A final standard on employer payment for PPE was almost completed by the end of the Clinton administration. Under the Bush administration, the rule had gone nowhere until a July 8 notice in the Federal Register reopening the rulemaking record and requesting information on whether some PPE should be considered "tools of the trade."
As of early September, the overwhelming majority of the 102 docket entries were from employers or their trade groups urging OSHA to exempt them from paying for PPE regarded as tools of the trade (TOTT). Among employer advocates for the exemption, construction firms and electrical contractors are particularly well represented.
Only a relative handful of responses from individuals, labor unions and safety organizations argued for the contrary position.
How to define TOTT was one of the questions OSHA asked, and responses varied. One of the longest and most sophisticated answers, from the Society for Human Resource Management, argued the term should be defined as "boots, clothing and other garments that touch the skin or objects worn in an employee's ears or mouth." In addition, the society wanted to include devices selected according to size or fit for a particular individual, or that could lose its effectiveness if adjusted frequently to different users.
Arguments cited by employers to support a TOTT exemption include:
- Due to the transient nature of many craft activities, full employer payment for PPE would subject the system to abuse as workers move from one employer to another;
- Exempting employers from this cost and imposing it upon workers provides an incentive for employees to use and care for PPE properly and would allow employers to allocate the cost of PPE misuse to workers;
- For reasons of hygiene or fit, once a worker uses some types of PPE, it cannot be shared among employees and so should belong to a single worker.
The AFL-CIO, and the International Safety Equipment Association (ISEA) completely rejected the notion that PPE might be considered a tool of the trade. "A tool enables a worker to perform a task," argued ISEA. "PPE protects the worker while using the tool."
Opponents also pointed out that a TOTT category would be difficult to define and enforce.
The AFL-CIO cited OSHA's own figures that the proposed PPE rule requiring employers to pay for virtually all forms of PPE would prevent more than 47,000 injuries annually, saving employers an estimated three dollars in injury and illness costs for every dollar invested in PPE. The existing rulemaking record indicates that worker health and safety suffer when workers pay for their own PPE, because they often cannot afford it, or use their PPE beyond its effective life.
The American Society of Safety Engineers weighed in against having workers buy PPE, arguing that "employers, through the work of on-staff safety professionals, are in the best position to identify and select the correct equipment and to maintain it properly."
OSHA is currently evaluating the responses to its TOTT query and has not said when it will make a final decision. Because virtually all the comments cited by OSHA in the Federal Register notice as grounds for reopening the rulemaking record are from employers, opponents of the TOTT exemption worry that the agency is leaning toward the decision favored by so many companies.