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AMERICAN SOCIETY OF SAFETY ENGINEERS
1800 East Oakton Street
Des Plaines, Illinois 60018-2187
847.699.2929
FAX 847.296.3769
www.asse.org
August 23, 2004
The Honorable John Henshaw
Assistant Secretary of Labor
Occupational Safety and Health Administration
U.S. Department of Labor
Docket Office – Docket No. S-042
Room N-2625
200 Constitution Avenue. NW
Washington, DC 20210
RE: Comment on Employer Payment for Personal Protective Equipment
Dear Assistant Secretary Henshaw:
In July 1999, when the American Society of Safety Engineers (ASSE) provided comments on the initial proposed rule by the Occupational Safety and Health Administration (OSHA) concerning employer payment for personal protective equipment (PPE), ASSE stated clearly the general conclusions of its members on the issue of responsibility for PPE payment that formed the basis for its comments then. Among those conclusions stated in 1999 were the following:
These conclusions have not changed in the intervening years and again provide the basis for the following ASSE responses to the seven questions OSHA has asked to help it further define the difficult line between employer and employee responsibility in providing necessary personal protections in the workplace.
OSHA rulemaking in this matter must clearly state an assumption that it is the employer who is responsible for providing and paying for PPE reasonably necessary to provide protections to workers on the job. The certain basis for this assumption is the employer's statutory responsibility under the OSH Act requiring employers to provide for their employees a safe and healthful workplace free from recognized hazards. PPE is intended to address hazards not otherwise controllable in the workplace. Therefore, in all instances where PPE is needed, a safe and healthful workplace is not possible without PPE that is correct for the hazards in the workplace, fits properly, is up-to-date and is properly maintained.
With such an assumption firmly established, ASSE believes that a very narrowly drawn exception for “tools of the trade” can be established based on generally accepted industry-specific practices concerning specific uses of certain PPE.
These criteria are reasonable and should provide the basis for determining the PPE that can safely be considered the employee's responsibility for bringing to the jobsite. That being said, it is necessary to set out in regulation a further qualifier that these criteria do not exempt employers from the responsibility for ensuring that “tools of the trade” are correct for the hazards in the workplace, fit properly, are up-to-date and are properly maintained. In fact, a significant majority of our member SH+E practitioners who have shared their thoughts with ASSE on this rulemaking report that their employers pay for or otherwise provide stipends or incentives for PPE of every description in nearly all instances. Such 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 follow-through necessary to address those hazards. While employees may be required to bring such “tools of the trade” to the job site, employers' responsibilities continue.
ASSE also believes that unions have a role to play in ensuring their members' safety and health on the work site and the final rule on this matter should reflect that role. In industries that employ union trades and crafts, the union should provide education and training on proper PPE selection, use and maintenance. Such unions should also be made responsible for assigning to job sites only those workers who have completed such training and who are capable of arriving at the job site with all necessary PPE considered “tools of the trade.”
The best possible approach to worker safety and health involves the widest possible set of opportunities to support safety and health. Employees have a responsibility to provide appropriate “tools of the trade” where required under these criteria. Their unions have a responsibility in supporting and encouraging the successful completion of that responsibility. And employers have a continued responsibility to ensure that the “tools of the trade” employees bring to the job site meet the hazard the employer remains responsible for addressing.
In response to questions 3, 4 and 5, ASSE does not believe a proscriptive regulation that attempts to address specific PPE in specific industries is possible or wise for OSHA to undertake on its own. Even if every industry and every possible PPE could be addressed, advances in PPE and changes in manufacturing, construction or even business practices would quickly make such regulations out of date. For the federal government, keeping up with even adopted voluntary safety and health consensus standards is a difficult project for the federal government. Keeping up with quickly changing industry changes would be even more daunting.
Instead, ASSE would hope that a process could be established in final rulemaking that would require stakeholders from a specific industry, including management, labor, safety and health organizations, and the appropriate PPE provider industry to engage in negotiated rulemaking to determine the specific “tools of trade” for each industry. As we have said in previous comments on other issues, the current Administration has demonstrated a real value in engaging industry stakeholders in cooperative efforts to meet workplace safety and health needs. Now is the time to build on that relationship-building success to provide the best possible answer to the question of what are “tools of trade” in each industry. As one ASSE member stated,
“I would suggest that many of the questions posed by OSHA's current inquiry are abundantly available in the numerous arrangements between employers and workers in those industries…”
OSHA should not seek on its own to set that tradition down in regulation but should establish a process that proactively determines the industries where “tools of the trade” determinations are needed and then lets stakeholders who already have the knowledge of what are and are not “tools of the trade” determine how that industry's tradition should continue into the future.
While this question is addressed to specific industries when ASSE's members can be found across virtually every industry, we are pleased to see the recognition of the employer's responsibility to “ensure that the PPE is effective and complies with applicable standards.” This is accomplished through a variety of means, including but not limited to
While ASSE cannot address specific situations, it can share through our members'comments some of the best practices that employers are engaged in to ensure their investment in workplace safety and health succeeds with PPE, as the following indicate:
“There is no impact to our company by this rule at all as we already buy all PPE with the exception of safety shoes, which are subsidized by the company. It is just good business to provide 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.”
“We provide all required PPE for all employees at the company expense as I feel they should do. Items such as shoes are mandated and there are more than 100 styles that are made available to the employee from multiple suppliers at no cost. Prescription glasses are handled through an outside vendor that provides several styles and options at no cost to the employee.”
“A growing number of companies already provide one pair of prescription safety glasses per year to their employees who require them, or $100.00 toward the cost of getting them.”
“Prescription glasses are often addressed by giving each employee an allowance. He/she can go to his own eye doctor.”
“I have worked in the construction industry for the last 25 years. During that time I have worked for five different companies. Each of the companies had adopted the philosophy that the employer would purchase PPE except safety shoes and prescription safety glasses.”
The effects our members see when PPE decisions are left to employees include the following:
“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 manufacturer's specifications.”
“I would expect the financial strain on less well-paid employees would have a negative affect on the purchase of quality and appropriate PPE if the responsibility is for purchase of PPE is assigned to employees.”
“I have found 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 proper equipment is in good condition and can be utilized.”
As we have indicated, there is a proper place for narrowly drawn industry-specific “tools of the trade” exceptions to the general assumption that employers should pay for PPE. Nevertheless, the less involved employers are in ensuring appropriate PPE use in their workplaces, the greater the risk that workplace hazards will not be addressed through PPE. That is why, in whatever exception OSHA makes with regard to “tools of the trade” in a final rule, that exception needs to be as narrowly determined as possible.
As we do for all federal rulemaking where appropriate, ASSE urges OSHA to consider inclusion of the latest voluntary consensus standards concerning PPE. For example, with regard to workplace eyewear, ASSE would hope that the American National Standards Institute (ANSI) standard Z87.1 – 2003, Occupational and Educational Personal Eye and Face Protection Devices , would be included as the standard that needs to be met for all employee eye protection PPE. Likewise, any reference to employee training, which is crucial to proper PPE use, should include reference to ANSI Z490.1-2001, Criteria for Accepted Practices in Safety, Health, and Environmental Training .
ASSE commends OSHA for its continued examination of these issues. As always, ASSE's members stand ready to serve as a resource to the Agency as it devises a proper resolution of the variety of interests at issue in determining proper responsibility for PPE.
In the end, ASSE encourages OSHA and all with an interest in this issue to keep in mind 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 the primary ways to reduce hazardous exposures to employees. And there has never been any doubt that employers pay for these controls. From an SH+E practitioner's perspective, PPE is the least desired hazard control. Unfortunately, some employers see PPE as an acceptable alternative to controlling a hazard through needed engineering and administrative controls. That practice is unacceptable to ASSE, and we hope a final rule on this matter would include a statement definitively support this position.
Sincerely,
Gene Barfield, CSP
President
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