Cal/OSHA’s Emergency Regulation on Covid-19 remains in effect after a court rejected requests from employer groups for a preliminary injunction today. In particular, employer groups sought to enjoin the regulation’s provisions on i) compensation for employees excluded from work; ii) mandated testing; and iii) employer-provided housing and transportation.
In an extensive ruling, the court stated that it was important to maintain employees’ wages and benefits while they are excluded from work because this guarantee helps ensure that employees who have Covid-19 or were exposed to it will notify their employers and stay away from work during the infectious period. The court noted that the regulation’s requirement for wages and benefits applies only to employees who are “otherwise able and available to work,” finding that the regulation does not impose an obligation on employers to pay wages and benefits indefinitely. The court stated that employers are required to exclude employees only for the 14-day quarantine period. If employees become sick and must be excluded for a longer period, they are not “otherwise able and available to work,” and employers would not be required to maintain wages and benefits. In addition, the court noted that employers may offset required payments by amounts employees receive in other benefit payments.
As for mandated testing during defined workplace outbreaks, the court found that the regulation requires employers to provide testing to employees but not that employers must bear the cost. Employers can comply by taking advantage of free testing available to the public.
Finally, the court found that Cal/OSHA has jurisdiction to regulate health and safety in employer-provided housing and transportation.
Employers must continue to abide by the requirements of the Emergency Regulation. If you haven’t already done so, you should review the terms of the extensive regulation. You can also review our prior Client Alert summarizing its important provisions.
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