July 21, 1999

U.S. Department of Labor (S-2315)
Occupational Safety and Health Administration
Attn: OSHA Docket Office, Docket #S-042
Room #N-2625
200 Constitution Ave., NW
Washington, DC 20210

EMPLOYER PAYMENT FOR PERSONAL PROTECTIVE
EQUIPMENT - OSHA PROPOSED RULE

The purpose of this letter is to submit technical comments addressing the 3/31/99 OSHA proposal requiring employers to pay for personal protective equipment (PPE) with the exception of safety-toe protective footwear, prescription safety eyewear, and the logging boots required under 29CFR 1910.266(d)(1)(v).

Significant numbers of ASSE members reviewed this proposal which included insight from the Board of Directors, Council on Professional Affairs (CoPA), Council on Practices and Standards (CoPS), and the different ASSE divisions. Based upon this collective insight, our comments are as follows:

The majority of ASSE members reviewing the proposal commented that the rule is a codification of what most organizations already do during their course of normal business operations. Observations were made that many 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. One concern raised by ASSE members is that if the Agency becomes involved in trying to prescribe individual rules for PPE such as welders, lumber industry workers, etc… We foresee the agency eventually being in a quagmire of PPE deviations, exceptions, and directives.

We note the following:

  • ASSE agrees with the OSHA contention that: The Occupational Safety and Health Act of 1970 requires employers to provide a safe and healthful workplace for their employees. This mandate includes 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.

  • Society members working in the international arena commented that most countries of the industrialized world require that employers provide and pay for PPE.

  • A consensus was reached to agree with OSHA's assertion that it is the clear intent of most standards/regulations that an employer must provide PPE even though the language regarding employer payment has not always been consistent.

  • ASSE members pointed out that most OSHA health standards issued after 1977 have been clear through the preamble and regulatory text that PPE must be provided to the employee at the cost of the employer.

  • Our research indicated there are some safety standards which clearly state that an employer shall provide and pay for PPE. Several members pointed out that some employers provide at no cost to employees, all protective equipment and personal protective equipment which is required for work and kept at the work site.

  • A key issue for ASSE members in improving the efficiency/effectiveness of safety and health programs is consistency. Observations were made supporting the OSHA statement that the proposed rule will lead to greater consistency among OSHA standards.

  • There was an almost unanimous consensus, that employers through the work of on-staff safety professionals, are in a better position to identify and select the correct equipment and to maintain it properly.

  • It was pointed out that most employers have the financial resources, though the budget and planning process, to purchase PPE of necessary quality and pay for replacements if necessary.

  • There was a consensus to agree with the OSHA finding that an employer should not have to pay for prescription safety eyewear and safety-toe footwear as a general guideline since such equipment is personal in nature and frequently worn off the job.

  • During our review of the proposed rule, there was a consensus to agree with the OSHA contention that PPE is a hazard control measure. ASSE also agreed with the OSHA statement: that most standards require employers to implement engineering controls, such as ventilation or barriers, and administrative controls, such as regulated areas or danger zones, because these are typically thought to be the primary ways to reduce hazardous exposures to employees. There has never been any doubt that employers pay for these controls. However, we do recommend that OSHA clarify in the rule that PPE is the least desired hazard control method. Several members commented that this language could indicate to some employers that PPE is an acceptable alternative to controlling a hazard rather than through applicable engineering controls.

OSHA Input Requests
OSHA asked for input on the following questions which were listed on Page 15416 of the 3/31/99 Federal Register:

  • OSHA Question #1: OSHA also considered proposing the following alternative regulatory text:

The employer shall provide, at no cost to the employee, all protective equipment and personal protective equipment except for protective equipment which the employer demonstrates is personal in nature and customarily used off the job.

This provision is stated in general language and would have the advantage of providing some flexibility for specific workplace situations involving PPE. However, a major disadvantage of this approach is that it uses the terms ``personal in nature'' and ``customarily used off the job,'' which OSHA would need to define and interpret. OSHA's proposed exception, which is more specific than the text of the alternative discussed above, provides greater certainty to employers and workers.

OSHA requests comments on the merits of both approaches, including views on how OSHA should interpret the regulatory text.

ASSE: The consensus of the Society is to support the alternative language as listed above. While we acknowledge that it is not as clear as the current proposal, it does give safety professionals more flexibility in addressing specific workplace conditions. Most members who reviewed the proposal were not overly concerned with OSHA interpreting the different terms since the belief is that this same scenario would take place under the current proposal as well. ASSE sees the alternative language as being more consistent with commonly accepted business making decision processes and procedures.

  • OSHA Question #2: Are there other types of PPE, beside safety-toe safety footwear and prescription eyewear, that should be excepted from the proposed payment requirement? Why or why not? Please submit any available supporting documentation. Alternatively, should OSHA require employers to pay for all PPE, including safety-toe footwear and prescription safety eyewear? Why or why not?

ASSE: A significant number of our members, from a wide variety of industries, believe that the two (2) proposed exceptions are reasonable and consistent in most industries. There were not any suggested additional exemptions to the proposal. A number of members commented that some employers will pay for all PPE when bringing equipment off-site could result in contamination. A specific example would be PPE used in a coal gasification plant. Due to the nature of the process, some plants will not allow any PPE to be taken off-site, thus, the employer pays for all PPE including safety shoes, prescription safety eyewear, and coveralls.

  • OSHA Question #3: 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?

ASSE: Members from the ASSE Construction Division reviewed the proposal and did not have any suggestions in addressing the question. Many construction workers use safety-toe wear on a daily basis. Many of these construction workers also wear prescription safety eyewear, thus, the two (2) exceptions are appropriate for the construction industry. Workers may perform for different employers, however, safety-toe footwear and safety prescription eyewear will continue to be worn on the different sites regardless of the employer.

OSHA Question #4: The longshoring and marine terminal industries have a unique employer-employee relationship in many ports. At some ports, employees are hired for a job through a labor pool, and the same employee may work for 5 different employers in the same week. 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?

ASSE members working in the maritime industry point out that on the west coast there is an organization called the Pacific Maritime Association (PMA) which is an employer representative. Each new longshore person is issued a hard hat and vest by PMA. If the individual is dispatched and does not show up with the provided equipment, the employer will issue new equipment, and make a payroll deduction. Gloves are required for longshoring functions, and they are issued to the employee. If they are lost, then a second pair will also be issued with a payroll deduction. Ear plugs are not an issue since they are disposable Welding equipment stays on the job site, and is generally returned at the end of each shift, thus, it is not an issue either.

Safety footwear in the maritime industry is an issue worthy of additional research by OSHA. ASSE members pointed out there is an ongoing discussion revolving around the issue of "safety footwear versus appropriate footwear" in the maritime industry. An example of this concern is the current situation with the Negotiated Pacific Coast Maritime Safety Code. We are aware that several employers have offered to give an allowance on an annual basis to employees, but the offer has not been accepted. The reason is due to concern that employers will direct employees to wear safety footwear instead of appropriate footwear. The employers lost in arbitration on the issue, but they continue to receive citations anyway.

OSHA Question #5: OSHA requests comments, information, and data on whether employee-owned PPE is less protective than employer-provided PPE, and under what circumstances.

ASSE: The consensus of the Society is that employee-owned PPE is likely to be less protective than employer provided PPE. Management/the employer is the primary selector of PPE, and such selection should never be done solely and exclusively by employees for the following reasons:

  • The employee may not have the knowledge to select proper equipment.

  • The employee may select a piece of equipment which is more based on price than quality.

  • The equipment selected might be used in a task it was not designed to address.

A good example would be the selection of eyewear. An employee may select a product from a discount store which does not comply with the ANSI Z-87 Eye and Face Protection Standard. The employee could choose a lesser product due to either cost considerations or being unaware of the significant differences in such products. We are aware of several instances when such a situation has taken place. The result was that an employee used eyewear which did not meet the Federal standard and after an inspection by OSHA, a citation was issued. The employer was under the assumption that the employee selected appropriate eyewear, however, such was not the case.

OSHA Question #6: 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?

ASSE: Our research indicates that there are some employees who do purchase their own welding gloves. We are not sure if this is due to an employer's policy, or if the employee has a preference on a certain style of glove due to comfort. We believe the issue of welding gloves is a unique situation and something the Agency may wish to research further.

OSHA Question #7: 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?

ASSE: We are aware of significant problems addressing the issue of employer-employee disagreement with equipment selection. Our experience as secretariat of the Z87 Eye and Face Protection Standard indicates there have been disagreements over the selection of equipment. Most of these issues generally address what might be considered trivial in nature, (e.g. color, style, etc…). The collective experience of our members indicates there has been little disagreement over the quality or utility of selected equipment. Most of our members commented that the employer selects the equipment, and it is up to the employer to ensure that it is utilized. If an employee chooses to use a different piece of equipment it is the responsibility of the employer to ensure that it is appropriate for the workplace. However, it is not the responsibility of the employer to reimburse the employee for any cost related to the additional product. Most of our members thought having the employer paying the difference for product selection would be additional, and unneeded, bookkeeping.

OSHA Question #8: 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?

ASSE: ASSE members reviewing the proposal commented that most 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. This appeared to be especially true if the employee already selected/paid for prescription safety-eyewear used in most sites of the workplace.

OSHA Question #9: Preliminary Economic Analysis has found that this proposal will not impose significant impacts on firms in any industry segment or on affected small businesses. OSHA requests comments on the analysis and on any industry or subindustry that may have particular economic problems as a result of the proposed rule.

ASSE: Most of our members thought the economic analysis ($61.9 million) is a higher estimate than the eventual actual cost. The reason is that most ASSE members commented that PPE is already paid for by their companies, and they see little impact from this proposed rule. The exception could be with small business entities, however, ASSE members working as independent consultants to small business commented that many of their clients already provide PPE to their employees.

OSHA Question #10: Should the standard require the employer to pay for inserts or other articles that are uniquely personalized components of personal protective equipment, such as head coverings used under welding helmets and custom prescription lens inserts worn under a welding helmet or a diving helmet?

ASSE: Most ASSE reviewers commented that such items are already paid for and are really not an issue of concern. Comments were also made that the alternative language proposed in Question #1 of this section provides the employer with the flexibility to decide what is, or is not, appropriate to pay for.

OSHA Question #11: OSHA intends to require employers to pay for the initial issue of PPE. Should employers also be required to pay for PPE that must be replaced due to normal wear and tear or occasional loss?

ASSE: Our members commented that most of their employers have the policy that if a product is lost then the employee should be responsible to pay for the replacement. However, if the product is worn down, or broken through appropriate use, then the employer on most occasions provides a replacement at no cost.

OSHA Question #12: OSHA requests comments on the conclusions about the costs and benefits contained in the Preliminary Economic Analysis section.

ASSE: We would like to see more from the Agency indicating why the proposal is of economic benefit to the country. By this we mean the Agency spends a great deal of time indicating how much an employer will have to spend to be in compliance or the expected decrease in cost due to lower numbers of injuries. However, we also maintain that a whole industry has grown around the enactment of such proposals. We suggest that OSHA work with ASSE and organizations such the International Safety Equipment Association (ISEA) to research how much new product will be produced by safety product manufacturers, if/how many new jobs will be created by such proposals, and how does such an increase contribute to the country's economy.

We thank you for your attention to this matter, and if you should have any questions or concerns please feel free to contact the Society.

Sincerely,

Frank H. Perry, CSP, PE
Society President, 1999-2000

Copy To:          ASSE Board of Directors
                        ASSE Council on Professional Affairs
                        ASSE Governmental Affairs Committee
                        OSHA Docket File S-775

FF/TRF/CORRS1186
encl.


     

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