfinsured companies are estimated to be 

71.8 percent, 73.5 percent, and 16.2 

percent, respectively. To estimate the 

aggregate value of the administrative 

costs of insurance, these costs were 

weighted by the value of the benefit 

payments made by each type of insurer. 

The aggregate value of the 

administrative costs of workers’

compensation insurance is estimated to 

be 58.1 percent of the value of claims. 

The total value of claims includes both 

the indemnity and medical portions of 

insurance company payments. As 

indicated in Table XV–14, the Agency 

estimates that the revisions to the PPE 

standard will save $48.5 million 

annually in administrative costs. 

It should be noted that cases that fall 

outside the workers’ compensation 

system will typically have 

administrative costs associated with 

them—indeed, to the extent they are 

borne by private medical insurers, they 

will carry relatively greater 

administrative expenses than the 

average estimated here. 


jlentini on PROD1PC65 with RULES3ER15NO07.037</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64425 

TABLE XV–15.—DERIVATION OF AVERAGE ADMINISTRATIVE COSTS AS A PERCENT OF THE VALUE OF CLAIMS, BY TYPE OF

INSURANCE

[$ millions] 

Type of insurance Total cost Benefits Administrative 

cost 

Ratio of 

administrative 

costs to benefits 

Private ......................................................................................... $48,695 $28,346 $20,349 71.8 percent. 

State ............................................................................................ $19,157 $11,044 $8,113 73.5 percent. 

Self-Insured ................................................................................. $15,478 $13,321 $2,157 16.2 percent. 

All Insurance ............................................................................... $83,330 $52,711 $30,619 58.1 percent. 

Source: National Academy of Social Insurance, Workers Compensation: Benefits, Coverage, and Costs, 2004 (Washington, DC, 2006).

f. Indirect Costs 

The term ‘‘indirect costs’’ describes 

the costs of work-related injuries that 

are borne directly by employers but are 

not included in workers’ compensation 

claim costs. Such costs are best 

estimated by looking at the costs an 

employer actually incurs at the time a 

workers’ compensation claim is filed. 

These costs include a number of 

different social costs, not included 

elsewhere in these calculations, such as 

loss of productivity measured by sick 

leave to employees for absences that are 

shorter than the workers’ compensation 

waiting period, losses in production 

associated with the injured workers’

departure and return to work, losses in 

the productivity of other employees, 

and a wide variety of administrative 

costs other than those borne directly by 

the workers’ compensation insurer, e.g., 

medical management costs for the 

injured employee. Based on a study 

(Hinze & Applegate) of indirect costs of 

injuries in the construction industry, 

OSHA estimates that indirect costs are 

20.8 percent of the value of workers’

compensation medical and indemnity 

payments. As indicated in Table XV–14, 

the Agency estimates that the PPE 

payment rule will save $17.4 million 

annually in these indirect costs. 

Taken in its entirety, this final rule is 

estimated to save $216 million annually 

by avoiding preventable injuries. See 

Table XV–14. These cost savings do not 

include the economic value of the loss 

of leisure time. They do not account for 


jlentini on PROD1PC65 with RULES3ER15NO07.038</GPH>
64426 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

the burden of chores that are forced on 

other household members or hired out. 

The direct savings also do not include 

the value of preventing pain and 

suffering or loss of life. 

L. References 

Alpenso, 2007. www.alpenco.com. 

Accessed May 8, 2007 (Docket OSHA–S042–

2006–0667). 

American Association of Railroads, 2006. 

North American Freight Railroad Statistics. 

November 6 (Docket OSHA–S042–2006–

0667). 

Berkowitz, M., and Burton, J. Permanent 

Partial Disability Benefits In Worker 

Compensation. W. E. Upjohn Institute for 

Employment Research, Kalamazoo, 

Michigan, 1987 (Docket S777, Ex. 1605). 

Bureau of Labor Statistics. ‘‘Employer 

Costs for Employee Compensation 

Summary,’’ News Release, December 9, 2005. 

Bureau of Labor Statistics, 2004. Job 

Openings and Labor Turnover Survey, 2004. 

Bureau of Labor Statistics. ‘‘Workplace 

Injuries and Illnesses in 2005,’’ News 

Release, October 19, 2006. 

Bureau of Labor Statistics. ‘‘Nonfatal 

Occupational Injuries and Illnesses Requiring 

Days Away From Work, 2005,’’ News 

Release, November 17, 2006. 

Bureau of National Affairs. Basic Patterns 

in Union Contracts, Fourteenth Edition, BNA 

Books, 1995 (Docket OSHA–S042–2006–

0667). 

Curtin, R., Presser, S., and Singer, E., 

‘‘Changes in Telephone Survey Nonresponse 

Over the Past Quarter Century’’, Public 

Opinion Quarterly, Vol. 69, No. 1, Spring 

2005, pp. 87–98 (Docket OSHA–S042–2006–

0667). 

Congressional Budget Office, Effective Tax 

Rates Under Current Law, 2001–2004, 2004. 

Eastern Research Group, Patterns of PPE 

Provision. 1998 (Ex. 1). 

Eastern Research Group, PPE Cost Survey, 

1999 (Ex. 14). 

Eastern Research Group, Revised Estimates 

of PPE Use and Payment Patterns, 2007 

Business Roundtable. Improving 

Construction Safety Performance: A 

Construction Industry Cost Effectiveness 

Project. Report A–3, January, 1982 (Docket 

OSHA–S042–2006–0667). 

Grainger, 2007. www.grainger.com, 

Accessed May 8, 2007 Business Roundtable. 

Improving Construction Safety Performance: 

A Construction Industry Cost Effectiveness 

Project. Report A–3, January, 1982 (Docket 

OSHA–S042–2006–0667). 

Hinze, J. and Applegate, L.L. ‘‘Costs of 

Construction Injuries’’, Journal of 

Construction Engineering and Management, 

117(3):537–550, 1991 (Docket S777, Ex. 26–

1589). 

Klein, R.W., Nordman, E.C., and Fritz, J.L. 

Market Conditions in Workers’ Compensation 

Insurance. Interim Report Presented to the 

NAIC Workers’ Compensation Task Force, 

July 9, 1993 (Docket S777, Ex. 26–1586). 

Lab Safety Supply, http:// 

www.labsafety.com. Accessed May 1, 2007 

Business Roundtable. Improving 

Construction Safety Performance: A 

Construction Industry Cost Effectiveness 

Project. Report A–3, January, 1982 (Docket 

OSHA–S042–2006–0667). 

National Academy of Social Insurance, 

Workers Compensation: Benefits Coverage, 

and Costs, 2004 (Washington, DC, 2006) 

Business Roundtable. Improving 

Construction Safety Performance: A 

Construction Industry Cost Effectiveness 

Project. Report A–3, January, 1982 (Docket 

OSHA–S042–2006–0667). 

Occupational Safety and Health 

Administration, Office of Regulatory 

Analysis, Background Document to the 

Regulatory Impact and Regulatory Flexibility 

Assessment for the PPE Standard, 1994, 

(Docket S060, Ex. 56). 

Office of Technology Assessment, 

Preventing Illness and Injury in the 

Workplace, Volume 2-Part B: Working 

Papers, 1994 (Docket H049, Ex. 189). 

Omark Safety Online, 2007. 

www.omarksafety.com. Accessed May 8, 

2007 Business Roundtable. Improving 

Construction Safety Performance: A 

Construction Industry Cost Effectiveness 

Project. Report A–3, January, 1982 (Docket 

OSHA–S042–2006–0667). 

Ryscavage, Paul. ‘‘Dynamics of Economic 

Well-Being: Labor Force, 1991 to 1993’’, U.S. 

Census Bureau, Current Population Reports, 

Household Economic Studies, P70–48, 

August 1995. 

U.S. Census Bureau, 2004. State and Local 

Employment and Payroll, March 2004. 

U.S. Census Bureau, 2005a. County 

Business Patterns, 2004. 

U.S. Census Bureau, 2005b. Statistics of 

U.S. Businesses 2004. 

U.S. Internal Revenue Service, Corporation 

Source Book, 2004. Accessed online at http:// 

www.irs.gov/taxstats/bustaxstats/article/ 

0,,id=149687,00.html, March 2007. 

U.S. Postal Service. 2006. Annual Report, 

2006. 

U.S. Small Business Administration, 2004. 

Table of Small Business Size Standards 

Matched to the North American Industry 

Classification System, Effective July 31, 2004. 

Accessed on-line at <http://www.sba.gov/idc/ 

groups/public/documents/sba_homepage/ 

serv_sstd_tablepdf.pdf>, March, 2007. 

U.S. Social Security Administration. 

Annual Statistical Supplement to the Social 

Security Bulletin. Washington, DC, 2006. 

Viscusi, K., ‘‘The Value of Risks to Life and 

Health’’, Journal of Economic Literature, Vol. 

31, No. 4. (Dec., 1993), pp. 1912–1946 

(Docket OSHA–S042–2006–0667). 

Viscusi, K. and Aldy, J. ‘‘The Value of a 

Statistical Life: A Critical Review of Market 

Estimates Throughout the World’’, The 

Journal of Risk and Uncertainty, 2003, 

27:1:5–76, 2003 (Docket OSHA–S042–2006–

0667). 

Worker Compensation Research Institute. 

Income Replacement in California. 

December, 1993 (Docket S777, Ex. 26–1586). 

Working Person’s Store, 2007. 

www.workingperson.com, Accessed May 8, 

2007 (Docket OSHA–S042–2006–0667). 

XVI. Environmental Impacts 

OSHA has reviewed this rule in 

accordance with the National 

Environmental Policy Act (NEPA), (42 

U.S.C. 4321 et seq.), the regulations of 

the Council on Environmental Quality 

(40 CFR Part 1500), and DOL’s NEPA 

procedures (29 CFR Part II). As a result 

of this review, OSHA has determined 

that this action will have no significant 

impact on the external environment. 

XVII. Federalism 

OSHA has reviewed this final rule in 

accordance with the Executive Order on 

Federalism (Executive Order 13132, 64 

FR 43255, August 10, 1999), which 

requires that federal agencies, to the 

extent possible, refrain from limiting 

State policy options, consult with States 

prior to taking any actions that would 

restrict State policy options, and take 

such actions only when there is clear 

constitutional authority and the 

presence of a problem of national scope. 

Executive Order 13132 provides for 

preemption of state law only if there is 

a clear congressional intent for the 

Agency to do so. Any such preemption 

is to be limited to the extent possible. 

Section 18 of the OSH Act (29 U.S.C. 

651 et seq.) expresses Congress’ intent to 

preempt state laws where OSHA has 

promulgated occupational safety and 

health standards. Under the OSH Act, a 

state can avoid preemption on issues 

covered by federal standards only if it 

submits, and obtains federal approval 

of, a plan for the development of such 

standards and their enforcement (state 

plan state) (29 U.S.C. 667). Occupational 

safety and health standards developed 

by such state plan states must, among 

other things, be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the federal standards. Subject to these 

requirements, state plan states are free 

to develop and enforce under state law 

their own requirements for safety and 

health standards. 

This final rule complies with 

Executive Order 13132. As Congress has 

expressed a clear intent for OSHA 

standards to preempt state job safety 

and health rules in areas addressed by 

OSHA standards in states without 

OSHA-approved state plans, this rule 

limits state policy options in the same 

manner as all OSHA standards. In states 

with OSHA-approved state plans, this 

action does not significantly limit state 

policy options. 

XVIII. Unfunded Mandates 

This final rule has been reviewed in 

accordance with the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

(2 U.S.C. 1501 et seq.) and Executive 

Order 12875. As discussed in the Final 

Economic Analysis, OSHA estimates 

that compliance with the rule will 

require expenditures of $85.7 million 

per year by affected employers. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64427 

Therefore, this rule is not a significant 

regulatory action within the meaning of 

Section 202 of UMRA (Pub. L. 104–4, 2 

U.S.C. 1532). OSHA standards do not 

apply to State and local governments 

except in States that have voluntarily 

elected to adopt an OSHA State plan. 

Consequently, the rule does not meet 

the definition of a ‘‘Federal 

intergovernmental mandate’’ (Section 

421(5) of UMRA) (2 U.S.C. 658). 

In addition, the Agency has 

concluded that virtually all State Plan 

States, the only States in which this rule 

could have any effect on State and local 

government employers, already require 

that employers pay for all types of PPE 

that will be covered by this rule. Thus, 

this rule will not have a significant 

impact on employers who are State and 

local governments. In sum, this rule 

does not impose unfunded mandates 

within the meaning of UMRA. 

XIX. OMB Review Under the 

Paperwork Reduction Act of 1995 

The final PPE payment rule simply 

clarifies that employers must pay for 

PPE used to comply with OSHA 

standards, with a few limited 

exceptions. As such, the rule does not 

contain collection-of-information 

(paperwork) requirements that are 

subject to review by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(PRA–95), 44 U.S.C. 3501 et seq., and 

OMB’s regulations at 5 CFR part 1320. 

PRA–95 defines ‘‘collection of 

information’’ as ‘‘[t]he obtaining, 

causing to be obtained, soliciting, or 

requiring the disclosure to third parties 

or the public of facts or opinions by or 

for an agency regardless of form or 

format * * *.’’ (44 U.S.C. 3502(3)(A)). 

A number of commenters questioned 

whether they would be required to keep 

receipts to prove PPE purchases and, 

thus, whether the final rule contains 

paperwork requirements (See, e.g., Exs. 

12: 22, 31, 36, 44, 54, 56, 68, 72, 73, 78, 

80, 95, 102, 115, 118, 127, 128, 136, 140, 

157, 158, 165, 166, 176, 186, 194, 197, 

202, 208, 212, 219, 224, 226, 232, 238, 

241). In a representative comment, the 

NAHB asked: 

How will OSHA enforce this standard? 

When a compliance officer comes on to the 

jobsite and sees every employee wearing a 

hard hat and safety glasses, will he request 

to see a receipt from the employer for the 

purchase of the PPE? Will the employer then 

be cited if he does not have a receipt to prove 

that he did, in fact, pay for the PPE being 

used? (Ex. 12: 212). 

The final standard does not require 

employers to maintain receipts or any 

other form of paperwork involving PPE 

payment, and OSHA will not cite an 

employer for failure to have such 

paperwork. The Agency understands 

that businesses commonly keep receipts 

to comply with standard accounting 

codes, for tax accounting purposes, and 

as a standard good business practice. 

However, an employer is not required to 

do so by this final rule. 

In response to the comment from 

NAHB, in most instances, an OSHA 

inspector will interview employers and 

employees to determine if an employer 

is complying with the PPE payment 

rule. OSHA does not believe it will be 

difficult to ascertain whether an 

employer paid for a particular piece of 

PPE and employers will not need to 

justify their purchases with receipts. 

After publishing the final rule, OSHA 

will instruct its inspectors in the 

requirements of the final rule and that 

the final rule does not require 

employers to keep a record of receipts 

or otherwise document determinations 

made. 

XX. State Plan Standards 

When federal OSHA promulgates a 

new standard or more stringent 

amendment to an existing standard, the 

26 states or U.S. territories with their 

own OSHA-approved occupational 

safety and health plans must revise their 

standards to reflect the new standard or 

amendment, or show OSHA why there 

is no need for action, e.g., because an 

existing state standard covering this area 

is already ‘‘at least as effective’’ as the 

new federal standard or amendment (29 

CFR 1953.5(a)). The state standard must 

be at least as effective as the final 

federal rule, must be applicable to both 

the private and public (state and local 

government employees) sectors, and 

must be completed within six months of 

the publication date of the final federal 

rule. When OSHA promulgates a new 

standard or amendment that does not 

impose additional or more stringent 

requirements than an existing standard, 

states are not required to revise their 

standards, although the Agency may 

encourage them to do so. These 26 states 

and territories are: Alaska, Arizona, 

California, Connecticut (plan covers 

only State and local government 

employees), Hawaii, Indiana, Iowa, 

Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, New 

Jersey (plan covers only State and local 

government employees), New York 

(plan covers only State and local 

government employees), North Carolina, 

Oregon, Puerto Rico, South Carolina, 

Tennessee, Utah, Vermont, Virginia, 

Virgin Islands (plan covers only 

Territorial and local government 

employees), Washington, and Wyoming. 

While this final rule does not change 

the types of PPE that are required, it 

imposes additional or more stringent 

PPE payment requirements on 

employers than existing OSHA 

standards. Therefore, the states will be 

required to revise their standards within 

six months of this Federal Register 

notice or show OSHA why their existing 

standard is already ‘‘at least as 

effective’’ as the new federal standard. 

Thirteen states require payment for most 

PPE through regulation or policy. In 

addition, three states (California, 

Minnesota, and Puerto Rico) currently 

require payment for all PPE. (In these 

states, the employer may be required to 

pay for the minimal PPE needed to do 

the job, but can require the employee to 

pay for equipment upgraded at the 

employee’s request.) 

OSHA received very few comments 

concerning implementation of the final 

rule in the state plan states. The State 

of Minnesota noted that it has required 

PPE payment by employers since 1973, 

without any exceptions, under 

Minnesota Statute § 182, subd. 10(a). 

Minnesota advocated federal adoption 

of the State’s policy of requiring the 

employer to pay at least the minimum 

cost of all PPE needed for the job, 

including items of a personal nature that 

can be used off the job, e.g., safety-toe 

footwear and prescription safety 

eyewear, without exception. The State 

expressed concern that employers in 

Minnesota would be confused if OSHA 

adopted a requirement different from 

the State’s (Ex. 12: 20). It is the 

employer’s responsibility to know and 

comply with the applicable 

occupational safety and health 

requirements, whether they are federal 

or OSHA-approved state plan 

requirements. States that choose to 

operate state programs are free to adopt 

more stringent standards but in doing so 

have a responsibility to communicate 

those requirements to employers in their 

state. A state plan state may always 

adopt standards identical to the federal 

if they wish to avoid such differences. 

While each state plan is ultimately 

responsible for communicating its statespecific standards and policies to the 

employers and employees within the 

state, federal OSHA will continue to 

work with the state plans to make 

information about state-specific policies 

and regulations that differ from the 

federal, including PPE payment 

requirements, publicly available to 

employers and employees through Web 

postings and other outreach activities. 

XXI. Authority and Signature 

This document was prepared under 

the direction of Edwin G. Foulke, Jr., 


jlentini on PROD1PC65 with RULES3
64428 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

Assistant Secretary of Labor for 

Occupational Safety and Health, 200 

Constitution Avenue, NW., Washington, 

DC 20210. This action is taken pursuant 

to sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 

1970 (29 U.S.C. 653, 655, 657), the 

Longshore and Harbor Workers’

Compensation Act (33 U.S.C. 941), the 

Contract Work Hours and Safety 

Standards Act (Construction Safety Act) 

(40 U.S.C. 333), and Secretary of Labor’s 

Order No. 5–2007 (72 FR 31160), and 29 

CFR part 1911. 

List of Subjects 

29 CFR Part 1910 

Chemicals, Electric power, Fire 

prevention, Gases, Hazardous 

substances, Health facilities, Health 

professions, Laboratories, Logging, 

Occupational safety and health, 

Protective equipment, Radiation 

protection. 

29 CFR Part 1915 

Chemicals, Electric power, Fire 

prevention, Gases, Hazardous 

substances, Health facilities, Health 

professions, Laboratories, Longshore 

and harbor workers, Occupational safety 

and health, Protective equipment, 

Radiation protection. 

29 CFR Part 1917 

Chemicals, Electric power, Fire 

prevention, Gases, Hazardous 

substances, Health facilities, Health 

professions, Laboratories, Longshore 

and harbor workers, Occupational safety 

and health, Protective equipment, 

Radiation protection. 

29 CFR Part 1918 

Chemicals, Electric power, Fire 

prevention, Gases, Hazardous 

substances, Health facilities, Health 

professions, Laboratories, Longshore 

and harbor workers, Occupational safety 

and health, Protective equipment, 

Radiation protection. 

29 CFR Part 1926 

Chemicals, Construction industry, 

Electric power, Fire prevention, Gases, 

Hazardous substances, Health facilities, 

Health professions, Laboratories, 

Occupational safety and health, 

Protective equipment, Radiation 

protection. 

Signed at Washington, DC this 2nd day of 

November, 2007. 

Edwin G. Foulke, Jr., 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

■ Accordingly, the Occupational Safety 

and Health Administration amends 

parts 1910, 1915, 1917, 1918, and 1926 

of Title 29 of the Code of Federal 

Regulations as follows: 

XXII. Final Rule 

General Industry 

PART 1910—[AMENDED] 

■ 1. The authority citation for subpart I 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, and 657); Secretary of 

Labor’s Order No. 12–71 (36 FR 8754), 8–76 

(41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 

FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160), as applicable, and 29 CFR Part 

1911. 

■ 2. A new paragraph (h) is added to 

§ 1910.132, to read as follows: 

§ 1910.132 General requirements. 

* * * * * 

(h) Payment for protective equipment. 

(1) Except as provided by paragraphs 

(h)(2) through (h)(6) of this section, the 

protective equipment, including 

personal protective equipment (PPE), 

used to comply with this part, shall be 

provided by the employer at no cost to 

employees. 

(2) The employer is not required to 

pay for non-specialty safety-toe 

protective footwear (including steel-toe 

shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

(3) When the employer provides 

metatarsal guards and allows the 

employee, at his or her request, to use 

shoes or boots with built-in metatarsal 

protection, the employer is not required 

to reimburse the employee for the shoes 

or boots. 

(4) The employer is not required to 

pay for: 

(i) The logging boots required by 29 

CFR 1910.266(d)(1)(v); 

(ii) Everyday clothing, such as longsleeve shirts, long pants, street shoes, 

and normal work boots; or 

(iii) Ordinary clothing, skin creams, or 

other items, used solely for protection 

from weather, such as winter coats, 

jackets, gloves, parkas, rubber boots, 

hats, raincoats, ordinary sunglasses, and 

sunscreen. 

(5) The employer must pay for 

replacement PPE, except when the 

employee has lost or intentionally 

damaged the PPE. 

(6) Where an employee provides 

adequate protective equipment he or she 

owns pursuant to paragraph (b) of this 

section, the employer may allow the 

employee to use it and is not required 

to reimburse the employee for that 

equipment. The employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is excepted by paragraphs (h)(2) through 

(h)(5) of this section. 

(7) This paragraph (h) shall become 

effective on February 13, 2008. 

Employers must implement the PPE 

payment requirements no later than 

May 15, 2008. 

Note to § 1910.132(h): 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. 

PART 1915—[AMENDED] 

■ 1. The authority citation for 29 CFR 

part 1915 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections. 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

■ 2. A new paragraph (f) is added to 

§ 1915.152, to read as follows: 

§ 1915.152 General requirements. 

* * * * * 

(f) Payment for protective equipment. 

(1) Except as provided by paragraphs 

(f)(2) through (f)(6) of this section, the 

protective equipment, including 

personal protective equipment (PPE), 

used to comply with this part, shall be 

provided by the employer at no cost to 

employees. 

(2) The employer is not required to 

pay for non-specialty safety-toe 

protective footwear (including steel-toe 

shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

(3) When the employer provides 

metatarsal guards and allows the 

employee, at his or her request, to use 

shoes or boots with built-in metatarsal 

protection, the employer is not required 

to reimburse the employee for the shoes 

or boots. 

(4) The employer is not required to 

pay for: 

(i) Everyday clothing, such as longsleeve shirts, long pants, street shoes, 

and normal work boots; or 

(ii) Ordinary clothing, skin creams, or 

other items, used solely for protection 

from weather, such as winter coats, 

jackets, gloves, parkas, rubber boots, 

hats, raincoats, ordinary sunglasses, and 

sunscreen. 

(5) The employer must pay for 

replacement PPE, except when the 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64429 

employee has lost or intentionally 

damaged the PPE. 

(6) Where an employee provides 

appropriate protective equipment he or 

she owns, the employer may allow the 

employee to use it and is not required 

to reimburse the employee for that 

equipment. The employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is excepted by paragraphs (f)(2) through 

(f)(5) of this section. 

(7) This paragraph (f) shall become 

effective on February 13, 2008. 

Employers must implement the PPE 

payment requirements no later than 

May 15, 2008. 

Note to § 1915.152(f): 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. 

Longshoring 

PART 1917—[AMENDED] 

■ 1. The authority citation for 29 CFR 

part 1917 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

■ 2. A new § 1917.96 is added, to read 

as follows: 

§ 1917.96 Payment for protective 

equipment. 

(a) Except as provided by paragraphs 

(b) through (f) of this section, the 

protective equipment, including 

personal protective equipment (PPE), 

used to comply with this part, shall be 

provided by the employer at no cost to 

employees. 

(b) The employer is not required to 

pay for non-specialty safety-toe 

protective footwear (including steel-toe 

shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

(c) When the employer provides 

metatarsal guards and allows the 

employee, at his or her request, to use 

shoes or boots with built-in metatarsal 

protection, the employer is not required 

to reimburse the employee for the shoes 

or boots. 

(d) The employer is not required to 

pay for: 

(1) Everyday clothing, such as longsleeve shirts, long pants, street shoes, 

and normal work boots; or 

(2) Ordinary clothing, skin creams, or 

other items, used solely for protection 

from weather, such as winter coats, 

jackets, gloves, parkas, rubber boots, 

hats, raincoats, ordinary sunglasses, and 

sunscreen. 

(e) The employer must pay for 

replacement PPE, except when the 

employee has lost or intentionally 

damaged the PPE. 

(f) Where an employee provides 

adequate protective equipment he or she 

owns, the employer may allow the 

employee to use it and is not required 

to reimburse the employee for that 

equipment. The employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is excepted by paragraphs (b) through 

(e) of this section. 

(g) This section shall become effective 

on February 13, 2008. Employers must 

implement the PPE payment 

requirements no later than May 15, 

2008. 

Note to § 1917.96: 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. 

Marine Terminals 

PART 1918—[AMENDED] 

■ 1. The authority citation for 29 CFR 

part 1918 is revised to read as follows: 

Authority: Section 41, Longshore and 

Harbor Workers’ Compensation Act (33 

U.S.C. 941); Sections. 4, 6, and 8 of the 

Occupational Safety and Health Act of 1970 

(29 U.S.C. 653, 655, 657); Secretary of Labor’s 

Order No. 12–71 (36 FR 8754), 8–76 (41 FR 

25059), 9–83 (48 FR 35736), 1–90 (55 FR 

9033), 6–96 (62 FR 111), 3–2000 (65 FR 

50017), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; 29 CFR Part 1911. 

■ 2. A new § 1918.106 is added, to read 

as follows: 

§ 1918.106 Payment for protective 

equipment. 

(a) Except as provided by paragraphs 

(b) through (f) of this section, the 

protective equipment, including 

personal protective equipment (PPE), 

used to comply with this part, shall be 

provided by the employer at no cost to 

employees. 

(b) The employer is not required to 

pay for non-specialty safety-toe 

protective footwear (including steel-toe 

shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

(c) When the employer provides 

metatarsal guards and allows the 

employee, at his or her request, to use 

shoes or boots with built-in metatarsal 

protection, the employer is not required 

to reimburse the employee for the shoes 

or boots. 

(d) The employer is not required to 

pay for: 

(1) Everyday clothing, such as longsleeve shirts, long pants, street shoes, 

and normal work boots; or 

(2) Ordinary clothing, skin creams, or 

other items, used solely for protection 

from weather, such as winter coats, 

jackets, gloves, parkas, rubber boots, 

hats, raincoats, ordinary sunglasses, and 

sunscreen. 

(e) The employer must pay for 

replacement PPE, except when the 

employee has lost or intentionally 

damaged the PPE. 

(f) Where an employee provides 

adequate protective equipment he or she 

owns, the employer may allow the 

employee to use it and is not required 

to reimburse the employee for that 

equipment. The employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is excepted by paragraphs (b) through 

(e). 

(g) This section shall become effective 

on February 13, 2008. Employers must 

implement the PPE payment 

requirements no later than May 15, 

2008. 

Note to § 1918.106: 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. 

Construction 

PART 1926—[AMENDED] 

■ 1. The authority citation for subpart E 

of 29 CFR part 1926 is revised to read 

as follows: 

Authority: Section. 107, Contract Work 

Hours and Safety Standards Act 

(Construction Safety Act) (40 U.S.C. 333); 

Sections. 4, 6, and 8 of the Occupational 

Safety and Health Act of 1970 (29 U.S.C. 653, 

655, 657); Secretary of Labor’s Order No. 12–

71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 

(48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 

FR 111), 5–2002 (67 FR 65008), or 5–2007 (72 

FR 31160) as applicable; and 29 CFR Part 

1911. 

■ 2. A new paragraph (d) is added to 

§ 1926.95, to read as follows: 

§ 1926.95 Criteria for personal protective 

equipment. 

* * * * * 

(d) Payment for protective equipment. 

(1) Except as provided by paragraphs 

(d)(2) through (d)(6) of this section, the 

protective equipment, including 

personal protective equipment (PPE), 

used to comply with this part, shall be 


jlentini on PROD1PC65 with RULES3
64430 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

provided by the employer at no cost to 

employees. 

(2) The employer is not required to 

pay for non-specialty safety-toe 

protective footwear (including steel-toe 

shoes or steel-toe boots) and nonspecialty prescription safety eyewear, 

provided that the employer permits 

such items to be worn off the job-site. 

(3) When the employer provides 

metatarsal guards and allows the 

employee, at his or her request, to use 

shoes or boots with built-in metatarsal 

protection, the employer is not required 

to reimburse the employee for the shoes 

or boots. 

(4) The employer is not required to 

pay for: 

(i) Everyday clothing, such as longsleeve shirts, long pants, street shoes, 

and normal work boots; or 

(ii) Ordinary clothing, skin creams, or 

other items, used solely for protection 

from weather, such as winter coats, 

jackets, gloves, parkas, rubber boots, 

hats, raincoats, ordinary sunglasses, and 

sunscreen. 

(5) The employer must pay for 

replacement PPE, except when the 

employee has lost or intentionally 

damaged the PPE. 

(6) Where an employee provides 

adequate protective equipment he or she 

owns pursuant to paragraph (b) of this 

section, the employer may allow the 

employee to use it and is not required 

to reimburse the employee for that 

equipment. The employer shall not 

require an employee to provide or pay 

for his or her own PPE, unless the PPE 

is excepted by paragraphs (d)(2) through 

(d)(5) of this section. 

(7) This section shall become effective 

on February 13, 2008. Employers must 

implement the PPE payment 

requirements no later than May 15, 

2008. 

Note to § 1926.95(d): 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. 

[FR Doc. 07–5608 Filed 11–14–07; 8:45 am] 

BILLING CODE 4510–26–P 


jlentini on PROD1PC65 with RULES3