August 25, 2004

Mr. Brad Milleson
Safety Director
Kellogg Company
One Kellogg Square
P.O. Box 3599
Battle Creek, MI 49016-3599

Dear Mr. Milleson:

Thank you for your April 2, 2004 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. You are requesting clarification on the financial obligation of the employer and employee concerning personal protective equipment (PPE), with reference to 29 CFR 1910.132, General Requirements.

You asked for clarification as to which party, the employer or the employee, is required to pay for PPE required under 29 CFR 1910.132. That section states that appropriate PPE must be provided when necessary because of workplace hazards. It does not expressly address the question of who pays for the required PPE.

In 1997, the Occupational Safety and Health Review Commission declined to accept OSHA's interpretation that, with certain exceptions, employers must pay for PPE required under section 1910.132. Secretary of Labor v. Union Tank Car Co., 18 OSH Cas. (BNA) 1067 (Rev. Comm'n 1997). Thereafter, OSHA initiated rulemaking proceedings to clarify who is required to pay for PPE in all situations where an OSHA standard requires the use of PPE. (See 64 Fed. Reg. 15402, March 31, 1999. The PPE payment rulemaking is ongoing.

29 CFR 1910.132 requires employers to provide PPE and ensure its use. However, at the present time, OSHA does not view this section as imposing an enforceable obligation on employers to pay for PPE. Therefore, employees must be afforded the protection of PPE, regardless of who pays.

Further, any final rule resulting from the PPE payment rulemaking may establish new or different requirements for employer payment for PPE under section 1910.132. In addition, the policy expressed in this letter applies only to PPE that is required by section 1910.132. In some OSHA standards (e.g., 29 CFR 1910.134) the employer is required to provide respirators at no cost to employees. Under these OSHA standards, the employer would be required to pay for the PPE.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs