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These Boots Are Made for Working -- Content Courtesy of WECA Industry Partner Cook Brown, LLP

Thursday, March 12, 2020

By: Lisa V. Ryan of Cook Brown, LLP

Court Rules California Employers Must Pay for Employee Work Boots

According to a recent unpublished appellate court decision, California employers must pay for employee safety equipment, including steel-toed shoes. In UPS Ground Freight Inc. v. California Occupational Safety and Health Appeals Board (Cal. Ct. App., Feb. 6, 2020, No. B296657), UPS had challenged a Cal-OSHA ruling that it was required to pay for its employees' protective footwear. But the court upheld the Administrative law decision finding the employer had violated California Code of Regulations, title 8, section 3385, subdivision (a) by failing to pay for its employees' required protective footwear.

Background on Providing Protective Gear

The decision stemmed from a 2016 Cal/OSHA citation after an inspection found workers were wearing safety shoes that were not "provided" by the employer. It was undisputed that employers have a duty to require "appropriate foot protection" per Labor Code §3385. But the issue relates to an employer's duty to purchase footwear. UPS conceded that it required employees to wear steel-toed safety shoes to work at its facility. However, like many employers, it took the position that it did not have to pay for the footwear because there was no applicable law requiring such.

California Labor Code section 6401 simply requires employers to "furnish and use safety devices and safeguards ... reasonably adequate to render such employment and place of employment safe and healthful." Similarly, another state law states that employers must not fail to "provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe." (See Cal. Labor Code §6403.) The court held that the clear purpose of these laws is to "make the employer responsible for (1) ensuring that all safety devices and safeguards meet the standards of title 8 and (2) maintaining those devices and safeguards."

But many California employers had relied on a federal regulation that expressly exempts footwear from the requirement that employers purchase required safety gear. [See 29 C.F.R. § 1910.132 (h)(2), providing the employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots).]

Relying on a 1979 California Supreme Court ruling, holding that the employer had to pay for work gloves for its employees, Cal/OSHA took a contrary position stating that the federal regulation was not applicable to California employers. That case, Bendix Forest Products Corp. v. Division of Occupational Safety and Health, held that employers were required to purchase mittens for their logging employees to protect their hands.

On appeal, the court also cited to a 2011 Cal/OSHA decision, which based on the Bendix ruling held employers responsible for paying for all employee safety gear. "Where an employer requires an employee to wear safety shoes, they are 'reasonably necessary to protect the life, safety, and health of employees', and must be furnished or provided by the employer at employer's expense." (See Newman Flange & Fitting Company, Cal/OSHA App. 07-2581, Decision After Reconsideration (Oct. 5, 2011).)

Unfortunately, the court failed to acknowledge the practical distinction between providing work gloves versus providing footwear to all employees. The ruling further acknowledged that an "employee might, for example, desire a higher level of protection or find a different brand of equipment more comfortable. An employee's decision to pay for his or her own personal protective equipment does not relieve the employer of its responsibility to pay for that equipment."

What Should Employers Do?

While the decision is not currently published, this is a clear adoption of Cal-OSHA's enforcement position requiring California employers to pay for any safety gear, to include steel-toed boots, required to protect employees from hazards they're exposed to at work.

In order to "furnish or provide" such footwear at the employer's expense, employers should provide all employees work boots upon hire. But recognizing the unique nature of each employee's foot size and preference, many employers choose to provide employees a stipend to pay for the reasonable costs associated with purchasing required boots. Other employers, citing the costs and transient nature of its workforce, simply purchase a variety of work boot sizes and provide the employees access to such each workday. Clearly there is no "one size fits all" when it comes to employers' obligation to furnish required protective footwear.