Retailers and small business owners have sued the California state government for violating the law by imposing Emergency Temporary Standard rules on employers regarding Covid 19.
The lawsuit was filed Dec. 16 by the National Retail Federation, National Federation of Independent Business and three individual small business employers in the state. The ETS rules had been issued at the end of November by the state’s Division of Occupational Safety and Health (Cal/OSHA).
President-Elect Joe Biden’s team has promised that the federal government will adopt nationwide ETS based on standards that have been already adopted by California, Virginia and Oregon.
The suit challenges the Covid 19 testing requirements imposed by the ETS, which apply equally to employers with five or 5,000 employees and do not provide for adjustment in threshold levels for employers of differing sizes.
The employers assert the new rules were imposed with little advance public notice or opportunity for comment on employers already struggling under other state and local pandemic restrictions. The ETS shifts the burden of testing from public health officials to employers, they add, although no data or science connects Covid 19 spread to the workplace.
They also note that paid leave provisions, which could result in limitless leave for employees, would regulate wages and employee benefits in a way beyond Cal/OSHA’s lawful jurisdiction and creates confusion with a recently passed state law.
Stephanie Martz, NRF’s chief administrative officer and general counsel, observes. “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.”