On Jan. 8, 2021, Cal/OSHA issued much-anticipated updated Frequently Asked Questions in connection with the COVID-19 emergency temporary standards (ETS). While the new FAQs offer some clarity as to some of the many questions employers have grappled with in attempting to comply with the ETS, many questions and ambiguities remain.

According to the updated FAQs Cal/OSHA will issue citations, but not assess monetary penalties, for violations of the ETS through Feb. 1, 2021, so long as: (1) as the employer shows good-faith efforts to comply with the ETS; (2) the violation does not violated the employer’s Injury and Illness Prevention Program (IIPP) or other applicable program in place before the ETS went into effect on November 30, 2020; (3) the employer abates the violation; and (4) the violation does not involve an imminent hazard. 

One of the greatest sources of confusion about the ETS relate to exclusion pay requirements. The FAQs clarify that exclusion pay is not required under the ETS if an employer can show the COVID-19 exposure was not work-related. This may be difficult to demonstrate in practice but if an employee says they were exposed at a family gathering or a bar, for example, that should be documented. Also, if an employee is unable or unavailable to return to work beyond the 14-day quarantine period, they may be disqualified from receiving additional exclusion pay under the ETS.  Finally, 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 ETS.

The FAQs have a section on physical distancing, face coverings and other controls. Notably, the FAQs state that “workers within six feet of one another are considered a close contact for determining COVID-19 exposure, regardless of partitions.”  Moreover, employers are obligated to comply with the ETS regardless of whether part or all of the workforce is vaccinated.  

The FAQs clarify that the ETS requirement to “offer testing” and “provide testing” mean the same thing. And employers can refer employees to free testing sites as part of their testing obligations under the ETS.

As reported here, Western Growers, the California Business Roundtable, the California Association of Winegrape Growers, the California Farm Bureau Federation, Ventura County Agricultural Association, and the Grower-Shipper Association of Central California joined together to file a lawsuit against Cal OSHA and related entities and individuals over the ETS before the Los Angeles Superior Court. The lawsuit, filed  by Sheppard, Mullin, Richter & Hampton attorneys David Schwarz, Kent Raygor and Barbara Taylor, contends that the Board violated employers’ due process rights and the state’s administrative procedure laws by failing to provide clear and adequate notice of the link between the ETS and the emergency situation necessitating the new rules.

The lawsuit also claims that the ETS improperly imposes “unprecedented financial and operational costs on employers” in the state and without evidence that the new requirements will significantly or even materially improve workplace health and safety as it pertains to COVID-19. The required measures further lack clarity, such that employers are not understanding what is required of them, and do not take into account resources, feasibility, or costs. Further, the action alleges that many of the requirements in the ETS have little to no connection to workplace health and safety and instead deputize employers to monitor non-work-related COVID-19 exposure risks. A related lawsuit filed in San Francisco Superior Court by retail industry groups seeking declaratory and injunctive relief from the ETS is set for hearing on a preliminary injunction on Jan. 28.

On Jan. 12, Los Angeles Superior Court Judge Mary H. Strobel set a hearing date of Feb. 4 for the plaintiffs’ motion for preliminary injunction to be heard. Continue to read WG Spotlight for updates on Western Growers Association, et al. v. California Occupational Safety and Health Standards Board.

As reported here, on December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers. v. DOL enjoining the Department of Labor from implementing its Final Rule modifying the Adverse Effect Wage Rate (AEWR) methodology for setting wages under the H-2A program.

On January 12, 2021, the court also ordered DOL to publish the AEWR for 2021 in the Federal Register on or before February 25, 2021, using the methodology set forth in the prior 2010 rule, and to make those AEWRs effective upon publication. Additionally, the court ordered the Department to notify all state workforce agencies (SWAs), employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until the Department publishes 2021 AEWRs in the Federal Register, which it did on January 15.

Additionally, the court said it will later decide whether an award of backpay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs. Accordingly, the court ordered DOL to provide notice to all employers who submit job orders and applications under the H-2A program between December 21, 2020, and the publication of 2021 AEWRs in the Federal Register, that affected H-2A workers may have a potential claim for backpay.

In its announcement about the court’s order, DOL reminded employers to record the names and permanent home addresses of all H-2A workers who may later be entitled to backpay and make reasonable efforts to ensure that such information for each worker remains current. DOL will provide a further notice when the court issues a ruling regarding potential backpay.

As reported here, on January 15, 2021, just five days before President Biden would take the oath of office, the U.S. Department of Labor announced the imminent publication of a final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (RIN 1205-AB89). The rule was to go into effect 30 days after the pending publication of the rule in the Federal Register. But on January 20, 2021, the DOL withdrew the rule from the Federal Register prior to publication.

The DOL said it was withdrawing the proposed rule “for the purpose of reviewing issues of law, fact, and policy raised by the rule,” and therefore it will not take effect. DOL said it will notify the public of any further actions once it completes its review. However, it is anticipated the proposed rule will be shelved permanently.

For information about the H-2A program or Western Growers H-2A Services, please contact Jason Resnick at [email protected]