Hard hats, safety boots, protective gloves, respirators: By law, personal protective equipment has to be used in the workplace. Workers have to be trained to use it, and it has to be properly maintained. The law is clear that the employer is responsible for ensuring these requirements are met. What the law doesn’t always make clear is who is responsible for paying for the equipment. For some, it comes down to one word: “provide”. Is the employer required to provide the equipment, according to the legislation, and does the word also mean “required to pay for”?
Manitoba has interpreted its legislation to mean the employer provides personal protective equipment (PPE) although the law is “a little ambiguous,” says Ron Humeniuk, supervisor of client services for Manitoba Labour. Section 4(c) of the Workplace Safety and Health Act requires employers to ensure… that workers are familiar with the use of all devices or equipment provided for their protection. Humeniuk says this suggests that the employer is to pay for the equipment. It is further reinforced in section 5(b), which requires a worker to use all devices and wear all articles of clothing and personal protective equipment designated and provided for his protection by his employer, or required to be used and worn by him by the regulations. “There are several clear implications that indicate that it is up the employer to provide the equipment,” says Humeniuk. “It doesn’t clarify which equipment, it only implies that safety equipment is to be provided by the employer.”
But Section 4 of the Construction Industry Safety Regulation that says PPE beyond “normal occupational dress and equipment” is to be provided by the employer, except for safety headgear and safety footwear. Here, hard hats and safety boots are identified as a worker’s responsibility. The term “normal occupational dress” is also subject to some interpretation. For example, workers required to work with concrete on a regular basis would be required to pay for their “normal occupational dress” for working with concrete, says Humeniuk. But employers who require workers to work with concrete for one particular job should pay for the special clothes — coveralls, perhaps — worn for the job.
The federal jurisdiction’s legislation is similar. Section 12.3 of the Canada Labour Code refers to all protection equipment provided by the employer. Jacques Morin, chief of the occupational safety and health compliance unit at HRDC Labour, says any PPE in the code that shall be provided, is to be paid for by the employer. Where it says the equipment shall be used, who has to pay for it is not specified. Footwear and safety headgear are the main items for which payment isn’t specified.
The Northwest Territories also has legislation that says the employer is to provide some personal protective equipment. In the Safety Act, where it says the employer shall ensure the equipment is provided, the employer pays. This includes headgear and eye protection.
But where these three jurisdictions have said “provide” means “pay”, the legislation in other jurisdictions is not quite so clear.
Provide means make available
“The law is silent,” says Evelyn Stefov, Ontario Ministry of Labour (MOL) specialist for the Construction Health and Safety Program. As far as the MOL is concerned, payment for PPE is not addressed in the legislation. But the Ontario Occupational Health and Safety Act says in section 25(a), an employer shall ensure that the equipment, materials and protective devices as prescribed are provided. (The word “prescribed” means required by a regulation made under the act.) So what’s the difference?
According to Don Brown, MOL specialist for the Industrial Health and Safety Program, the legislation does not legally define the word “provide”. “Many lay people believe that provide means pay, but without a legal definition, we can only look to the Oxford dictionary” he says, and it defines “provide” as to cause to have possession or use of, to supply, make available. No mention of payment in the dictionary means employers aren’t required to pay.
Ontario’s not alone. Legislation in both New Brunswick and Nova Scotia uses the term “provide”, but this does not address payment. “It’s a conscious decision of the board not to take a position. It is a matter to be determined by the parties involved,” says Suzanne Ball, legal and legislative services advisor for the Workplace Health, Safety and Compensation Commission in New Brunswick. She adds that payment for PPE has never been determined in court in the province, and it would have to be brought to court for the legislation to change.
The no-cost option
Quebec’s Occupational Health and Safety Act, in Section 51 (11) requires the employer to provide the worker, free of charge, with all the individual protective health and safety devices either selected by the health and safety committee or required by the legislation.
The Yukon’s Occupational Health and Safety Act is similar to Quebec’s. Bob Scott, acting chief safety officer of the Workers’ Compensation and Health and Safety Board, says section 5(1) and (2) are “catch all” clauses that makes the employer responsible for paying for all PPE with the exception of footwear. Why not footwear? “Footwear is a very personal item that can’t be transferred to another individual,” Scott says. “Other items such as rain gear, you buy three sizes and you’ve got everyone covered.”
Section 87(1)(a) of Saskatchewan’s Occupational Health and Safety Regulations says the personal protective equipment that the employer is responsible for providing must be supplied at no cost to the workers. In other words, the employer pays for protective headgear, eye and face protectors, and hand and arm protection.
In British Columbia, the Occupational Health and Safety Regulation outlines in section 8.2 who is responsible for paying for each type of personal protective equipment. A worker is responsible for providing clothing needed for protection against the natural elements, general purpose work gloves and appropriate footwear and safety headgear. The employer is responsible for providing — at no cost — all other items of personal protective equipment required by the regulation.
The two remaining jurisdictions, Newfoundland and Prince Edward Island make no mention of who pays in their legislation. The legislation doesn’t even use the word “provide”. Instead, both say the employer must ensure the worker wears or uses personal protective equipment. George Stewart, occupational health and safety director for PEI, says the employer is responsible for ensuring the PPE is in the workplace, that the employees are trained to use the equipment, and that the equipment is maintained. “Who pays for the equipment to be there is a workplace issue,” he adds.
A workplace issue
This doesn’t mean that the employer isn’t paying for PPE. Paying for PPE may be a condition of employment, or the employer may offer to pay for some equipment or share the cost of the equipment.
Ron Humeniuk in Manitoba points out that the Construction Safety Act says headgear is a worker item but “in actual practice, most companies provide the worker with a hard hat.” That may be because the company wants the worker to wear a hard hat with its logo. Also, he adds, “Often there is a pecking order where the supervisor will wear a white hat and the workers wear another colour.”
In the unionized environment, the issue of who pays for PPE is clear. About 98 per cent of contractual agreements include who pays for PPE, says Brian Kohler, workplace health and safety director for the Altantic and Ontario regions for the Communications, Energy and Paperworkers union (CEP). Kohler says all PPE should be paid for by the employer. “It’s our position that PPE should be legislated,” Kohler says. “PPE is the least effective point of control, but sometimes it’s the only solution. The cost should still be borne by the employer. It’s the same as a guard for a machine. You wouldn’t require the employee to pay for the guard because he works the machine. That’s how ridiculous we think it is.”
If the employee is making the choices and bearing the cost of the PPE out of his pocket, then the burden is placed on the employee to protect himself. Kohler says that degrades the whole system.
Tom Lowe, national health and safety director for the IWA-Canada says the majority of its contracts require the employer to pay for PPE. He adds that employers are likely to pay for PPE when the alternative — increased time off work and compensation claims — is likely to be more costly.
Kohler adds that the employer who is serious about reducing costs has to keep in mind that PPE is the last option to consider. “It’s only a partial solution and there are a whole range of other solutions,” he says. Personal protective equipment is to be used when it is not reasonably practicable to eliminate or control a hazard by workplace design or by using administrative controls.
Labour department inspectors aren’t issuing orders for employers to pay for personal protective equipment, which makes it improbable that the issue will be brought to the courts any time soon. The fact that some jurisdictions across the country have legislation that says “at no cost to the worker” and “free of charge” may cause workers and unions in other the jurisdictions to push for similar provisions. Changes in legislation in these jurisdictions don’t seem likely, however.
Jennifer McLaughlin is editorial assistant of OHS Canada.