By: Anisa Pillai
On February 25, 2021, a San Francisco Superior Court issued a ruling authorizing Cal/OSHA to continue to enforce its Emergency Temporary Standard Regulations (“ETS Regulations”). This ruling was one of a few such rulings testing the applicability of state guidance regarding COVID-19 potentially impacting schools and other employers.
The ETS Regulations apply to most California employees and provide instructions to employers regarding the steps they must take to reduce and prevent the spread of COVID-19 in the workplace.
On November 30, 2020, after extensive public comment, Cal/OSHA adopted new regulations applying to all employees and places of employment with more than one employee who does not have contact with other individuals, employees working from home, and employees who are covered under the limited Aerosol Transmissible Diseases standard which only applies to specified health care, correctional, and other specialized settings. Among other measures, the ETS Regulations:
- Require employers to establish a COVID-19 Prevention Program which, among other things, must address communicating information to employees about COVID-19 and investigating and responding to COVID-19 cases in the workplace;
- Require employers to provide COVID-19 testing to employees at no cost during work hours under specified circumstances;
- Require employers to exclude from the workplace all employees who have, or have been exposed to, COVID-19 for a period of 10-14 days consistent with current public health orders. Employers must maintain employee earnings, seniority, and all other employee rights and benefits during this exclusion period unless the exposure is shown to be non-occupational;
- Require employers to provide twice weekly COVID-19 testing when there are 20 or more COVID-19 cases within an exposed workplace within a 30 day period;
- Require employers who provide employees with transportation to and from work to prioritize shared transportation assignments to minimize exposure to COVID-19 in the same manner as they do shared housing.
Prior to promulgating the above ETS Regulations, Cal/OSHA did not have a specific enforcement standard that projected the majority of workers from COVID-19 in the workplace.
In December 2020, the plaintiffs, representing the retail and agricultural industries, filed suit in the Superior Court of California, County of San Francisco, seeking to restrain Cal/OSHA from enforcing the ETS Regulations. Plaintiffs argued that the ETS Regulations should never have been promulgated in the first place because, among other reasons, Cal/OSHA lacked the authority to adopt such regulations on an emergency basis and ETS Regulations violate due process.
The Court rejected the plaintiff’s arguments and denied their application for a preliminary injunction. The Court stated, among other things, “…the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”
The Court further stated that “with the single exception of restrictions on attendance on religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations, and deaths that follow in its wake. This Court will not be the first. Lives are at stake.”
The Court found that there was nothing novel about the ETS Regulations requirement that employers must continue to provide pay and benefits to workers who are excluded from the workplace due to COVID-19, and that Cal/OSHA has enforced similar requirements when employees are excluded from the workplace for other reasons such as exposure to lead or toxic substances. The Court also found that Cal/OSHA has the “broad regulatory authority” to mandate COVID-19 testing of employees. Finally, as discussed above, the Court found that the public health risk posed by enjoining Cal/OSHA from enforcing the ETS Regulations outweighed the financial cost to the employer to comply with the regulations.
School Specific COVID-19 Rulings
While COVID-19 regulations in the employment environment are unlikely to change any time soon, regulations in the school setting are constantly evolving. For example, on March 15, 2021, a San Diego County judge issued a temporary restraining order blocking the state of California from applying its January framework to schools reopening for in-person instruction. The January framework prohibited middle and high schools from reopening while their county was in the purple tier and required schools to have at least four feet of distance between students in a classroom. In other words, a county’s tier status cannot prevent schools from reopening. The order, which applies statewide, is being appealed.
Additionally, in February a San Diego County Court issued an order prohibiting the county from preventing middle and high school students from participating in youth sports that are operating under the same or similar COVID-19 protocols being enforced by professional and college teams. The Court, in making its ruling, stated that the rates of transmission in high school sports are equal to or less than those observed in recent studies involving major league baseball and national football, and that children are less likely to develop severe illness or die from COVID-19 and are less commonly infected with the virus.
The ETS Regulations are in place through September 2021. As such, employers should continue to comply with the ETS Regulations and ensure that their policies and procedures are consistent with said regulations.
Additionally, due to the constantly changing landscape of the rules regarding in-person instruction on both the state and county level, LEAs should keep informed of any new changes and ensure that they are in compliance with the most recent regulations.