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Text from the OSHA Logging Preamble 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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