Employer groups are suing the state of California over sweeping emergency temporary standards (ETS) dealing with COVID-19 in the workplace that were issued at the end of November by the state’s Division of Occupational Safety and Health (Cal/OSHA).
This legal challenge could have impact far beyond organizations with employees in California. President-Elect Joe Biden’s team has promised that the federal government will adopt nationwide ETS based on standards already adopted by states like Virginia and Oregon as well as California. The AFL-CIO strongly criticized the federal Occupational Safety and Health Administration (OSHA) for not adopting such standards under the Trump administration.
The lawsuit alleging legal overreach by state employment safety agencies was filed Dec. 16 by the National Retail Federation (NRF), the National Federation of Independent Business and three individual small business employers located in the state. They assert the new rules were imposed with little advance public notice or opportunity for comment on employers already struggling under other state and local pandemic restrictions.
“With this emergency rule, the state is shifting more of the cost of public health and safety onto the backs of employers, many of which have been instructed to close at differing times this year,” says Stephanie Martz, NRF’s chief administrative officer and general counsel. “Even the most well-intentioned employer could find itself unable to implement these costly rules and be forced to close. Job losses will accelerate as businesses close in communities large and small.”
The groups told the court that Cal/OSHA took these steps in the face of what they termed a complete absence of data about workplace exposures to the coronavirus and how such exposure could be dealt with effectively. Instead, they said the agency chose to depend on speculative conclusions about the effectiveness of existing COVID-19 safety programs.
In particular, the suit challenges the COVID-19 testing requirements imposed by the ETS, which apply equally to employers with five or 5,000 employees and do not provide for adjustment in threshold levels for employers of differing sizes. The employers observe that the ETS also shifts the burden of testing from public health officials to employers, although no data or science connects COVID-19 spread in the workplace.
The employer groups also assert that those provisions included in the ETS that attempt to regulate wages and employee benefits lie beyond the lawful jurisdiction of Cal/OSHA. Specifically, they argue that Cal/OSHA did not have legal authority to require paid leave, which could result in limitless leave for employees and confusion with a recently passed state law as well as other leave-related legal obligations.
The employers also accuse Cal/OSHA of violating their due process rights because the standards arbitrarily and capriciously require that employees be excluded from the workplace with the potential for creating ruinous losses of productivity and revenue. At the same time, the ETS requires these employers “to pay the full costs of the labor that they needed, but were denied, all without having engaged in reasoned decision-making,” they say.
Another criticism is that the ETS fails to address employees who are immune from COVID-19 because they were recently infected and recovered from it. The standards apparently require that the employees be tested, removed from the worksite, and then quarantined—in spite of the fact that they are not at risk from the virus and they are not a risk to their fellow workers.
The employers point out that Cal/OSHA also failed to take into account the nationwide rollout of a comprehensive vaccination program that was already underway at the time the rules were being finalized. As a result, the ETS does not address the use of vaccines or say what should be done with employees who are immune from the virus due to vaccination.
Cal/OSHA even admitted that the standards were so hastily adopted that they would require almost immediate “clarification” through FAQs and guidance statements from the agency, which the agency has yet to issue, the law firm of Seyfarth Shaw revealed in its analysis of the lawsuit.
“In its rush to regulate, Cal/OSHA has failed to acknowledge the continuing efforts and safety protocols put in place by retailers to protect their workers and customers, not to mention the extensive reopening criteria developed by the governor,” Martz says. “Instead, Cal/OSHA has improperly exercised its emergency power by imposing costly and confusing regulations with little notice and no substantial opportunity for employers to participate in the process.”