WASHINGTON, D.C. (December 16, 2020) – The National Retail Federation (NRF), the National Federation of Independent Business (NFIB) and three small-business plaintiffs filed a lawsuit against the state of California's Division of Occupational Safety and Health Administration (OSHA). The lawsuit challenges the COVID-related emergency regulations enacted November 30, which include extensive requirements for employers to exclude potentially large numbers of employees from the workplace for unlimited periods of time and with pay and to provide free testing for employees under some circumstances, regardless of the availability of tests or timing of test results.
The lawsuit argues that Cal/OSHA did not have jurisdiction to implement requirements for paid leave, which could result in limitless leave for employees and create significant confusion with a recently passed law as well as other leave-related obligations. The emergency rule also shifts the burden of testing community members from public health authorities to employers, even though there is no data or science to connect COVID-19 spread to the workplace.
“These mandates add to the suffering of businesses throughout California. With this emergency rule, the state is shifting more of the cost of public health and safety onto the backs of employers, many of which have been instructed to close at differing times this year,” NRF Chief Administrative Officer and General Counsel Stephanie Martz said. “Even the most well-intentioned employer could find itself unable to implement these costly rules and be forced to close. Job losses will accelerate as businesses close in communities large and small.”
Cal/OSHA was created to regulate hazards created by the nature of a workplace, but the virus enters workplaces from the outside and the state has failed to provide any studies showing that employers in general or retailers specifically are the source of community spread of the virus.
“In its rush to regulate, Cal/OSHA has failed to acknowledge the continuing efforts and safety protocols put in place by retailers to protect their workers and customers, not to mention the extensive reopening criteria developed by the governor,” Martz said. “Instead, Cal/OSHA has improperly exercised its emergency power by imposing costly and confusing regulations with little notice and no substantial opportunity for employers to participate in the process.”
The health of employees and customers during the coronavirus pandemic is retailers’ top priority, NRF said in a statement. From the outset of this health crisis and despite often contradictory and vague guidance from municipal, state and federal authorities, retailers have devised and implemented quantifiably effective safety procedures to protect their workers, their customers and the communities they serve.
Against that backdrop, Cal/OSHA enacted sweeping, unworkable and burdensome emergency COVID-19 related mandates upon California’s already struggling employers with little advance public notice or opportunity for comment.