Back in 1999, OSHA asked for opinions on this question by issuing a proposed rule that employers pay for all personal protective equipment (with a few exceptions). Comments were received, hearings were held and the record was closed at the end of that year.

While evaluating the record, OSHA determined that one issue needs further comment, and it has reopened the record on that issue alone. Comments must be postmarked no later than August 23, 2004.

According to a summary released by OSHA, “the issue relates to whether or how a general requirement for employer payment for personal protective equipment (PPE) should address types of PPE that are typically supplied by the employee, taken from job site to job site or from employer to employer, and considered to be ‘tools of the trade.’”

The summary goes on to explain the history of OSHA’s efforts to resolve this issue and concludes with seven questions for which answers and comments are sought.

  1. If OSHA issues a final rule that generally requires employers to pay for most PPE, should safety equipment considered to be “tools of the trade” be included or excluded from the requirement? On what basis?
  2. Several criteria for treating PPE as a tool of the trade were identified by rulemaking participants. These included: (1) The PPE was expected to be used by only one employee for reasons of hygiene or personal fit, (2) the employee using the PPE typically worked on multiple job sites or for several employers and brought the PPE with them to each job site, and (3) the practice of considering PPE to be a tool of the trade was customary in the industry. Are these reasonable criteria for considering whether or not to require employer payment for PPE regarded as a tool of the trade? Are there other criteria that would justify considering PPE to be a tool of the trade? If so, why?
  3. If the rule includes a specific provision for PPE considered to be tools of the trade, should the rule identify specific types of PPE that fall into this category, or should the rule generally apply a broad category of PPE defined to be tools of the trade? How should the broad category of PPE as tools of the trade be defined so that it is clear and unambiguous to employers and employees?
  4. Should PPE be considered to fall into the category of “tools of the trade” only for specific industry sectors where it has been customary to consider PPE as tools of the trade? If so, which industry sectors? How many employees use PPE that is considered to be tools of the trade? What are their occupations?
  5. Should PPE be considered to be tools of the trade only where the PPE is personal in nature and employees typically work for multiple employers and/or go from job site to job site?
  6. Provide specific examples of safety equipment that employees typically furnish themselves and carry from job site to job site or from employer to employer in your industry. What interests does this practice serve? In such instances, how does the employer ensure that the PPE is effective and complies with applicable standards? What is typically the practice when employees fail to bring such PPE to the job site? Please describe to the best of your knowledge how many employees wear such PPE in your industry and how often it needs to be replaced.
  7. What effect might employee payment for PPE treated as tools of the trade have on workplace safety and health?

Comments may be faxed to 202-693-1648. They must be limited to 10 pages or less, and the original and one copy must be sent to the Docket Office immediately after faxing.

Comments also can be mailed (two copies) to:
Docket Office, Room N2625
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

[Steve Clark]