Employer's Duty to Pay for Personal Protective Equipment (PPE)
PLEASE consider participating on the Advisory Committee that is being formed regarding an employer's responsibility to Pay for Personal Protective Equipment (respirators, goggles, safety shoes, etc.)
The advisory committee will be looking at possible exceptions to the requirement that employers pay for personal protective equipment (PPE).
In October, the Board put off a vote on a proposed regulation that would have complied with rulings of the California Supreme Court regarding the employer's duty to pay. The proposed regulation is Title 8 CCR §3380.1. Click here for the various proposals.
Some employers are arguing they shouldn’t pay for such things as steel-toe boots or non-specialty prescription eyewear when the items can be worn off the jobsite. They don'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 want an exemption for equipment that employees lose or intentionally damage.
These exemptions were in the first version of the proposed regulation which was based on the Federal OSHA regulation. BUT keep in mind that until 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.
On behalf of the Kazan Law Office, I objected to the exceptions (along with others who also objected) arguing that the Board cannot issue a regulation that is in "conflict with the law" per the Administrative Procedures Act. That resulted in a subsequent proposal without the exceptions. And it was that last proposal that was not acted on at the October Board 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.