January 12, 2021

Cal/OSHA Issues New COVID-19 Emergency Temporary Standard FAQ’s; Industry Lawsuit is Underway

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.