NRF and industry groups challenge Cal/OSHA rulemaking

"These mandates add to the suffering of businesses throughout California."

NRF General Counsel Stephanie Martz

WASHINGTON – The health of employees and customers during the coronavirus pandemic is retailers’ top priority. 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, the state of California’s Division of Occupational Safety and Health on November 30 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.

“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.”

NRF, the National Federation of Independent Business and three small-business plaintiffs filed a lawsuit in California today that challenges the emergency regulations, 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.

About NRF
The National Retail Federation, the world’s largest retail trade association, passionately advocates for the people, brands, policies and ideas that help retail thrive. From its headquarters in Washington, D.C., NRF empowers the industry that powers the economy. Retail is the nation’s largest private-sector employer, contributing $3.9 trillion to annual GDP and supporting one in four U.S. jobs — 52 million working Americans. For over a century, NRF has been a voice for every retailer and every retail job, educating, inspiring and communicating the powerful impact retail has on local communities and global economies.