The 'Tool of the Trade' Fiasco

One size definitely doesn't fit all where PPE payment rules are concerned.

HERE's a rulemaking that has gone seriously awry. With its "limited reopening of the rulemaking record" in the Employer Payment for Personal Protective Equipment rule, OSHA this year did much worse than nothing. It turned a well-settled safety topic into a cauldron, thus creating a can of worms its stakeholders aren't sure can be sorted out.

The "employer pays" rulemaking had been on ice for five years when OSHA suddenly reopened the record in July. Comments closed in August with the expectation OSHA might issue a final rule by the end of 2004. Out of the blue, OSHA asked whether PPE that is personal (for reasons of hygiene and personal fit) and taken from job to job could be considered "tools of the trade" and not paid for by employers.

You know what happened next. Contractors said fall harnesses are individually fitted and thus a tool of their trade. The National Association of Home Builders said it regards hard hats, safety glasses, work shoes, and general duty gloves as tools of its members' trades and added there should be no OSHA regulation saying employers must pay for any type of PPE. Both NAHB and Associated Builders and Contractors Inc. want the final rule to say employers don't have to replace PPE that's been lost, destroyed, or damaged by an employee and should be compensated by employees for PPE they remove from a job site without permission.

The AFL-CIO's Department of Occupational Safety and Health blasted OSHA for reopening the issue, claiming low-paid workers will suffer and employers will use the "tools" rationale to avoid paying for engineering controls. OSHA's original "employer pays" proposal in 1999 had just three exceptions--safety-toe footwear, prescription eyewear, and logging boots--but this reopening could hand financial responsibility to employees for every kind of PPE, said the labor federation, which wants employers to buy all PPE. By going down this road, OSHA had "unnecessarily invited a wide range of ambiguities and compliance nightmares," the AFL-CIO said.

It is a nightmare. Commenters rightly said OSHA can't write a "one size fits all" PPE payment rule exempting "tools of the trade" because industry practices vary so widely. You must specify each type of PPE we wouldn't have to buy, contractors said, listing in the final rule what you want from every industry the rule affects.

The rulemaking that seemed straightforward and easy in 1999 has blown a tire. OSHA's standards say employers must "provide" PPE and are responsible for controlling hazards and preventing injuries. By its very nature, most PPE is essentially personal and fitted in some way to an individual. But putting a federal "tool of the trade" stamp on protective equipment is dangerous, because that stamp denies its role as a worker's last line of defense against injury or illness.

This article originally appeared in the October 2004 issue of Occupational Health & Safety.

About the Author

Jerry Laws is Editor of Occupational Health & Safety magazine, which is owned by 1105 Media Inc.

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