Text
from the OSHA Logging Preamble Section IV: Major Issues
A. Introduction
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2. Personal protective equipment. In the hearing notice OSHA
raised the issue about who should pay for personal protective equipment (PPE) that
employees are required to use or wear. The Agency proposed that employers provide PPE and
assure it is used by employees when required. OSHA's intent in the proposed rule was that
the employer provide personal equipment at no cost to the employee. PPE items included in
the proposed rule were gloves, leg protection, logging boots, safety helmets (hard hats),
eye or face protection, and respiratory protection.
Many commenters agreed that the personal protective equipment specified in the proposed
rule should be used. (Ex. 5-32, 5-42, 5-64, 9-2, 9-15, 9-16, 9-20). Some commenters urged
OSHA to require that the employer be responsible for providing all PPE (Ex. 9-3, 9-13).
They said that only if the employer provided the PPE could he assure its quality, design
and maintenance. However, many other commenters opposed requiring logging employers to
provide certain types of PPE, and their opposition focused primarily on logging boots (Ex.
5-11, 5-21, 5-32, 5-39, 5-45, 5-51, 5-55, 5-74 through 5-92, 9-2, 9-5, 9-15, 9-17, 9-18;
Tr. W1 74-75, 110, 177, OR 22, 79, 205, 262, 441, 533, 632, 701). Many commenters did not
give any reason why the employer should not be required to pay for PPE. Other commenters
contended primarily that employers would be financially burdened if they had to pay for
certain high cost PPE, such as individually-fitted and non-reusable logging boots, in an
industry that has such a high turnover rate. Other reasons for not requiring the employer
to provide certain types of PPE were the use of certain PPE by employees outside the
workplace, and industry custom.
Commenters noted that employee turnover in the logging industry is very high (Ex. 5-11,
5-21, 5-39, 5-49, 5-51, 5-55, 5-56, 5-63, 5-65, 5-74 through 5-92; Tr. W1 74-75, 110, 177,
OR 22, 79, 205, 262, 441, 533, 632, 701). Some commenters also indicated that employees
sometimes work only one or two weeks before leaving, often taking jobs at another logging
establishment (Ex. 5-55, 5-74 through 5-92; Tr. OR 78). These commenters argued that it
would be unfair to require employers to pay for expensive logging boots given the high
turnover rate of the logging industry. One commenter said:
[I]t frightens us to think that we might be providing a $300 pair of boots for a man
that's there a week (Tr. W1 74).
These commenters also contend that for some PPE, particularly logging boots, employers
might have to buy new PPE every time they hire a new employee. First, this would be
necessary because terminated employees do not return PPE they are issued (Ex. 5-45).
Second, these commenters argue that, unlike PPE such as ear muffs and head and leg
protection, logging boots are an item of PPE that cannot be reused by other employees
because of size and hygienic concerns (Ex. 5-29, 5-43, 5-44, 5-62, 5-74 through 5-92, 9-1,
9-15, 9-21; Tr. OR 78). Because logging boots cannot be worn by other employees, these
commenters said employers view logging boots as "personal clothing." In
addition, these commenters said that even if employees did return their logging boots, new
employees would be unwilling to wear used logging boots. One commenter said:
Suppose a new employee comes to work in the spring and finds he can't or doesn't want
to be a logger so he hands in his $200 boots with two weeks wear and tear and leaves. Is
the next guy going to accept "used" boots someone else wore? (Ex. 5-78)
The commenters said that requiring employers to pay for new PPE, primarily logging
boots, for each new employee would place a considerable financial burden on employers (Ex.
5-32, 5-39, 5-45, 9-15; Tr. W1 74, OR 78, 350). They said the cost would be particularly
burdensome for small establishments that comprise the vast majority of the logging
industry. Their basis for this conclusion is that logging boots are very costly, ranging
from $60 to $400 a pair (Ex. 5-45, 9-15; Tr. W1 74, OR 78, 350). In addition, they said
employees need two to three pairs of logging boots a year. The commenters, however, did
not present any financial or economic evidence as to the burden (e.g., effect on profits,
sales, etc.) on the industry as a whole, and particularly small employers as a group, of
providing logging boots.
One commenter said employers should not be required to pay for logging boots that are
used by employees away from workplace (Ex. 5-39). This commenter said employees take their
logging boots with them when they seek new employment (Ex. 5-39). He also said employees
use their logging boots for hunting and cutting their own wood (Ex. 5-39). In contrast,
the record shows that other types of PPE (e.g., leg protection, safety glasses and hearing
protection) remain with the employer, therefore, they are not used away from the workplace
(e.g., Ex. 5-32). In addition, one commenter said that these types of PPE are already
being provided by many establishments as standard industry practice (Ex. 5-32).
Finally, several commenters said that employers should not be required to pay for
certain PPE because the custom in the logging industry is that employees, especially
piece-rate workers, provide their own PPE, particularly logging boots (Ex. 5-11, 5-24,
5-45, 5-67, 5-74 through 5-92). These commenters said that piece-rate workers provide all
"tools of the trade," that includes some types of PPE. However, the record also
shows that some logging establishments do provide logging boots (Ex. 5-32; Tr. W1 177).
For example, one commenter said:
[T]he way we set it up is that when you're with us for one year we will buy you three
pair of boots and we will supply all safety equipment.
After you are with us for one month, we will supply safety chaps, the helmet, the whole
works. The first day you come on the job we will supply the helmet, a helmet with the eye
protection and the ear protection (Tr. W1 177).
Another commenter said:
In most instances items such as ear plugs, safety glasses, bucking chaps or any other
safety item required to work in a safe environment are provided (Ex. 5-32).
OSHA has carefully reviewed the evidence in the record and, for several reasons, has
decided in the final rule to delete the general requirement that the employer be required
to provide logging boots. However, the final rule does require that such boots be worn by
logging employees, and holds the employer responsible for assuring that the employee has
logging boots and wears them. As to the other PPE requirements specified in paragraph (d),
OSHA has retained the language of the pulpwood logging and proposed standards that the
employer provide such PPE at no cost to the employee.
The OSH Act imposes on employers the responsibility for compliance with standards and
for providing safe working conditions for employees. This responsibility has been
recognized in OSHA's personal protective equipment standards at 29 CFR 1910.132 through 29
CFR 1910.138. Section 1910.132(a) establishes the employer's obligation to provide and
maintain personal protective equipment whenever such equipment is necessary by reason of
the hazards in the workplace.
Section 1910.132(b) does recognize that in some limited circumstances that employees
may provide their own PPE. However, OSHA emphasizes that this practice is not the norm,
but rather an exception based on unusual or specific circumstances. In addition, section
1910.132(b) underscores the employer's continuing obligation to assure the adequacy and
maintenance of the PPE.
The record shows that special circumstances exist in the logging industry which may
make it appropriate for employees to provide their own logging boots. First, the record
shows that the logging industry is highly transient, and that logging boots, unlike other
PPE required by the final rule, are not the kind of PPE that can be reused. Logging boots
purchased to fit one employee may not fit the next employee. It is important that logging
boots fit properly or the boot may not provide the necessary protection. Therefore, based
on current turnover rates in the industry, employers would have to purchase non-reusable
logging boots costing $200 to $400 many times a year for newly-hired employees, even
though there is a significant likelihood that these employees will remain in the job for
only a short time.
Second, the record shows that logging employees tend to move from one logging
establishment to another, taking their "tools of the trade" with them,
particularly their logging boots. OSHA believes it may be appropriate in this situation to
allow employees to take their logging boots to the next place of employment, rather than
requiring the new employer to provide logging boots. Logging boots are both portable
(i.e., not limited in use to or maintained at a particular workplace, like respirators for
instance) and in most cases they fit only that particular employee therefore they cannot
be reused by other employees. The other items of PPE required by the final rule, such as
leg and head protection, tend to be both less personal to the employee and more connected
to the workplace itself, and can be readily used by other employees.
Third, there is evidence in the record that employees do use their logging boots away
from work. Employees come to and leave work wearing their logging boots, suggesting that
the boots are used away from the workplace. In addition, commenters cited specific
activities where logging boots are used away from the logging work site. The commenters
did not provide any comparable evidence that other items of PPE required by the final rule
are also used by employees away from the workplace.
Based on the above, OSHA has decided in the final rule not to require the employer to
provide logging boots. The Agency emphasizes that it is the totality of the special
circumstances in the logging industry that justify this determination. Of the reasons
discussed above, none of them standing alone would provide sufficient justification for
departing from the general requirement that employers provide PPE. Rather, it is the
combination of these reasons and special circumstances in the logging industry that make
it appropriate to allow employees to provide their own logging boots.
OSHA also emphasizes that regardless of who provides the logging boots, the final rule
makes the employer responsible for assuring that logging boots are used by the employee
and are maintained in a serviceable condition. In addition, in the final rule the employer
is responsible for assuring that logging boots are inspected before initial use during a
workshift. Attendant to this requirement, the employer is also responsible for assuring
that damaged and defective equipment is either repaired or replaced before work is
commenced.
With regard to the other items of PPE required by the final rule, OSHA does not believe
there is sufficient evidence in the record to justify a departure from OSHA's
long-established policy. Neither industry practice nor turnover rates compel the Agency to
relieve employers of the obligation to pay for the other items of PPE for loggers. Indeed,
evidence in the record shows that many employers are currently providing these other items
of PPE (Ex. 5-32, 9-15; Tr. W1 177). The record shows that, unlike logging boots, these
items of PPE tend to remain at the workplace and are amenable for use by other employees.
Further, there is no evidence in the record of an established practice of employees using
such PPE away from the workplace. Also, there is no evidence of established and uniform
industry practice of transporting such PPE from job to job. Therefore, in the final rule,
OSHA is requiring, except for logging boots, that the employer provide PPE at no cost to
the employee.
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