Employer's Duty to Pay for Personal Protective Equipment (PPE)

 

Employer's Duty to Pay for Personal Protective Equipment (PPE) -  The Occupational Safety & Health Standards Board convened an advisory committee in 2012 to discuss whether there would be exceptions to the longstanding requirement established by California legal cases that employers must provide and pay for personal protective equipment - without exception. Through the efforts of labor and its allies, no changes in the law or regulations occurred.

Labor Code §6401 requires employers to "furnish and use safety devices and safeguards...".  Because the term "safety device" includes "any practicable method of mitigating or preventing" danger, this covers protective footwear, gloves, etc.  See Oakland Police Officers Assoc. v. City of Oakland (1973) 30 Cal.App. 3rd 96, 99.  [The Oakland case involved paying for the police offiicers' service revolvers.]   Labor Code §6403 also requires employers to "provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe."  The California Supreme Court ruled that the word "provide" and "furnish" means the employer both supplies and pays for the personal protective gear.  See Bendix Forest Products Corp. v. Division of Occupational Safety & Health (1979) 25 Cal. 3rd 465, 471-473.  [Bendix involved gloves and even though they could be used at home, they were for a specialized safety need.]

In 1994, Federal OSHA issued a memo clarifying its position that, in most cases, when a standard requied that an employer provide for personal protective equipment, it meant that the employer must pay for same. This issue remained contentious and in 2007, the AFL-CIO and some unions sued the Bush Administration's Department of Labor over its failure to issue a standard requiring employers to pay for PPE -- a standard which had been delayed for nearly eight years. Federal OSHA issued its rule at the end of 2007, effective May 2008. The rule, however, had exceptions for non-specialty safety shoes that workers are allowed to wear outside work; non-specialty prescription eyewear that employees may use outside work; everyday work clothes such as longsleeve shirts, long pants, etc. even if worn or damaged at work; protective ointments such as sun lotion; and if an employee loses or intentionally damages PPE provided by the employer, the employer does not have to pay for its replacement.

When Federal OSHA adopts a standard or program, the California OSHA program must be take steps to be as effective as Federal OSHA. The California OSH Standards Board proposed adoption of a regulation, Title 8 California Code of Regulations §3380.1, requiring the employer pay for PPE. The regulation initially contained exceptions despite staff for the California OSH Standards Board having noted that "existing case law requiring employers to pay for PPE is more effective than the federal standard, because California enforces the employer's duty to pay for safety devices and safeguards without the exceptions provided in the federal standard." The Division of Occupational Safety and Health, the enforcement arm of the California OSHA program, informed the California OSH Standards Board that it did not support the proposed rule which included exceptions to the employer's duty to pay for PPE. The Teamsters Public Affairs Council and numerous unions opposed the exceptions as did Worksafe and the law firm of Kazan McClain Lyons Greenwood & Harley. After several versions of the regulation had been heard by the Board, in October, 2011, it put off a further vote and referred the matter to an advisory committee that it would convene. Click here for the various proposals. 

Some employers argued they shouldn’t pay for such things as steel-toe boots or non-specialty prescription eyewear when the items could be worn off the jobsite.  They didn't want to pay for other things such as special clothing, parkas, rubber boots, raincoats (which are important safety gear for farm workers, food processing workers, etc.).  And they wanted an exemption for equipment that employees lose or intentionally damage.

Keep in mind that until relatively recently Federal OSHA didn't have a requirement that employers pay for ANY safety gear.  So what labor got on the federal level after years of struggle (and lawsuits) was definitely a significant improvement. 

HOWEVER, in California we've had better requirements all along. 

Kazan Law Office participated on the advisory committee in March, 2012, along with representatives of the California Labor Federation, AFL-CIO; the State Building & Construction Trades Council of California; Beeson Tayer & Bodine; Broad & Gusman; the California Rural Legal Assistance Foundation; California Rural Legal Assistance, Davis & Reno, Operating Engineers Local 12; United Auto Workers Local 5810, United Food & Commercial Workers, and Worksafe. The following legal references were discussed during the meeting.

The Labor Code requires employers to "furnish and use safety devices and safeguards...." (see Labor Code §6401).  Because the term "safety device" includes "any practicable method of mitigating or preventing" danger, this covers protective footwear, etc.  See Oakland Police Officers Assoc. v. City of Oakland (1973) 30 Cal.App. 3rd 96, 99.  [Oakland case involved paying for the police guns.] 

Labor Code §6403 also requires employers to "provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe."  The California Supreme Court ruled that the word "provide" and "furnish" means the employer both supplies and pays for the personal protective gear.  See Bendix Forest Products Corp. v. Division of Occupational Safety & Health (1979) 25 Cal. 3rd 465, 471-473.  [Bendix involved gloves, and even though gloves can be used at home, they were for a specialized safety need and the court ruled in favor of the workers.]

The Oakland Police Officers case also noted that Labor Code §6401 can't be interpretted as excluding certain types of equipment. So even if a regulation was issued to exclude certain equipment, it would not be proper.

After the meeting, the California OSH Standards Board reported that the "committee's clear consensus was that no rulemaking proposal should go forward." The staff so advised the Board. Thus no regulation will be issued and the existing California case law will continue to provide guidance for Cal/OSHA's enforcement of the employer's requirement to provide and pay for PPE.

Click here for information about how to file a complaint with Cal/OSHA if your employer refuses to pay for required Personal Protective Equipment.