A recent publication by Cal/OSHA states: “Employers must provide face coverings for workers or reimburse them for the reasonable costs of obtaining them.” But how accurate is this legal position?
Under the California Labor Code’s health and safety provisions, employers are required to furnish, meaning either provide or pay for, and use safety devices at the workplace to keep employees safe. It is well established that the phrase “safety devices” includes personal protective equipment (“PPE”) required by the hazards of the workplace. However, many Cal/OSHA guidelines have concluded that facial coverings are not PPE, and therefore are likely not the type of “safety devices” that an employer must provide or pay for.
Separately, the Labor Code’s wage and hour provisions provide that employers must reimburse employees for all necessary expenses incurred by the employee on behalf of the business. For this purpose, a necessary expense is one that results from the employer’s mandatory rules or requirements. Many employers, because of federal, state, and local health guidance or mandates, are now requiring employees to wear facial coverings in the workplace. This employer mandate could be qualified as a reimbursable expense under the Labor Code.
A long-standing caveat to this rule of reimbursement involves employee uniforms. Where the employer requires employees to wear special and distinctive uniforms, it must either provide the uniforms or reimburse employees for the cost of obtaining them. However, employers have no obligation to provide or reimburse for uniform items that are generally useable in the occupation, such as jeans, dark shoes, or white shirts. Because generic, reusable facial coverings are generally usable in most occupations (as well as in everyday life), employers may not be required to provide them or reimburse employees for them.
Businesses’ decisions on facial coverings for employees is significant. On one hand, providing or reimbursing employees for facial coverings may have significant front-end costs for businesses. On the other hand, failure to do so could subject employers to significant wage-related liability, Cal/OSHA enforcement actions, and/or increased liability for workers’ compensation claims.
Businesses should be aware of the legal issues involved when deciding how to deal with employee facial coverings as more is learned about the authority for requiring employees to do so. Should your business have any concerns or questions about facial coverings in the workplace, or other employment matters, please contact an attorney at Sagaser, Watkins & Wieland PC who can assist your business through these challenging times.