Businesses sue California over COVID-19 workplace rules that require testing, sick pay
Groups representing small businesses sued California’s workplace regulator Wednesday, saying the agency exceeded its authority and overburdened companies when it passed new COVID-19 rules a month ago.
California’s Division of Occupational Safety and Health, commonly called Cal-OSHA, approved strict emergency regulations on Nov. 19. The regulations require companies to test employees at no cost during COVID-19 outbreaks, provide protective equipment and preserve workers’ pay and benefits when they miss work because of the virus.
Those rules, along with requirements to exclude employees from work after virus exposures, could cost California companies millions of dollars, according to the lawsuit, filed in San Francisco Superior Court by the National Federation of Independent Businesses, the National Retail Federation and three California businesses.
The “vast majority” of California employers have already been acting responsibly to promote safety for their workers, the groups said in the lawsuit.
“Especially for small businesses, the obligation to comply with these mandates can be ruinous and poses a legitimate threat to their continued existence,” the groups said in the suit.
The Department of Industrial Relations’ public affairs office declined to respond, saying the agency doesn’t discuss pending litigation.
Cal-OSHA’s standards board voted unanimously to approve the regulations in November, saying they needed to quickly pass stronger rules to empower the agency to protect workers.
When businesses and interest groups expressed some of the concerns outlined in the lawsuit at the November meeting, the board’s executive officer, Christina Shupe, said its legal counsel had reviewed the standard. Cal-OSHA Chief Doug Parker said the agency believes it’s acting within its jurisdiction, and offered flexibility for employers who might need more time to come into compliance.
It’s unclear how much workplace outbreaks have contributed to the skyrocketing coronavirus numbers, because many counties have not made public the information on those outbreaks.
California was one of the first states in the country to adopt emergency workplace rules to protect employees from exposure to the virus.
The rules require companies to test all employees who were at the workplace during an outbreak, defined as three positive test results within 14 days. Employers must test all employees again a week later.
Businesses could also be on the hook to provide millions of tests, which could hurt the state’s overall testing capacity, the groups said.
“It is likely that the infection and testing numbers at issue will create supply shortages and testing delays,” the groups said in the lawsuit.
Employers must also “continue and maintain” workers’ earnings, seniority and other rights and benefits when they are out of work after a positive test or exposure.
The business groups said in the lawsuit that Cal-OSHA doesn’t have authority to regulate wage issues and can’t mandate employers to pay their employees when they aren’t working.
The provisions that require companies to keep workers at home after an exposure present a special challenge for larger employers, according to the suit.
“For large distribution centers, the regulations on their face could result in the mandatory 14-day exclusion of hundreds of employees all at once, if not the majority of the workforce,” the groups said in the lawsuit. “Hundreds of qualified replacement workers cannot be found and on-boarded overnight, or even in 14 days.”
(California has recently updated its quarantine rule based on Centers for Disease Control and Prevention guidelines to keep workers out of the workplace for 10 days after their last known exposure if they don’t have symptoms.)
The groups accused the board of rushing to adopt the standards without adequate time for public input.
The board said in a September meeting that it needed to develop emergency standards. On Nov. 19, the board weighed testimony from a swath of people ranging from restaurant servers to retail workers to business owners and lobbyists, voting to approve the regulations at the end of a nine-hour meeting.
Cal-OSHA will hold a public meeting on Friday, Dec. 18, at noon to further discuss the standard.
This story was originally published December 17, 2020 at 3:32 PM with the headline "Businesses sue California over COVID-19 workplace rules that require testing, sick pay."
