On February 3, 2021, we blogged about “Cal/OSHA Emergency Regulations – Strike One on An Initial Challenge,” and promised our readers to update you when Judge Schulman issued his final decision.  

The Challenge to the Cal/OSHA Regulations is Rejected

That day has come, and last week Judge Shulman (in a 40-page decision) emphatically and unambiguously denied the parties’ request for a preliminary injunction, in its entirety.  Judge Schulman’s opinion pointed out how Cal/OSHA issued the emergency regulations “[o]n November 30, 2020, as the COVID-19 pandemic surged out of control in California and across the country…,” and “[n]ow as the United States passes the grim milestone of half a million deaths from the pandemic, Plaintiffs in these related cases … seek a preliminary injunction restraining the Board from enforcing the ETS Regulations."

Judge Shulman found ample support for Cal/OSHA’s finding of an “emergency,” and quickly countered the moving parties’ argument that COVID-19 did not qualify as a true emergency:

In the early stage of the pandemic, stay-at-home orders had initially flattened the curve in California, the existing ATD standard protected employees in healthcare and other workplaces most affected by the pandemic, and the expected extent and length of the pandemic were unclear.  

However, cases began to rise precipitously in October and November 2020.  [The prior] guidance is not sufficient to address the present increase in cases and the risk of occupational spread. . . . The present threat of exponential growth in COVID-19 cases demands immediate action.  

Most importantly, Judge Schulman’s opinion explained the basis for holding that Cal/OSHA had the authority to require California employers to provide “exclusion pay” for those employees who are excluded from the workplace due to COVID-19 exposure: 

The Board found that this paid leave provision is necessary to limit transmission of COVID-19 in the workplace.  Toward this end, it is important that employees who are COVID-19 cases or who had exposure to COVID-19 do not come to work.  Maintaining employees' earnings and benefits when they are excluded from the workplace is important in ensuring that employees will notify their employers if they test positive for COVID-19 or have an exposure to COVID-19, and stay away from the workplace during the high-risk exposure period when they may be infectious.  

The opinion held that requiring exclusion pay – which is essentially a requirement to provide paid leave – was well within the scope of Cal/OSHA’s authority. Judge Schulman explained that Cal/OSHA possesses “exceedingly broad authority to enforce regulations to protect the health and safety of employees throughout the state.” 

This is only a trial court decision. It may be appealed, but for now the emergency regulations, including the mandated exclusion pay, are here to stay.

Testing Information Provided by Cal/OSHA

Cal/OSHA last updated its FAQs on January 26 and February 26, 2021, clarifying testing and the emergency regulations scope of coverage.  Regarding testing, links to the CDPH and National Association of County and City Health Officials websites were provided, in order to help give directions on where an employee can schedule a COVID-19 test.  The updates also clarified that testing can be provided on-site by a qualified medical provider, and provided a website for on-site testing when a “large number” of employees need to be tested on a regular basis (e.g., in an outbreak scenario).  Additionally, although not listed on the FAQ page, employers may also visit https://covid19.ca.gov/get-tested/ to find testing locations for their employees.

Key Testing Question Remains

Although Cal/OSHA has stated that an employer will not be in violation of the testing requirements if an employee refuses to take a (required) test, it still does not provide any direction as to how an employer is to handle employees who refuse to be tested.  Meaning, should the employee be excluded from the workplace for failing to obey a (testing) directive issued by Cal/OSHA, since that employee now presumptively is at an increased threat of having been exposed, since he or she was required to get tested in the first place?  Is the employer then liable if it does not exclude the employee, because it is allowing an employee to defy Cal/OSHA’s testing requirements and still remain in the workplace?

Needless to say, these and other questions need to be addressed by Cal/OSHA in the near future, as they present very real, practical issues imposed on employers when implementing the COVID-19 emergency regulations, which, as Judge Shulman made aptly clear, are with us for the foreseeable future.