December 9, 2013

Mr. Donny Groh
International Union of Elevator Constructors
7442 Tidewater Drive
Norfolk, Virginia 23505

Dear Mr. Groh:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA) for a clarification of OSHA's Personal protective equipment standard, 29 CFR 1910.132. This constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence.

Your scenario and questions are paraphrased and our responses follow.

Scenario: One of the International Union of Elevator Constructors companies is claiming an exemption for paying for safety toe protective footwear. They are claiming an exemption for paying for safety toe protective footwear citing 29 CFR 1910.132(h)(2)¹ . The company has instituted the following policy:

Safety toe protective footwear must be worn at all times regardless of the presence of a hazard; and the safety toe protective footwear must meet the following requirements - leather uppers, oil resistant and non-skid soles, and American Society for Testing and Materials (ASTM) F2413-05 with an impact resistance rate of 75 and a compression resistance rate of 75. The employer is also requiring that the footwear be electric shock resistant.

Question #1: OSHA standard 29 CFR 1910.136(b)(1)² , states that protective footwear must comply with any of the following consensus standards: ASTM F-2413-2005, American National Standards Institute (ANSI) Z41-1999, or ANSI Z-41-1991. Does the employer's policy that protective footwear must comply with ASTM F-2413-2005 meet the requirement to be defined as specialty protective footwear?

Response #1: That criterion alone that the footwear must meet ASTM F-2413-2005 does not mean the footwear is of the type that must be provided at no cost to the employer under 29 CFR 1910.132(h). ASTM F-2413-2005 allows a minimum compression resistance rating of 50 and a minimum impact resistance of 50. Safety-toe protective footwear, including steel-toe shoes or boots, normally have a compression rating of 75 and an impact rating of 75.

Question #2: OSHA standard 29 CFR 1910.136(a) states: "The employer shall ensure that each affected employee uses protective footwear when working in areas where there is a danger of foot injuries due to falling or rolling objects, or objects piercing the sole, and where such employee's feet are exposed to electrical hazards." Does the employer's policy that the safety-toe protective footwear must be worn at all times regardless of the presence of a hazard meet the requirements to be defined as specialty protective footwear?

Response #2: It depends on the type of protective footwear the employer selects for employees to use. OSHA standard 29 CFR 1910.132(d)(1) states: "The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall:

1910.132(d)(1)(i)
Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment;

1910.132(d)(1)(ii)
Communicate selection decisions to each affected employee; and,

1910.132(d)(1)(iii)
Select PPE that properly fits each affected employee. Note: Non-mandatory Appendix B contains an example of procedures that would comply with the requirement for a hazard assessment."

The employer can require safety-toe footwear to be worn at all times if the employer has conducted a workplace hazard assessment and concluded that hazards are present, or are likely to be present that would require the employee to wear safety-toe footwear while on the job site. However, if the employer selects non-specialty safety-toe protective footwear that provides adequate protection against the hazards on the job, the footwear is not required to be provided by the employer at no cost to the employees, regardless of the policy that it be worn at all times.

Question #3: Does the employer's policy that the safety-toe protective footwear must have leather uppers, oil resistant and non-skid soles meet the requirements to be defined as specialty protective footwear?

Response #3: No. Non-specialty safety-toe protective footwear normally has leather uppers, oil resistant and non-skid soles.

Question #4: Does the combination of all of the requirements of the employer's safety-toe protective footwear policy meet the requirements to be defined as specialty protective footwear?

Response #4: As you are aware, OSHA standard 29 CFR 1910.132(h)(2) does not require employers to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or boots), provided that the employer permits such items to be worn off the job-site. Your employer requires that the safety-toe footwear must be worn at all times regardless of the presence of a hazard; must have a leather upper; must have oil resistant and non-skid soles, and must comply with ASTM 2413-05 with a impact resistance rating of 75 and an compression resistance rating of 75. This criterion alone would not mean that the footwear is specialty safety-toe footwear.

However, as mentioned in the response to Question #3, the employer must assess the workplace to determine which hazards necessitate the use of PPE. If that assessment determines that employees are exposed to electrical hazards and the employer selects electric shock resistant footwear to help protect employees from these hazards, then the employer must provide this footwear at no cost to the exposed employees if the footwear is rated to provide greater protection than is provided by a normal safety-toe shoe or boot against electrical hazards.

In addition, it should be noted that Section 18 of the Occupational Safety and Health Act of 1970 (the Act) encourages states to develop and operate their own job safety and health programs. There are currently 22 states and jurisdictions operating complete State Plans (covering both the private sector and state and local government employees) and five which cover state and local government employees only. Pursuant to the Act, State Plans are required to develop and enforce occupational safety and health standard that are at least as effective as the federal standards. While many State Plans adopt OSHA standards identically, your clients should check with the State Plans in which they conduct business to determine if those states have additional or more stringent requirements. For more information on OSHA-approved State Plans, please visit https://www.osha.gov/dcsp/osp/index.html

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry and Agriculture Enforcement at (202) 693-1850.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

¹ 1910.132(h)(2)
The employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, provided that the employer permits such items to be worn off the job-site.

² 1910.136(b)(1)
Protective footwear must comply with any of the following consensus standards:
1910.136(b)(1)(i)
ASTM F-2412-2005, "Standard Test Methods for Foot Protection," and ASTM F-2413-2005, "Standard Specification for Performance Requirements for Protective Footwear," which are incorporated by reference in § 1910.6;
1910.136(b)(1)(ii)
ANSI Z41-1999, "American National Standard for Personal Protection -- Protective Footwear," which is incorporated by reference in § 1910.6; or
1910.136(b)(1)(iii)
ANSI Z41-1991, "American National Standard for Personal Protection -- Protective Footwear," which is incorporated by reference in § 1910.6.
1910.136(b)(2)
Protective footwear that the employer demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards will be deemed to be in compliance with the requirements of this section.