• Sasha Struthers

California Employers To Pay For Employees' Footwear- Cal/OSHA Ruling Against UPS Upheld

On February 6, 2020 the Court of Appeals upheld a Cal/OSHA ruling requiring UPS to pay for it employee's required protective footwear. You can read the ruling here.

Required Footwear

California Code of Regulations, Title 8, section 3385(a)- "Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, which may cause injuries or who are required to work in abnormally wet locations."

Footwear Specifications

Subsection(c)(2)- "Protective footwear purchased on or before January 26, 2007 shall meet the requirements of either the American National Standard for Personal Protection -Protective Footwear, American National Standards Institute (ANSI) Z41-1999, or the American Society for Testing and Materials (ASTM) F2412-05, Standard Test Methods for Foot Protection and ASTM F 2413-05, Standard Specification for Performance Requirements for Foot Protection which are hereby incorporated by reference."

Employer Must Pay for Required Safety Devices

Labor Code Section 6401- "Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful."

The term "furnish" is understood to mean the employer is required to pay for the required protective gear. While this article focuses on footwear in light of the Court of Appeals ruling, employers are required to pay for all required safety devices, such as protective eyewear and hand-wear.

I ran into this very issue with a client who was required to implement a Protective Footwear Program for their 250 warehouse employees across several distribution centers. While the employees were wearing the required footwear, Cal/OSHA found it a violation that the employees paid for the footwear themselves. The Protective Footwear Program I created reimbursed employees for the Cal/OSHA approved footwear they purchased for their work, upon the employee providing proof of purchase. This approached was best suited for the client.

An alternative approach would be to take the shoe sizes of the employees and purchase the footwear for them.

Next Steps

+ Create- Footwear Protection Program (reimbursement v. purchase)

+ Implement- Inform all employees and begin the process

+ Document- Keep track of all purchases with employee personnel files

Construction and shipping are the most common businesses subject to these laws. Employees are regularly interacting with heavy machinery, equipment and material, such as forklifts and pallet jacks. It doesn't matter if the employees are actually operating the equipment, if their position requires them to be near the equipment then they must be wearing the correct footwear.

Employers must take this requirement seriously. Violation of the Cal/OSHA provisions, which are must stricter than federal OSHA, can lead to severe penalties for non-compliance. Employers are required by law to pay for employee protective equipment. Further, its in the best interest of employee health and safety. Employee injury is costly not only in terms of finances but in lost productivity.

The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.