Overview

The question of who should pay for Occupational Safety & Health Administration (OSHA)-required personal protective equipment (PPE) has been subject to various interpretation and application by employers, OSHA, the Occupational Safety and Health Review Commission (OSHRC) and courts.

The provisions in OSHA standards that require PPE usually state that the employer is to provide or to ensure the use of such PPE. Some of these provisions specify that the employer is to provide PPE at no cost to the employee, some suggest that the employee owns the PPE, while other provisions do not explicitly mention who is obligated to pay for PPE. Other PPE provisions do not require the employer to pay for the protective equipment—it leaves the issue of who pays for certain kinds of PPE open to negotiation and agreement between the employer and employee or employee representative.

Currently, 29 Code of Federal Regulations (CFR) 1910.132 states that appropriate PPE must be provided when necessary because of workplace hazards, but it does not expressly state who should pay for the required PPE.

OSHA attempted to establish a policy and to clarify the issue of payment for required PPE in a memorandum to its field staff dated October 18, 1994 and titled “Employer Obligation to Pay for Personal Protective Equipment.” In this memorandum, OSHA stated that for all PPE standards, the employer must both provide and pay for employees' required PPE except in limited situations. OSHA indicated that when PPE is very personal in nature and used by the employee off the job, the issue of payment may be left to labor-management negotiations.

The Review Commission declined to accept the interpretation given in the memorandum as it applied to Section 1910.132(a), OSHA's general PPE standard for general industry, which was based on litigation between the U.S. Secretary of Labor and Union Tank Car Company. In that particular case, an employer was issued a citation for failing to pay for metatarsal foot protection and welding gloves. The commission vacated the citation and found that the Secretary had failed to adequately explain the policy outlined in the 1994 memorandum.

To respond to the commission's Union Tank Car decision and to clarify when employers are obligated to pay for PPE, OSHA then issued the proposed rule, 29 CFR 1910.132, which established that employers pay for all types of PPE as required under OSHA standards except for safety shoes, prescription safety eyewear and logging boots.

OSHA preliminarily concluded that the OSH Act implicitly required employers to pay for PPE that is necessary for employees to perform their jobs safely, and it also 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.

In summary, the proposal provided for employer payment for personal protective equipment with certain specific exceptions.

In 1997, the Review Commission declined to accept OSHA's interpretation that, with certain exceptions, employers must pay for employees' personal protective equipment (PPE) as required under Section 1910.132. OSHA then initiated rulemaking proceedings to clarify who is required to pay for PPE in all situations in which an OSHA standard requires the use of PPE.

On March 31, 1999, OSHA issued a proposed rule to require employers to pay for all PPE (with a few specific exceptions) that their employees use. After OSHA received public comments and held hearings, the record was closed on December 13, 1999.

Status

The record then presented two important issues that OSHA wanted to address and to open for public comment.

First, OSHA believed that further information was necessary to fully explore a possible limited exception for paying for PPE that is considered to be a “tool of the trade.” In the record, “tools of the trade” were referred to as PPE that the employee typically supplies, takes from job site to job site or from employer to employer. OSHA then sought comments that could establish what constitutes a “tool of the trade” for purposes of employer payment. OSHA currently invites comment on whether or how “tools of the trade” should be included in any requirement for employer payment for PPE.

Second, OSHA determined that although 29 CFR 1910.132 requires employers to provide PPE and to ensure its use, it does not impose an enforceable obligation on employers to pay for PPE. Employees must be afforded the protection of PPE regardless of who pays for it.

As of March 28, 2005, the PPE payment rulemaking is considered ongoing.

Case Study of
Eye Injury and the Z87.1 Standard

Background on Z87.1 Standard

Safety, Health and Environmental (SH&E) professionals should be aware that the American National Standard, ANSI Z87.1-1989 (R 1998) Practice for Occupational/Educational Eye and Face Protection, was withdrawn by ANSI and replaced with a new revision. The revised standard was approved in 2003, and its approaches and concepts differ significantly from the 1989 version of the standard.

ASSE members and SH&E professionals should note that in the Z98.1-1989 Standard, one level of impact resistance was specifically recognized. For SH&E directors, it was a relatively simple process to stipulate that employees should wear Z87-compliant protectors. The basic eyewear program often included a statement indicating that all eyewear worn in the workplace would be compliant with the Z87.1-1989 Standard. This was also important because OSHA recognizes the 1989 version of the standard, and it is cited by reference in many different areas of the regulations and standards.

However, the new standard recognizes advances in technology, specifically that of polycarbonate lenses versus glass. As a result of these technological changes in the industry, different levels of impact resistance were recognized in the standard. The hazard assessment and selection guidelines in the standard are much more significant for SH&E professionals than they were previously. It is no longer appropriate for an organization to rely upon a notation in a manual, which requires a safety eyewear program to include the use of a Z87.1 protector, as this may open up an organization to additional liability. The Z87 committee recognized this change and created a more detailed selection chart for SH&E professionals in the field to use.

The following case study underscores the importance of complying with revised standards and of providing proper protective eyewear to employees—regardless who pays for it.

Case Description

A small plant in the eastern United States has one SH&E professional on staff. The plant produces machine parts, and it has a large metal fabrication component in its operations. The primary hazard/exposure for eye and face is from impact. The impact hazard/exposure would be viewed as high-impact, and it is evident that side protection would be required. The company has a fairly detailed eye and face protection program for its workers, but it primarily addresses plano eyewear. The prescription eyewear program is described in one sentence in the company safety manual:

“Workers shall wear prescription eyewear that meets the Z87.1 Standard.”

The plant also had a notation that it was not responsible for prescription eyewear due to the 1999/2000 rulemaking, which indicated that employers do not have to pay for prescription protective eyewear or steel-toed boots.

In November 2003, an employee came to work with a pair of prescription glasses that did not meet the Z87.1 Standard. The company gave the employee a pair of plano protectors to put over the prescription eyewear. The employee wore them for approximately 15 minutes and then removed them because they felt uncomfortable, were unwieldy and created a hazard when worn near grounding equipment. The employee also felt that the protectors did not provide a full field of vision.

The company then instructed the employee to purchase prescription protective eyewear at the employee's expense. Some suggestions were made as to what kind of product the employee should select, but a hazard assessment was not conducted, and the employee was not informed of the different levels of impact resistance now available in prescription eyewear. The employee wished to use a non-polycarbonate product because of its style, utility and the employee's desire to have transition lenses for personal use. The company did not object, and it was agreed that the employee would be allowed to wear the lower level of impact protection. The company did not conduct a hazard assessment.

The eyewear was ordered, and the employee wore the plano protectors for one week without incident until the new prescription eyewear came in. On the second day of wearing the new eyewear, a projectile hit the protector with what appeared to be great velocity (the actual speed/velocity is still open to debate and disagreement). The projectile broke the lens, and the lens injured the employee's eye. The employee subsequently had two operations and eventually lost vision in the eye. A lawsuit has since been filed alleging that the company was negligent in working with the employee to select proper eyewear for the jobsite.

Views and Opinions

From the position of this evaluator, the company was not responsible or proactive in addressing this issue, and it will probably lose the lawsuit if it proceeds to court. A review indicated the following:

At the time of the incident, the company used, and continues to use, the 1989 version of the Z87.1 Standard even though it knew that a new one had been published. It made no attempt to secure the new standard or to understand the changed requirements. The company claimed that it did not order the new standard because it cost $37.
The company did not conduct a hazard assessment of the workplace in question. This did not meet the requirements of the Z87.1 Standard or the hazard assessment requirements of OSHA's standards and regulations.
The company safety director knew that a 2003 version of the Z87.1 Standard was available, but the director apparently was not aware that the standard now included different levels of impact resistance.
As a general operating policy, the company safety director told employees to purchase a Z87.1-compliant protector—without understanding the document's requirements. The director continued to operate under the assumption that stipulating a Z87.1-compliant protector would cover the company and its hazards and exposures.
The company and its safety director did not have a clear understanding of the 1999/2000 OSHA rulemaking that addresses payment for PPE. They believed that if they did not have to pay for prescription eyewear, then they were also not responsible to ensure that the selected eyewear was appropriate for the workplace.
The company did not want to establish a prescription eyewear program because they thought that this would open the company to additional liability. The company did not seem to be aware of the liability they had already with respect to workplace injuries, fatalities and illnesses. Establishing a prescription eyewear program does not necessarily indicate that the company must pay for the eyewear (e.g. national referral program).

At the time of this writing, the firm had already spent in excess of $40,000 for attorney fees and litigation, an OSHA inspection that resulted from the complaint and other miscellaneous costs. There is no estimate for indirect costs. It also appears that the case will be settled out of court. The settlement costs are unknown, but they are expected to be high.

Lessons Learned

SH&E professionals should be aware of new developments in SH&E, such as revised voluntary national consensus standards, in addition to standards and regulations issued by the United States government.
A hazard assessment is always the starting point when evaluating hazards and exposures.
Think in terms of Return on Investment (RoI) and investment in an SH&E program. The company probably could have avoided the situation described above for less than $350.
Carefully review assumptions about risk and liability. In SH&E, transferring risk and liability will not work on most occasions.
SH&E professionals should understand that compliance with OSHA law must be viewed as the absolute bottom rung on the ladder of high-caliber performance.