The provincial government recently amended the Occupational Health and Safety Regulation (“OSHR”) to ban the practice of requiring employees to wear high heels in the workplace. The amendment to section 8.22 of the OHSR followed increasing public pressure to curb the ostensibly discriminatory and unsafe practice.
Interestingly, although the Government’s press release specifically references eliminating mandatory high heel dress codes in the workplace, the effect of the amended regulation may be that high heels are eliminated in some workplaces generally. In other words, employees may be prevented from wearing high heels even if doing so is their own choice.
Under the Workers’ Compensation Act (“WCA”), employers have a general duty to ensure the health and safety of its employees. The OSHR, which falls under the authority of the WCA, stipulates safety standards to help prevent workplace accidents and injuries. Section 8.22 of the OSHR does not expressly prohibit high heels in the workplace; rather, it states that an employer must not require workers to wear footwear that may prevent them from safely performing their work. Determining what constitutes appropriate footwear includes consideration of factors such as slipping, tripping, uneven terrain, abrasion, ankle protection and foot support and potential for musculoskeletal injury.
Based on these considerations and an employer’s general duty to ensure the health and safety of its employees, employees are prevented from wearing high heels (regardless of a dress code) if doing so endangers their health or safety.
WorkSafeBC recently issued a policy guideline that appears to confirm a general prohibition against high heels in the workplace for certain industries. It states that walking in high heels (typically greater than 1.5 inches) has been shown to significantly reduce ankle movement and balance control, and increase musculoskeletal injury. While section 8.22 is “not intended to interfere with a worker’s choice of footwear where there are no hazards of foot or ankle injury or potential for musculoskeletal injury”, the guideline specifically singles out the hospitality industry as being not appropriate for the use of high heels. The guideline states as follows:
OHS Guideline G8.22 Footwear explains that the risk assessment employers must make to determine what constitutes appropriate footwear is based on the work assigned to each worker and on the work procedures and arrangements that exist in the workplace at any given time. The risk assessment should also consider the workplace floor and stair surfaces and whether there may be liquids or items on them that could be slip and trip hazards.
As an example, hospitality workers (e.g., servers, hosts, bus-people, and bartenders in bars, clubs, restaurants, or other hospitality venues) walk on different surfaces, including slippery surfaces and stairs, often while carrying food and drinks. With consideration to the factors referred to in section 8.22(2)(a), (b), (c), (e), and (f), high heels would not be appropriate footwear. A dress code requiring hospitality workers to wear high heels while serving, bussing, or hosting would violate section 8.22(2.1).
Based on the wording of the OSHR and the above policy guideline, it appears employers have a positive obligation to prevent certain workers from wearing high heels in the workplace. This issue has not been adjudicated given the infancy of the amended regulation; however, we expect this to be a hotly contested issue for employers and employees alike.
