Posted: February 5, 2021 | News
As addressed in our prior blog, Cal-OSHA adopted comprehensive Emergency COVID-19 Prevention Regulations that impose several onerous obligations and requirements on employers. A group of business owners and employer rights’ groups filed an injunction in state court requesting that the judge invalidate the emergency regulations claiming that they are legally flawed for multiple reasons.
The employer groups complaints are rather lengthy, however, some of the main points they argued were as follows:
- The emergency regulations were adopted, without prior public notice or a full public hearing, as required by applicable law.
- The circumstances surrounding these regulations did not warrant emergency adoption. On this point, the employer groups emphasized that “employers in almost every industry in California have made radical changes to the way they run their businesses in response to the COVID-19 pandemic.” Various state and local agencies had “already released detailed industry-specific orders, guidelines, checklists, and other resources to ensure that employers can operate while protecting the health and safety of employees and the public.”
- Cal-OSHA exceeded the scope of its authority by regulating wage and paid leave issues, which are the domain of agencies like the Department of Labor Standards Enforcement.
- The employer groups were denied due process of law and any meaningful opportunity to respond to the proposed regulations and explain how and why they are so “deeply flawed,” particularly, “with respect to the COVID-19 testing and mandatory periods of paid exclusion from work that the emergency regulations purport to require.” The employer groups further emphasized that the regulations were improper as “they apply equally to all employers, regardless of their size or the prevalence of cases for their specific industry, and despite the absence of a proven nexus between COVID-19 positivity rates and workplaces generally.”
Despite the above, on January 28, 2021, the judge tentatively ruled that he was not likely to grant the injunctive and declaratory relief sought. The judge gave the parties an opportunity to submit additional briefing and it is anticipated that the court will issue its final ruling sometime shortly after February 11, 2021. If the court adopts its tentative ruling that means the obligations imposed on employers by the emergency regulations will remain intact.
In the meantime, Cal-OSHA continues to update its FAQs website in an effort to address confusion and uncertainty surrounding the emergency regulations’ various requirements.
This blog will not address all of the updated FAQs, however, employers can access and should periodically review Cal-OSHA's FAQs website at the following link. Some notable, updates:
Testing: Cal-OSHA clarifies that employers can send their employees to a free testing site for testing (e.g., run by their county, etc.) and that will be considered to be “at no cost to employees,” as long as employees actually incur no cost for the testing, such as paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs). Cal-OSHA explains that an employer that offers a test at no cost to the employee does not violate the regulations if an employee declines or refuses to take it. Cal-OSHA provides information on where employers can find free testing sites.
Exclusion Pay: Cal-OSHA clarifies if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under the emergency regulations. The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits. Cal-OSHA clarifies that it also does not consider an employee receiving workers’ compensation temporary disability benefits for wages lost during the period in which they are excluded from the workplace to be “able and available to work” within the meaning of the regulations. In other words, an employee cannot receive both types of benefits.
Rebutting the COVID-19 Exposure was Work-Related: Cal-OSHA clarifies that rebutting the presumption that a COVID-19 exposure was not work-related to avoid the exclusion pay requirement, involves an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that the COVID-19 exposure did not occur in the workplace as outlined in SB 1159 workers’ compensation framework.
Vaccines: For now, Cal-OSHA has stated all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the regulations.
This blog is not meant to provide specific legal advice. For further information regarding Cal-OSHA’s Emergency COVID-19 Prevention Regulations, the employment attorneys at Ferruzzo & Ferruzzo, LLP are available to provide guidance.
Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group. Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims. Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices