Employer payment for climbing and positioning equipment

March 16, 2009

Mr. Steven T. Theis, MPhil, CSP, CUSA

Vice President Safety

MYR Group, Inc.

[Recipient address omitted]

Dear Mr. Theis:

Thank you for your January 29, 2008, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). Your letter has been referred to DEP's Office of General Industry Enforcement (GIE) for an answer regarding OSHA's recent Personal Protective Equipment (PPE) payment standard, 29 CFR 1910.132(h). Your question has been restated below.

Question: Do employers have to pay for body belts, positioning straps, and pole and tree climbers (gaffs or hooks) when used by qualified employees working on poles or towers?

Response: Yes. Body belts, positioning straps, and pole and tree climbers provide protection to employees from falls while climbing or performing other work. This personal climbing equipment[1], which is specifically required by §§1910.268(g), 1910.269(g)(2), and 1926.951(b), is PPE, and employers must pay for the equipment when the equipment is used to comply with an OSHA standard.

In addition, in your letter you stated, "OSHA has never required that qualified climbers, who have been appropriately trained, have any type of fall protection while climbing or changing locations on poles, towers or similar structures." This statement is not correct. For example, 29 CFR 1910.269(g)(2)(v) requires the following:

Fall arrest equipment, work positioning equipment, or travel restricting equipment shall be used by employees working at elevated locations more than 4 feet (1.2 m) above the ground on poles, towers, or similar structures if other fall protection has not been provided. Fall protection equipment is not required to be used by a qualified employee climbing or changing location on poles, towers, or similar structures, unless conditions, such as, but not limited to, ice, high winds, the design of the structure (for example, no provision for holding on with hands), or the presence of contaminants on the structure, could cause the employee to lose his or her grip or footing. [emphasis added].

Therefore, depending on the conditions or design of the structure, fall protection equipment may be required while the employee is climbing. This type of fall protection equipment is also required to be used once an employee reaches the work position.

Furthermore, you stated in your letter that this equipment is typically purchased by the apprentice prior to entering climbing school before he/she is employed by a particular employer. Please be advised that employees undergoing training are not considered "qualified employees" for the purposes of 29 CFR 1910.269. Unqualified employees (including trainees) are required to use fall protection any time they are more than 4 feet (1.2 m) above the ground.

If, as you state, an employee has purchased his or her own equipment while in an apprenticeship program, before they are hired by a particular employer, the employee may volunteer to use that equipment, and the employer is not required to reimburse the employee, as allowed under 29 CFR 1910.132(h)(6), which states:

Where an employee provides adequate protective equipment he or she owns pursuant to paragraph (b) of this section, the employer may allow the employee to use it and is not required to reimburse the employee for that equipment. The employer shall not require an employee to provide or pay for his or her own PPE, unless the PPE is excepted by paragraphs (h)(2) through (h)(5) of this section.

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. In addition, from time to time we update our guidance in response to new information. To keep apprised of such developments, you may consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the OSHA Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director

Directorate of Enforcement Programs

[1] Body belts, safety straps, lanyards, lifelines, body harnesses, fall arrest equipment, work positioning equipment, or travel restricting equipment are specifically identified in 29 CFR 1910.269(g) as personal protective equipment.