B-157389, JUN 1, 1972, 51 COMP GEN 775

B-157389, JUN 1, 1972, 51 COMP GEN 775

CLOTHING AND PERSONAL FURNISHINGS - SPECIAL CLOTHING AND EQUIPMENT - HAZARDOUS OCCUPATIONS - SAFETY GLASSES THE HOLDING IN 42 COMP. GEN. 626 THAT IN THE ABSENCE OF A SHOWING THAT AN EMPLOYEE WAS UNABLE TO FURNISH A PRESCRIPTION FROM WHICH SAFETY GLASSES COULD BE MADE, OR THAT A PRESCRIPTION COULD NOT BE MADE FROM THE GLASSES AN EMPLOYEE NORMALLY WEARS, THE COST OF EYE REFRACTION EXAMINATIONS WAS NOT FOR PAYMENT BY THE GOVERNMENT DOES NOT PRECLUDE SUCH EXAMINATIONS WHERE THE EMPLOYEE HAS NOT PREVIOUSLY WORN GLASSES OR WHERE IT IS ADMINISTRATIVELY DETERMINED AN EXAMINATION EXISTING PRESCRIPTION IS INADEQUATE, AND THE GENERAL PRACTICE OF THE AIR FORCE OF PROVIDING REFRACTION EXAMINATIONS UNDER ITS OCCUPATIONAL VISION PROGRAM ESTABLISHED PURSUANT TO 5 U.S.C. 7903, AND 29 U.S.C. 668(A) SHOULD BE DISCONTINUED AND AFR 160-112 AMENDED TO CLARIFY THAT REFRACTION EXAMINATIONS MAY BE AUTHORIZED AT GOVERNMENT EXPENSE ONLY WHERE THE EMPLOYEE HAD PREVIOUSLY NOT WORN GLASSES OR HIS PRESENT PRESCRIPTION OR GLASSES ARE INADEQUATE.

TO THE SECRETARY OF THE AIR FORCE, JUNE 1, 1972:

REFERENCE IS MADE TO OUR LETTER OF JANUARY 21, 1972, B-157389, TO YOU CONCERNING THAT ELEMENT OF THE AIR FORCE OCCUPATIONAL VISION PROGRAM, AS SET FORTH IN AFR 160-112 (12 JUNE 1961, WITH CHANGE 1 DATED 22 JUNE 1967), WHICH AUTHORIZES EYE REFRACTION EXAMINATIONS FOR CIVILIAN EMPLOYEES WHO ARE TO BE SUPPLIED WITH PRESCRIPTION SAFETY EYEWEAR. UNDER PARAGRAPH 3 OF THE REGULATION SUCH EXAMINATIONS ARE PROVIDED, WITHOUT COST TO THE EMPLOYEE, THROUGH GOVERNMENT MEDICAL FACILITIES OR BY CONTRACT WITH PRIVATE REFRACTIONISTS. WE NOTED THAT UNDER PARAGRAPH 14B AN EXISTING PRESCRIPTION FOR CORRECTIVE LENSES MAY BE ACCEPTED IN LIEU OF A NEW REFRACTION EXAMINATION IF MINIMUM VISUAL STANDARDS ARE MET BY THAT PRESCRIPTION. HOWEVER, WE INDICATED OUR IMPRESSION THAT THE GENERAL PRACTICE UNDER AFR 160-112 IS TO PROVIDE SUCH EXAMINATIONS IN ALL CASES, WHILE ACCEPTANCE OF AN EXISTING PRESCRIPTION IS CONSIDERED ONLY AT THE REQUEST OF AN EMPLOYEE.

WE EXPRESSED RESERVATIONS CONCERNING THE PROPRIETY OF THE AIR FORCE PRACTICE IN LIGHT OF OUR DECISION AT 42 COMP. GEN. 626 (1963), WHICH APPROVED THE EXPENDITURE OF APPROPRIATED FUNDS TO PURCHASE PRESCRIPTION SAFETY EYEWEAR BUT DECLINED TO EXTEND SUCH AUTHORITY TO PAYMENT OF EYE REFRACTION EXAMINATIONS IN CONNECTION THEREWITH ABSENT A SHOWING THAT AN ADEQUATE PRESCRIPTION COULD NOT BE OTHERWISE OBTAINED. WE INDICATED THAT THE DEPARTMENT OF THE ARMY IN ITS REGULATIONS (AR 40-5) TREATS EYE REFRACTION EXAMINATIONS FOR SAFETY GLASSES AS THE RESPONSIBILITY OF THE EMPLOYEE. IN VIEW OF THE FOREGOING, WE REQUESTED A RESPONSE TO THE FOLLOWING QUESTIONS:

1. DOES THE AIR FORCE FOLLOW A GENERAL PRACTICE OF PROVIDING REFRACTION EXAMINATIONS FOR CIVILIAN EMPLOYEES WHO REQUIRE PRESCRIPTION SAFETY EYEWEAR?

2. IF SO, HOW IS THIS PRACTICE JUSTIFIED, PARTICULARLY IN VIEW OF OUR DECISION AT 42 COMP. GEN. 626?

3. IS THERE ANY REASON WHY THE AIR FORCE PROGRAM SHOULD NOT BE MODIFIED BY MAKING APPLICATION OF PARAGRAPH 14B OF AFR 160-112 MANDATORY?

4. ARE THERE ANY CIRCUMSTANCES IN WHICH APPLICATION OF PARAGRAPH 14B WOULD NOT SERVE TO RENDER THE PROVISION OF REFRACTION EXAMINATIONS UNNECESSARY?

BY LETTER DATED MARCH 24, 1972, FROM WALTER A. WILLSON, OFFICE OF THE GENERAL COUNSEL, DEPARTMENT OF THE AIR FORCE, WE ARE ADVISED THAT THE AIR FORCE DOES GENERALLY FURNISH REFRACTION EXAMINATIONS UNDER THE CIRCUMSTANCES DESCRIBED HEREIN. THE BASIC POSITION OF AIR FORCE IS STATED BY MR. WILLSON AS FOLLOWS:

*** THE AIR FORCE PRACTICE RESTS, IN THE FINAL ANALYSIS, ON THE NEED TO OBTAIN REASONABLE ASSURANCE THAT PRESCRIPTION SAFETY GLASSES BEING PROVIDED AT GOVERNMENT EXPENSE ARE IN FACT FULLY SUITABLE FOR THEIR INTENDED PURPOSE. THE SURGEON GENERAL OF THE AIR FORCE HAS DETERMINED THAT, IN THE ABSENCE OF SUCH ASSURANCE, ACCEPTANCE OF PREEXISTING PRESCRIPTIONS IS INADVISABLE FROM BOTH A MEDICAL AS WELL AS A SAFETY STANDPOINT. IT IS HIS PROFESSIONAL JUDGMENT THAT THE RELATIVELY SMALL ADDITIONAL EXPENSE OF A CURRENT EXAMINATION IS MORE THAN OFFSET BY THE ADDITIONAL DEGREE OF PROTECTION AGAINST THE DANGERS INHERENT IN EYE HAZARDOUS ENVIRONMENTS. WERE THIS REQUIREMENT TO BE RELAXED, THERE WOULD BE A SIGNIFICANT INCREASE IN THE RISK OF VISUAL IMPAIRMENT, DAMAGE TO GOVERNMENT PROPERTY AND EVEN PHYSICAL INJURY TO THE EMPLOYEE AND HIS CO- WORKERS. *** .

MR. WILLSON DISTINGUISHES OUR DECISION AT 42 COMP. GEN. 626 ON THE BASIS THAT THERE WAS NO INDICATION THEREIN OF AN ADMINISTRATIVE DETERMINATION THAT CONSIDERATIONS OF SAFETY AND EMPLOYEE WELL-BEING REQUIRED THAT PRESCRIPTION SAFETY EYEWEAR BE GROUND ONLY FROM VERY RECENT PRESCRIPTIONS, OR THAT A DEGREE OF CONTROL OVER EXAMINATIONS BE RETAINED. ON THE OTHER HAND, IT IS STATED THAT THE DEPARTMENT OF THE AIR FORCE HAD MADE SUCH DETERMINATIONS WITH RESPECT TO ITS OCCUPATIONAL VISION PROGRAM. FINALLY, CONCERNING THE POSSIBILITY OF MAKING MANDATORY PARAGRAPH 14B OF AFR 160- 112, IT IS STATED IN THE ENCLOSURE TO MR. WILLSON'S LETTER THAT:

THE DEPARTMENT OF THE AIR FORCE WOULD PREFER TO AVOID ACCEPTANCE OF "OUTSIDE" PRESCRIPTIONS AS A GENERAL RULE. IT IS NOT ADVISABLE FROM A MEDICAL OR SAFETY STANDPOINT TO UTILIZE A PRESCRIPTION WHICH A VISUALLY DEFICIENT WORKER HAS OBTAINED IN THE PAST, WHEN EQUIPPING HIM WITH PRESCRIPTION SAFETY GLASSES FOR EYE-HAZARDOUS WORK. THE AIR FORCE HAS AN OBLIGATION TO PROTECT THE INTEREST OF THE GOVERNMENT AND OF FELLOW WORKERS OF THE EMPLOYEE INVOLVED, AS WELL AS THOSE OF THE EMPLOYEE HIMSELF. THIS OBLIGATION CANNOT BE FULFILLED UNLESS ALL MEASURES REASONABLY AVAILABLE ARE UTILIZED TO ASSURE THAT THE VISUALLY DEFICIENT EMPLOYEE IN AN EYE- HAZARDOUS JOB IS NOT A HAZARD TO HIMSELF OR HIS FELLOW WORKERS AND IS NOT FURTHER IMPAIRING HIS VISION. TO THIS END, THE REGULATION PRESCRIBES INITIAL EYE EXAMINATIONS AND PERIODIC EYE EXAMINATIONS AND PERMITS THE AIR FORCE A DEGREE OF CONTROL OVER THE CONDUCT OF THE EXAMINATION.

OUR DECISION AT 42 COMP. GEN. 626 APPROVING THE PROVISION OF PRESCRIPTION SAFETY EYEWEAR FOR THE PROTECTION OF VISUALLY DEFICIENT EMPLOYEES IN EYE- HAZARDOUS JOBS, WAS BASED UPON SECTION 13 OF THE ACT APPROVED AUGUST 2, 1946, CH. 744, 60 STAT. 809, REENACTED AND CODIFIED AT 5 U.S.C. 7903, WHICH STATES IN PART:

SEC 7903. PROTECTIVE CLOTHING AND EQUIPMENT.

APPROPRIATIONS AVAILABLE FOR THE PROCUREMENT OF SUPPLIES AND MATERIAL OR EQUIPMENT ARE AVAILABLE FOR THE PURCHASE AND MAINTENANCE OF SPECIAL CLOTHING AND EQUIPMENT FOR THE PROTECTION OF PERSONNEL IN THE PERFORMANCE OF THEIR ASSIGNED TASKS. *** .

IN ADDITION, SECTION 19(A) OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, APPROVED DECEMBER 29, 1970, PUBLIC LAW 91-596, 84 STAT. 1609, 29 U.S.C. 668(A), REQUIRES EACH FEDERAL AGENCY TO ESTABLISH AND MAINTAIN AN EFFECTIVE AND COMPREHENSIVE OCCUPATIONAL SAFETY AND HEALTH PROGRAM. SEE ALSO, 5 U.S.C. 7902. THUS THE AUTHORITY OF THE AIR FORCE TO SUPPLY PRESCRIPTION SAFETY EYEWEAR WHERE NECESSARY FOR THE PROTECTION OF EMPLOYEES IS UNQUESTIONED.

AS TO THE COST OF THE EYE REFRACTION EXAMINATIONS, IN 42 COMP. GEN. 626 WE HELD, IN EFFECT, THAT IN THE ABSENCE OF A SHOWING THAT THE EMPLOYEE INVOLVED WAS UNABLE TO FURNISH A PRESCRIPTION FROM WHICH PRESCRIPTION GROUND SAFETY GLASSES COULD BE MADE, OR THAT A PRESCRIPTION COULD NOT BE MADE FROM THE EMPLOYEE'S PRESENT GLASSES (I.E., FROM THE GLASSES HE NORMALLY WEARS), THE COST OF EYE REFRACTION EXAMINATIONS WAS NOT FOR PAYMENT BY THE GOVERNMENT.

OUR HOLDING IN THAT CASE WAS NOT INTENDED TO PRECLUDE EYE REFRACTION EXAMINATIONS AT GOVERNMENT EXPENSE FOR VISUALLY DEFICIENT EMPLOYEES REQUIRING PRESCRIPTION SAFETY GLASSES IN THOSE INSTANCES WHERE THE EMPLOYEE INVOLVED HAD NOT PREVIOUSLY WORN GLASSES OR WHERE INCIDENT TO A VISUAL SURVEY AN EMPLOYEE'S EXISTING PRESCRIPTION WAS ADMINISTRATIVELY DETERMINED TO BE INADEQUATE (I.E., VISUALLY DEFICIENT) 42 COMP. GEN. 626 IS CLARIFIED ACCORDINGLY. HOWEVER, TO THE EXTENT THAT AR-160-112 AUTHORIZES EYE REFRACTION EXAMINATIONS AT GOVERNMENT EXPENSE WITHOUT REQUIRING AN ADMINISTRATIVE DETERMINATION AS TO THE ADEQUACY OF THE EMPLOYEE'S EXISTING PRESCRIPTION (OR GLASSES), IT IS OUR VIEW THAT THE REGULATION IN QUESTION SHOULD BE AMENDED SO AS TO MAKE CLEAR THAT EYE REFRACTION EXAMINATIONS FOR PRESCRIPTION SAFETY GLASSES MAY BE AUTHORIZED AT GOVERNMENT EXPENSE ONLY IN THOSE INSTANCES WHERE THE EMPLOYEE INVOLVED HAD NOT PREVIOUSLY WORN GLASSES OR WHERE IT IS ADMINISTRATIVELY DETERMINED THAT HIS PRESENT PRESCRIPTION (OR GLASSES) IS INADEQUATE.