On December 1, new Cal/OSHA Emergency Temporary Standards (ETS) went into effect, creating a host of new COVID-19 obligations for employers. Included in the ETS regulations are specific testing procedures, training and prevention protocols, and recordkeeping and reporting requirements. The ETS regulations include several controversial provisions, including stringent 14-day exclusion requirements for asymptomatic close contacts and a mandate that, with limited exceptions, employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations. (On December 14, the Governor issued an Executive Order easing the 14-day exclusion mandate, such that most asymptomatic close contacts may return after 10 days.)

Predictably, the Cal/OSHA ETS regulations have now been challenged in court. On December 16, the National Retail Federation, National Federation of Independent Businesses, and three California employers filed suit in state court in San Francisco. The plaintiffs assert that “California employers have established rigorous and science-driven safety measures, often at great expense,” to make workplaces safe,” and that the Cal/OSHA ETS regulations violate California law and are unconstitutional.

The plaintiffs make several arguments, including:

  • The ETS regulations were adopted without adequate public notice or hearing in violation of the California Administrative Procedure Act;
  • By requiring employers to maintain earnings of excluded employees, the ETS regulations seek to regulate wages and paid leave in excess of Cal/OSHA’s jurisdiction;
  • Because the enhanced “outbreak” testing protocols are triggered by three cases in a 14-day period, regardless of whether the employer has 5 employees or 500 employees, the ETS regulations are arbitrary and capricious;
  • The exclusion and pay requirements pose a threat to the viability of smaller employers;
  • The ETS regulations were adopted contrary to internal staff findings that the regulations were unnecessary and unsupported by science; and
  • the ETS regulations deprive employers of property without just compensation or due process.

The complaint seeks a declaratory judgment invalidating sections 3205(c)(10) [requiring exclusion of employees while maintaining earnings], 3205(c)(3)(b)(4.) [requiring employers to offer testing during “working hours” for close contact employees after workplace exposure], 3205.1(b) [requiring weekly workplace testing after a workplace “outbreak”], 3205.2(b) [requiring enhanced testing after a “Major COVID-19 outbreak”], and 3205.3(g) [requiring testing related to employer-provided housing].

As of this post, a case management conference is set for May 19, 2021.  However, as the complaint also requests a temporary restraining order and preliminary injunction, expect the plaintiffs to fie a motion in the near future seeking to enjoin enforcement of the challenged provisions while the case proceeds. Employers should continue to comply with the ETS regulations for the time being.