Two Home Depot warehouse workers had an accident while driving vehicles called electric pallet jacks at Home Depot’s Mira Loma distribution warehouse.

After a workplace accident and inspection, the Division of Occupational Safety and Health cited Home Depot for several violations of workplace safety standards. The investigator found that the industrial truck operators wore tennis-type shoes while they were operating industrial trucks.

The Division determined Home Depot had violated regulations which requires “appropriate foot protection” for employees exposed to foot injuries, and which sets standards for the safe operation of industrial trucks and requires employers to make sure their employees comply. The Division said that in this case “appropriate” would be steel toed shoes.

Home Depot challenged the citations. Ultimately, the respondent, California Occupational Safety and Health Appeals Board, affirmed the footwear citation because Home Depot employees were exposed to foot injuries when they manually lift heavy loads and when they worked on foot or walked in close proximity to industrial trucks. They found Home Depot’s safety policies and prohibition on open-toed or open-heeled shoes didn’t adequately protect those employees.

The Board affirmed the truck-operation citation because Home Depot did not establish the employee caused the infraction despite knowing her conduct was contrary to the employer’s safety requirements.

Home Depot filed a petition for writ of mandate, asking the trial court to relieve them of the footwear citation on the ground the findings weren’t supported. The trial court declined, and Home Depot asked the court of appeal to make the same determination. However, the court of appeal affirmed in the unpublished case of Home Depot USA v California Occupational Safety and Health Appeals Board.

Home Depot did not require their employees to wear protective shoes when they worked in the warehouse. Their policy required only that they wear “closed-toed and closed-heeled shoes.” Home Depot’s policy said “Flip-Flops, sandals, open-toed shoes, or open heeled shoes” are unacceptable.

Home Depot says they don’t require their warehouse employees to wear steel-toed boots or similar footwear because such footwear can cause ergonomic problems, tripping hazards, and fatigue, and they can be “cumbersome,” “uncomfortable” and “bulky.”

Amicus curiae, Retail Litigation Center, Inc. and National Federation of Independent Business, who support Home Depot, object that the Board’s opinion articulates an “uncertain standard [that] will have far-reaching consequences for employees in a wide range of businesses, including large retailers and small independent businesses that may have industrial trucks or pallet jacks in the facility even though the majority of employees encounter them only rarely.”

However, the court of appeal concluded that there was substantial evidence supporting the Board’s determination that Home Depot employees were both actually exposed and realistically likely to be exposed to foot injuries. A violation of the safety order is not based on previous history of accidents or injuries resulting from the exposure but rather on the existence of the danger which may cause injury.

The court did however “agree the language in the Board’s opinion can be read to sweep too broadly, so we emphasize our holding is limited to the facts and evidence of the case.”