The Michigan Occupational Safety and Health Administration (MIOSHA) enforces workplace safety and health regulations under authority of the Michigan Occupational Safety and Health Act, Act 154 of 1974 as amended (MIOSH Act).

The MIOSHA Construction Safety and Health Division (CSHD) enforces regulations promulgated under authority of the MIOSH Act with regard to the construction industry.

As the governmental agency that enforces regulations related to use and provision of personal protective equipment (PPE) in the workplace, we felt compelled to respond to your article titled, “Who Pays for Personal Protective Equipment?” published in the Oct. 29, 2004 issue of the The Building Tradesman.

MIOSHA recognizes the importance of appropriate PPE to protect employees in the construction trades. Many of the rules and standards that we enforce require the use of PPE based on the hazard the employee may be exposed to. The standards address PPE of many kinds: hard hats, gloves, goggles, safety shoes, safety glasses, welding helmets and goggles, face shields, chemical protective equipment and clothing, and specialized equipment such as respiratory protection and fall protection.

MIOSHA Part 6, Personal Protective Equipment, addresses general requirements for PPE in construction. Rule 617(1) of Part 6 states:

“An employer shall provide to an employee, at no expense to the employee, the initial issue of personal protective equipment and replacement equipment necessary due to reasonable wear and tear required by this part or any other construction safety standard rules, unless specifically indicated otherwise in this part or any other construction safety standard rules, or unless a collective bargaining or other employer-employee agreement specifically requires employees to provide such equipment.”

The key phrase in Rule 617(1) is “at no expense to the employee” and leads MIOSHA to the interpretation that the employer is responsible for paying for necessary PPE.

Federal OSHA rule 1926.95(a), Criteria for personal protective equipment, states that PPE; “shall be provided, used and maintained in a sanitary and reliable condition wherever it is necessary,” but it does not include language that addresses who pays. However, OSHA like MIOSHA, has historically required the employer to pay for most required PPE.

The difference noted above in the comparable OSHA standard related to PPE, we believe, is at least part of the reason why, on March 31, 1999 OSHA issued proposed rules to clarify the issue of who pays. In the rulemaking, OSHA proposed regulatory language to clarify that, with only a few exceptions for specific types of PPE, the employer must pay for PPE provided.

OSHA proposed an exception from employer payment, in certain circumstances, for three specific kinds of PPE; safety-toe protective footwear, prescription safety eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v) [MIOSHA General Industry, Part 51, Rule 5125(1)].

OSHA also stated at that time that the proposed rule would not require employers to provide PPE where none had been required before. Instead, the proposed rule stipulated that the employer must pay for all required PPE, except in the limited cases stated above.

Since employers already paid for most of required PPE, the proposed rule would have shifted only minimal additional costs to the employer. Based on information collected at the time, OSHA stated that the rules would have imposed additional annualized costs of about $61.9 million across the affected industries. Public comments were heard on the rules, hearings were held and the record was closed on December 13, 1999.

On July 8, 2004 OSHA published a notice asking for further comment on one issue they believe requires further scrutiny. Specifically, the issue relates to whether or how a general requirement for employer payment for 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.”

In light of significant comments in the record, OSHA believes that further information is necessary to fully explore the issues concerning a possible limited exception for paying for PPE that is considered to be a “tool of the trade.”

The MIOSH Act states at Section 11(a) that it is the employers responsibility to: “Furnish to each employee, employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee.”

The MIOSH Act clearly places responsibility for a safe and healthy workplace on the employer. MIOSHA also believes that employer-provided and required PPE is more likely to provide the protection we feel is necessary, in that the quality, appropriateness and replacement of PPE may be compromised if the employee has to pay for the PPE.

Since the employer has ultimate control over the workplace, they are in a better position to control the types of and the condition of PPE that is used by employees.

For the reasons stated above, MIOSHA has typically viewed providing and paying for PPE to protect employees as a responsibility that falls to the employer. We understand that construction workers have typically provided their own steel-toed work boots [in accordance with MIOSHA Part 6, Rule 625(2)] and hard hats, although we would not discourage employers from paying for this necessary equipment.

As a “State Plan” program, MIOSHA is required to have rules and standards that are “at least as effective as” Federal OSHA. The MIOSHA program is monitored on a continual basis by Federal OSHA to ensure that we are meeting our obligations in this regard. At the other end of the spectrum, MIOSHA can make decisions regarding rules, standards or policies that we believe enhance safety and health for employees beyond the minimum requirements mandated by Federal OSHA.

We are not sure at this time what OSHA will conclude with regard to “tools of the trade” and employer-payment for PPE. We will however, be watching closely what federal OSHA does with regard to employer-payment for PPE. Our decision to adopt new policies will be based on whether or whether not such changes enhance protection for Michigan workers.