Prescription safety glasses, employee waivers, and payment

May 14, 2007

Mr. Robert M. Sklar

Loss Control Specialist

Department of Risk Management

Pep Boys

[Recipient address omitted]

Dear Mr. Sklar:

Thank you for your letter of January 4, 2006, addressed to the Occupational Safety and Health Administration's (OSHA's) Control Correspondence Unit, requesting information about prescription protective eyewear requirements. Your letter was referred to the Occupational Safety and Health Administration's (OSHA's), Directorate of Enforcement Programs (DEP) for response. Your paraphrased scenario, questions, and our responses are provided below.

Scenario: Employees who wear prescription glasses wear a larger bulkier type of safety glasses over their prescription glasses.

Question 1: What liability does the employer have, either from an OSHA standpoint or Workers' Compensation standpoint, if an employee intentionally refuses to wear safety glasses?

Response 1: Under §1910.133(a)(3), Eye and face protection, the employer must ensure that each affected employee who wears prescription lenses while engaged in operations that involve eye hazards wears eye protection that incorporates the prescription in its design, or wears eye protection that can be worn over the prescription lenses without disturbing the proper position of the prescription lenses or the protective lenses. OSHA cannot determine liability under state workers' compensation law. Therefore, your question regarding workers' compensation liability should be directed to the workers' compensation programs offices in the states where the company does business.

Question 2: Can the employer reduce liability by having an employee sign a waiver that the employee is specifically refusing to utilize certain safety devices provided by the employer, such as safety glasses, back belts, etc.?

Response 2: While OSHA cannot determine liability under tort law or state workers' compensation law, employers have duties under the OSH Act from which they cannot be released by having their employees sign waivers. Employers must ensure that their employees are provided with and use appropriate eye protection and any other protective equipment that is required under the OSH Act.

Question 3: If an employee feels that wearing two sets of glasses is too cumbersome or simply a bother, does the employer have an obligation to pay for prescription safety glasses?

Response 3: Under 29 CFR 1910.132 and 1910.133, employers must provide and ensure the use of appropriate eye protection. The Occupational Safety and Health Review Commission has held that employers are not required to pay for PPE required by 1910.132. OSHA is engaged in rulemaking proceedings to address employer payment for personal protective equipment including prescription safety glasses. See 64 Federal Register 15402, March 31, 1999 and 69 Federal Register 412221, July 8, 2004. OSHA anticipates publishing a Final PPE Payment Rule in November of 2007.

Question 4: Is there any time the employer would be required to pay for prescription safety glasses?

Response 4: Please see response to Question 3 above.

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