CalChamber Urges Pull Back of Emergency COVID Rules

The California Chamber of Commerce urged the California Legislature this week to correct a series of costly COVID-19 workplace mandates imposed through an emergency regulation order.

The regulation, issued by the California Division of Occupational Safety and Health (Cal/OSHA) late in 2020, requires employers to take a number of extraordinary steps that include providing costly unlimited paid time off for workers. It further creates an overly broad testing scheme that ignores the realities of current testing availability.

In the letter sent to legislators on February 1, the CalChamber argues that while safety practices in the workplace have had to change as a result of the COVID-19 pandemic, many of the new safety restrictions are not feasible for employers—especially small businesses struggling in the midst of a pandemic that has threatened to bankrupt them.

“California’s solution to COVID-19 cannot simply be to shift the costs of its social safety net to California’s employers,” said CalChamber Policy Advocate Robert Moutrie.

During the emergency rulemaking process, Cal/OSHA failed to adequately consider the feasibility of many of the provisions of the emergency mandate and, as such, created policies that are not only expensive, but unworkable, the CalChamber pointed out in the letter.

Specifically, the CalChamber is asking that the following provisions of the emergency regulation be addressed:

• Limit the uncapped time off provision such that employers are not forced to provide potentially months of pay to excluded employees who are not sick while simultaneously paying a second workforce to take their places or completely shut down; and

• Correct testing requirements that are overly complicated and punish well-intentioned employers who are at the mercy of medical logistics over which they have no control.

Unlimited Time Off

The emergency regulations require employers to exclude anyone who was a “close contact” of a COVID-19 case from the workplace for 10-14 days, during which time the employer must “maintain” their earnings.

This means that an entire working group or unit may need to be excluded for a 10–14 day period with paid time off if they work in a relatively proximate workspace. And such exposures may occur more than once, the CalChamber explains.

By way of example: if social spread creates one COVID case in a workplace per month—even with no actual spread in the workplace—the employer will be forced to remove all workers who were close contacts of the positive case from the workplace for 10–14 days. In that time period, the employer must:

• Provide paid time off to the excluded employees; and

• Hire (and potentially train) temporary help to fill those roles and pay their wages, pay current employees overtime wages to make up that labor shortage, or shut down their business.

Moreover, under these regulations, a COVID-19 case in the workplace is not limited to employees. Accordingly, an employer could literally be paying multiple groups of employees to stay off work for being “exposed” simply because an asymptomatic customer came to their location.

Unlike other leaves of absence, there is absolutely no limit in the emergency regulation on how many hours an employer must pay an employee due to exposure. Because the regulations may be in effect until early 2022, this means California employers—including the smallest rural family businesses—may end up paying for months of paid time off to employees who never catch COVID-19—all while simultaneously paying their replacements. And this paid leave will exist entirely outside of California’s existing framework of paid and unpaid sick leave.

Testing Requirements

The emergency regulations also require employers to provide (or ensure employees have access to) testing to employees at no cost and on paid time in a variety of circumstances. If an employee is a close contact of a COVID-19 case, then they must be excluded (as discussed above) and receive testing at no cost. Alternatively, if three cases occur in an exposed workplace area over a 14-day period then it is considered an “outbreak,” and all employees in that area must be tested on a weekly basis.

The outbreak provisions are triggered regardless of whether the cases are among employees or customers, and are triggered regardless of whether the cases were a result of social spread (such as three employees living together and all catching it socially) or workplace spread. The regulation contains a similar “Major Outbreak” provision which requires twice weekly testing for all employees in the “exposed workplace” area.

These requirements ignore the realities of testing availability, the CalChamber explains. First, tests may not be publicly available in certain rural areas and may be a serious expense for smaller employers. Second, even if tests are available, employers cannot compel medical facilities to prioritize testing of cases showing no symptoms.

For example: if an employee is instructed to get tested because they were potentially exposed, and calls their doctor/local medical provider, the provider will commonly tell them: (a) that no testing is available in the timeline required by the regulation, and (b) that the medical provider does not recommend testing given no symptoms and the need to prioritize tests to higher risk individuals.

These complications mean that even well-intentioned employers are at the mercy of medical logistics over which they have no control—unless they can hire their own testing company, which many will not be able to do. As a result, good employers will fail to meet the requirements of the regulation despite doing what they can.

Letter to Legislature

To read the CalChamber letter in full, click here.

Staff Contact: Robert Moutrie