AGO 1956 No. 249 - Apr 19 1956
INDUSTRIAL INSURANCE ‑- SAFETY ‑- DEPT. OF LABOR AND INDUSTRIES, DIVISION OF SAFETY ‑- SAFETY STANDARDS ‑- GENERAL SAFETY STANDARDS ‑- SAFETY STANDARDS FOR METALS INDUSTRY ‑- PERSONAL PROTECTIVE EQUIPMENT AND CLOTHING, EMPLOYER'S DUTY TO PROVIDE AND USE
An employer may be compelled to provide welding gloves and welding helmets for his employees, except in cases where particular employees may prefer to use their own gloves and helmets; but an employer may not be compelled to furnish welding jackets and pants.
It is the responsibility of the employer to see that proper safety equipment is used by his employees.
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April 19, 1956
Honorable R. R. Bob Greive
State Senator, 34th District
4456 California Avenue
Seattle 16, Washington Cite as: AGO 55-57 No. 249
We are in receipt of your letter requesting an opinion from this office on the following questions:
(1) Can employers be forced, by virtue of Standard 46 of the Safe Place and Safety Device Standards of the General Safety Standards, and Standard 30 of the Safety Standards for Metals Industry, promulgated by the supervisor of the division of safety, department of labor and industries, to provide welding gloves, helmets, jackets and pants, which are admittedly necessary for the physical protection of employees?
[[Orig. Op. Page 2]]
(2) Is it the responsibility of employers to see that proper safety equipment is used by their employees?
Our answer to your first question is in the affirmative as to welding gloves and helmets, except in cases where particular employees prefer to use their own gloves and helmets, and in the negative as to jackets and pants.
Our answer to your second question is in the affirmative.
(1) Answering your first question, the pertinent portions of the safety standards as promulgated by the supervisor of the division of safety, department of labor and industries, are set forth as follows:
Standard 46, Safe Place and Safety Device Standards, General Safety Standards, Department of Labor & Industries, Division of Safety:
"(a) Goggles, masks, shields, or other prescribed face and eye protection shall be furnished to employees who are engaged in welding, grinding, torch cutting, snagging or chipping, handling molten metals, acids, or caustics, or who are exposed to harmful rays, dusts, or flying materials of any kind.
". . .
"(d) Other personal safety equipment or clothing, such as rubber gloves, rubber boots, leggings, aprons, safety belts, life lines, bouyant vests, shall be furnished to employees who are exposed to hazards where such devices may be expected to prevent injury.
[[Orig. Op. Page 3]]
". . .
"(g) All personal protective equipment and accessories shall be of a type approved by the Department of Labor and Industries. U.S. Bureau of Mines approved equipment will be accepted by the Department."
Standard 30, Safety Standards for Metals Industry, Department of Labor & Industries, Division of Safety:
"(a) Personal protective equipment shall mean that type of equipment required by workmen as protection from specific and peculiar hazards of employment. All such personal protective equipment shall be furnished by the employer and worn by the employee while engaged in employment requiring such protection. Provided, that protective equipment of a personalized nature fitted to the individual employee and customarily taken from employers' premises shall remain on optional status as to ownership.
". . ."
These standards have been duly made and promulgated pursuant to RCW 49.16.050, 49.16.060, 49.16.080, 49.16.090 and 49.16.100 requiring,inter alia, the supervisor of safety to make and promulgate standards of safety. These standards have the same authority and effect as the statute law of the State of Washington.
RCW 49.16.050 requires the supervisor to make and promulgate rules and regulations for enforcement of these standards. RCW 49.16.140 provides the penalty for failure of an employer to comply with these standards. The respective "forwards" to the General Safety Standards and Safety Standards for Metals Industry provide that in the event of inconsistency between the two, the Safety Standards for Metals Industry shall prevail.
[[Orig. Op. Page 4]]
Standard 46(a) of the Safe Place and Safety Device Standards, General Safety Standards, requires the employee engaged in welding to be furnished face and eye protection. Standard 46(d) requires personal safety equipment or clothing, such as rubber gloves, etc., to be furnished to employees who are exposed to hazards where such devices may be expected to prevent injury. The language of Standard 46 clearly comprehends welders' helmets and gloves, and possibly welders' jackets and pants, as protective clothing and equipment which the employer must furnish to his employees. Standard 30 of the Safety Standards for Metals Industry would generally require the employer to furnish welding helmets and gloves to employees who are engaged in welding; however, the standard contains a proviso to the effect that protective equipment of a personalized nature fitted to the individual employee and customarily taken from the employer's premises shall retain an optional status as to ownership.
We are of the opinion that welders' jackets and pants are of such a personalized nature that they fall within the terms of this proviso, and that the employer cannot be forced to furnish these items.
In the metals industry many welder desire to furnish their own helmets and gloves for personal reasons. It has been the current practice of the safety division of the department of labor and industries not to require an employer to furnish welding gloves and helmets to employees who preferred, for personal reasons, to furnish their own and did so furnish them. It would appear that welding helmets and gloves might be classified as semi-personalized equipment in that they are worn closely upon the person of the welder. Personal preferences as to size and styles might well exist. An individual welder might become accustomed or otherwise attached to a helmet he has used, and might wish to take it with him to another job with another employer. In our opinion, the practice of the division of safety of the department of labor and industries, above referred to, is reasonable and is a correct interpretation of Standard 30 of the Safety Standards for Metals Industry. However, any such helmets and gloves furnished by the employees must be of a type approved by the department of labor and industries.
[ 5[Orig. Op. Page ]]
We conclude that an employer can be compelled to provide welding gloves and helmets for all his employees engaged in welding, except for those who prefer to provide their own welding gloves and helmets for their own use. An employer cannot be forced to provide welding jackets and pants for his employees engaged in welding.
(2) Answering your second question, Standard 1 of Safe Place and Safety Device Standards of the General Safety Standards provides in part:
"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. Every employer shall do every other thing reasonably necessary to protect the life and safety of employees.
"No employer shall fail or neglect:
"(1) To provide and use safety devices and safeguards.
"No person shall do any of the following:
"(d) Fail or neglect to do every other thing reasonably necessary to protect the life and safety of employees." (Emphasis supplied.)
This language clearly imposes an affirmative obligation on the employer to see that his employees use safety devices and safeguards.
The employer has the power to hire and discharge employees. He has the power to direct how particular tasks of employment shall be carried out. If an employee refused to abide by a safety standard of the department of labor and industries, he could be prohibited from doing the job by the employer or be discharged. Therefore, [ 6[Orig. Op. Page ]] we feel that the only reasonable construction of Standard 1 is as above stated.
We conclude that it is the responsibility of the employer, not only to provide certain safety devices for employees, but also to see that all safety equipment required to be used in a given type of employment by the safety standards or laws of the State of Washington is so used by his employees.
We hope that this information will be of service to you.
Very truly yours.
DUANE S. RADLIFF
Assistant Attorney General