Payment for required ski helmets

June 17, 2011

Matthew Speier

Professional Advisor

Southern New York Region of National Ski Patrol

[Recipient address omitted]

Dear Mr. Speier:

Thank you for your September 1, 2010, letter to the Occupational Safety and Health Administration (OSHA). Your letter has been referred to 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 question not delineated within your original correspondence.

Background: Last year, the mountain management at Belleayre Mountain Ski Center mandated the use of helmets for all on-snow employees (ski patrollers and ski instructors) as well as volunteer patrollers and instructors. Although the helmets are now required, management has not provided either helmets or a stipend towards the purchase of a helmet.

Question: Is the employer required to provide helmets to its employees or reimburse them for their purchase?

Response: OSHA does not have a specific policy regarding ski helmets. 29 CFR 1910.132(a) states that protective equipment, including personal protective equipment (PPE) for the head, shall be provided, used, and maintained "wherever it is necessary by reason of hazards of processes or environment...encountered in a manner capable of causing injury or impairment." Belleayre management appears to have concluded that these employees are at risk for head injuries caused by crashing, falling, and potentially hitting their heads against hard-packed snow, ice, trees, or other obstacles. Belleayre has therefore designated ski helmets as a means of protection. Section 1910.132(h), Payment for Protective Equipment, requires the employer to provide at no cost to the employees the protective equipment used to comply with section 1910.132. Thus, with Belleayre management having determined that helmets are necessary for protection, it must provide the helmets to its on-snow employees. Belleayre is free to choose how it will provide these helmets. For example, Belleayre can purchase a supply of helmets and distribute them to employees at the beginning of every work shift or ski season. It can also give employees allowances, vouchers, or reimbursements for purchasing helmets.

If the employee volunteers to use a helmet he or she already owns, the employer is not required to reimburse the employee for the cost of the helmet (§1910.132(h)(6)). However, the employer is responsible for assuring the helmet's adequacy and proper maintenance (§1910.132(b) - Employee-owned Equipment).

Regarding volunteer patrollers and instructors, OSHA's regulations apply only to employees, not volunteers. However, depending on the facts of the relationship between Belleayre management and its volunteer ski patrollers and instructors, an employer-employee relationship may be determined to exist. If such a relationship exists, then management must provide to this group whatever PPE it provides to its employees.

You also mention that the ski area is operated by the New York State Department of Environmental Conservation. It is unclear from the information you have provided whether the employees at the Belleayre Mountain Ski Center are public employees. The New York State Department of Labor's Public Employee Safety and Health (PESH) Program oversees the workplace protection of public employees at the State and local level in the State of New York. Under this plan, the PESH program promulgates and enforces, under authority of State law, occupational safety and health standards that are at least as effective as those of Federal OSHA, and is obligated to enforce them as effectively as Federal OSHA does (§18(c) of the 1970 Occupational Safety and Health Act, 29 U.S.C. §667(c)). If Belleayre employees are employees of the New York State Department of Environmental Conservation or another state or local agency, your question should be directed to the PESH Program. The contact information for the New York State PESH Program is:

Normand Labbe, Program Manager

New York Public Employee Safety and Health Program

State Office Campus Building 12, Room 158

Albany, New York 12240

Phone (518) 457-1263

Fax (518) 457-5545

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 Enforcement at (202)693-1850.

Sincerely,

Thomas Galassi, Director

Directorate of Enforcement Programs