Imagine this scenario: You’re working in your office one day when the CFO comes in, closes the door and sits down. He tells you he’s got a great idea on how the company can save some money. His brilliant idea: Require workers to pay for their own PPE, including hardhats, gloves, safety shoes, respirators and the like. He asks you what you think. How would you respond?
Given the current state of the economy, it isn’t all that far-fetched that companies might try to shift the costs of PPE to workers to save money. Of course, everybody knows that the law requires employers to pay for their workers’ PPE. Or does it? Clearly, employers are responsible for ensuring that their workers use the PPE necessary to protect them from the hazards of their jobs. But it doesn’t necessarily follow that employers are also obligated to pay for that equipment.
The question of whether employers must pay for workers’ PPE is, in fact, often a complicated issue that depends to a large degree on the jurisdiction and the kind of equipment involved. We’ll explain what the OHS laws say—and don’t say—about who pays for PPE. We’ll also tell you what factors to consider when composing your reply to your CFO if he suggests making workers pay for their own PPE. And there’s a chart that tells you who each jurisdiction requires to pay for PPE.
ONLINE RESOURCE: Click here to find a paper by the International Safety Equipment Association that will help you make the business case to your CFO for investing in PPE.
WHAT THE LAW SAYS
Every jurisdiction’s OHS laws require workers to use the appropriate kind of PPE when they do certain jobs or are exposed to certain hazards. But although the laws establish the PPE required, they don’t always clearly address who must provide—much less pay for—that PPE. The jurisdictions fall into two basic categories:
The 5 Jurisdictions that Specify Who Pays for PPE
The OHS laws in five jurisdictions—BC, MB, QC, SK and YT—spell out who must pay for which kinds of PPE:
The 9 Jurisdictions that Don’t Specify Who Pays for PPE
In the remaining nine jurisdictions—Fed, AB, NB, NL, NT, NS, NU, ON and PEI—the OHS laws don’t specifically address who pays for PPE. In general, these jurisdictions all require employers to ensure that workers wear and use PPE when required by law. In addition, they typically require employers to provide all or at least some kinds of PPE under certain circumstances. For example, in New Brunswick, where the regulations require workers to use PPE, the law states that employers shall provide the PPE required. But does the word “provide” imply that employers must also pay for PPE? Or may employers charge workers for the PPE they provide?
Until recently, the meaning of the word “provide” in this context was also a source of controversy in the US. Many US health, safety, maritime and construction standards require employers to provide their workers with PPE necessary to protect them from job-related injuries, illnesses and fatalities. But these standards don’t specify that the employer is to provide such PPE at no cost to the worker. The federal Occupational Safety and Health Administration settled the issue for good on Feb. 13, 2008, when a final rule took effect clarifying that employers must pay for required PPE they provide, with exceptions for specific items.
Unfortunately, in Canada, the question of whether the employer’s duty to provide PPE includes the duty to pay for it still isn’t clear. However, there are some sources of guidance on whether employers must pay for the PPE they’re required to provide:
Government guidelines. To clarify what the word “provide” means in the context of PPE, some jurisdictions have issued guidelines or statements in guides. For example:
Arbitration decisions. Unfortunately, we couldn’t find any court decisions that specifically discuss whether an employer’s duty to “provide” includes the duty to pay for PPE. But the Insider did find a few arbitration and regulatory decisions that revolved around how to interpret the word “provide.”
Example #1: Under the collective agreement, an Alberta employer had to “furnish” or “provide” certain items of clothing for workers. The employer tried to require workers to pay for new uniforms and the union protested. The arbitrator concluded that it made no sense for the employer’s duty to furnish or provide these items to be limited to merely “assembling or getting these articles together” for the workers but not to paying for them. It added that the ordinary meaning of the words “furnish” and “provide” “certainly includes the concept of bearing the cost of the items furnished or provided.” Thus, the employer couldn’t require the workers to pay for the uniforms [Megley Foods Inc. v. United Food & Commercial Workers Union, Local 312A (New Uniforms Grievance)].
Example #2: An Ontario safety inspector ordered a company to provide and pay for protective gloves for workers in the furnace area. The employer appealed the decision to the Director of the MOL. The Director noted that the regulation in question specifically required the employer to “provide” PPE for workers exposed to the hazard of being burned by molten materials. The workers in the furnace area were exposed to this hazard. Thus, the employer had to provide the protective gloves. The Director added that the common understanding of the term “provide,” which includes paying for, should prevail. Therefore, the party required to provide the PPE—in this case, the employer—must bear the cost [Inco Ltd. v. Ontario MOL].
Bottom line: It’s likely that regulatory officials, arbitrators, courts and other decision-making bodies will follow the same logic as these decisions and conclude that the duty to provide PPE includes the duty to pay for it.
Insider Says: In unionized workplaces, determining who pays for PPE is less problematic because most collective agreements spell out exactly who pays for which items of PPE.
HOW TO REPLY
Let’s return to your CFO’s hypothetical budget-cutting proposal. How you should respond to the idea of making workers pay for their own PPE depends on several factors:
Factor #1: What’s Your Jurisdiction?
If your workplace is in Québec, your response to your CFO is very easy: “No, we can’t make workers pay for their own PPE because we’re required by law to pay for all PPE.” And if your workplace is in one of the other four jurisdictions that require employers to pay for most PPE, your response to your CFO is still pretty straight forward: “We can’t make workers pay for PPE except for those few items that the law requires workers to provide for themselves, such as hardhats or safety footwear.”
But if your workplace is in any of the other jurisdictions that may require employers to provide some but not all PPE without specifying who pays for it, formulating the appropriate answer isn’t as simple. To determine how to respond, you’ll have to consider three additional factors:
Factor #2: Is Your Duty to Provide Or Ensure Use of PPE?
If your company is in one of the nine jurisdictions that doesn’t spell out who pays for PPE, the analysis of its legal obligation depends on whether it must provide that PPE or just ensure that workers use it.
Duty to provide. If the OHS law in your jurisdiction requires employers to provide certain types of PPE, the safest course—from a liability standpoint—is to assume that the company must also pay for that PPE. In some jurisdictions, such as Fed and NB, employers must provide all required PPE. For example, in New Brunswick, where regulations require workers to use particular kinds of PPE, the employer must provide the PPE and ensure that workers are instructed and trained in its proper use and care. And in Ontario, employers are required “to ensure” that PPE is provided. The MOL has interpreted this language coupled with the General Duty Clause, i.e., the part of the OHS Act that requires employers to take measures to protect workers against known hazards, to mean that employers should provide PPE. Thus, in these jurisdictions, your response to the CFO should be something like, “By law, we’re required to provide PPE to workers and paying for that PPE is part of the duty.”
Duty to ensure use. But in several jurisdictions, such as AB, NL, NT, NS, NU and PEI, employers are generally required only to ensure that workers wear and use PPE. For example, in Alberta, if a hazard assessment indicates a need for PPE, employers must ensure that workers properly use and wear such PPE. Thus, in general, an employer isn’t required to provide or pay for PPE in these jurisdictions. So you may be able to require workers to pay for such PPE.
Caveat: Even in these jurisdictions, employers may be required to provide—and thus pay for—a few types of PPE, such as respiratory equipment and personal flotation devices. Therefore, if your company is located in one of these jurisdictions, your answer to the CFO should be along the lines of, “The items of PPE the law requires us to provide, like respiratory equipment, we have to pay for. But we may be able to make workers buy or reimburse us for other items of PPE that we only have a duty to ensure they wear and use, such as protective footwear.”
Factor #3: Are Workers Unionized?
Of course, the first place you should check when trying to determine if your company can require workers to pay for PPE is the OHS law. But that’s not the only place you must check. If the workers in your company are unionized, you also need to check the terms of the collective agreement as it likely addresses who pays for PPE.
Of course, collective agreements must comply with the law. For example, if a company is in a jurisdiction that requires the employer to pay for all PPE, the collective agreement can’t shift that burden to the workers. The union would be very unlikely to agree to such a shift in any case. But a collective agreement can provide additional protections or benefits to workers than those provided in the law. So in a jurisdiction where employers simply have to ensure that workers use most PPE, a collective agreement can require an employer to pay for some or all of that PPE. The burden of paying for PPE is often shared by the employer and workers in the collective agreement with, say, the employer paying for certain items and giving workers a stipend to use towards payment of other types of PPE, such as safety footwear.
Bottom line: If your workplace is subject to a collective agreement, tell the CFO, “We’ll have to look at the terms of the collective agreement to see how payment for PPE is handled before we try to make workers pay for their own PPE.”
ONLINE RESOURCE: Click here to find a link to a paper by the International Safety Equipment Association that will help you make the business case to your CFO for investing in PPE.
Conclusion
As safety coordinator, your job is to ensure that workers are protected when performing their jobs and ensuring that each worker has and uses appropriate PPE is one of the key protections under the law. But you also need to be prepared to respond sensibly to a proposed policy of requiring workers to pay for their own PPE. The question of whether such a policy is a sound way to promote safety is subject to debate. But don’t assume it’s necessarily illegal. In some situations, employers have to pay for their workers’ PPE; in others, they don’t. As a safety coordinator, you can’t respond to the merits of the proposal until you figure out whether it’s consistent with your company’s PPE obligations under OHS laws.
SHOW YOUR LAWYER
Inco Ltd. v. Ontario MOL, [1986] O.O.H.S.A.D. No. 1, Feb. 14, 1986
Megley Foods Inc. v. United Food & Commercial Workers Union, Local 312A (New Uniforms Grievance), [2000] 89 L.A.C. (4th) 111, March 6, 2000
Loading ...
