We’re approaching the one year anniversary of the first time that most of us ever heard the term “Covid-19”. Like many of you, I have spent probably hundreds of hours “doom scrolling” through media coverage of the virus and the pandemic. I consider myself fairly well-educated about it. But I have always been concerned that this virus was simply too difficult to understand, even for a college-educated, science-oriented person like myself. And it hasn’t helped that the experts were learning about it in real time as they were communicating the risks to the general public. They got numerous important details wrong in the process, almost ensuring confusion among regular folks.
The state of California, when confronted with a complex pandemic, is making it even harder to navigate. Like every business owner I know, I was shocked and dismayed when Governor Newsom announced that businesses would be held responsible if their employees got sick, triggering Workers Compensation claims and potential OSHA (Occupational Health and Safety Administration) violations. Never before in modern history have businesses been held accountable when their employees catch a highly contagious virus.
Most people spend only a third of their day at work, 5 out of 7 days per week, meaning their employer has no control over the risks and hazards they may be exposed to for most of their lives. An employer can create an otherwise completely safe workspace, and yet employees may still fall ill with Covid due to their activities outside of work. Employees that work together while social distancing and masked might socialize on the weekend without doing so and all get sick. This would create the appearance of an outbreak at work, and the employer would face the prospect of being shut down by the local Health Department and reported to OSHA.
When I attended a webinar on the new Cal-OSHA regulations this week, my dismay about the situation turned to outrage. Not only is the state saddling businesses with an unfair liability in regard to employees who contract Covid, they are tying our hands behind our backs and blindfolding us. Among other truly crazy policies:
— A business must pay for any employees’ Covid tests as well as for the time involved, but has no right to learn the results. We are also required to pay extended Covid sick leave, without actually knowing whether or not a person has the virus. On the flip side, an infected person continue to work without the employer ever knowing they are infected.
— A business cannot ask or require employees to get tested for Covid, even if the employee is known to have been exposed to a sick person.
— If an employee informs the employer that they have tested positive, the business must inform all other employees while simultaneously keeping the employee confidential. This rule is both silly and disrespectful to other employees. It leaves them entirely in the dark as to whether or not they may want to get tested themselves because, remember, the employer cannot suggest or require that an employee get tested. It also creates a possibility of employees demanding to know if their absent co-worker has Covid, and the employer not being allowed to tell them.
— Employers must conduct “contact tracing” to determine if other employees may be been exposed, without somehow revealing which employee has tested positive. This is, quite frankly, impossible.
— Under state quarantine rules, anyone who is exposed to someone who has tested positive for Covid is supposed to quarantine themselves and/or get tested. So in order to follow that rule, a business that is informed of one of its employees testing positive should technically send all potentially exposed employees home to quarantine. If there is only person absent from the workplace when this happens, it is completely obvious which employee was positive.
— Employers are obligated to pay “quarantine pay” for any employees unable to work because they are isolating. This creates perverse incentives. On the one hand, a dishonest employee can falsely claim to be quaranting while continuing to get paid. But OSHA allows the business an exemption from quarantine pay if it shuts down even temporary. So faced with the challenging and legally hazardous task of contact-tracing and navigating a potential outbreak among their employees, a business may very well decide that shutting down and laying off all their employees temporarily — without pay — is both the safest and most cost effective strategy.
In reality, for many people — especially in agriculture — their workplace may be the safest place they spend time. People’s homes, sadly, are often the riskiest places for them. Especially when they live with multiple generations of family. Sending employees home to quarantine for 10 days instead of getting tested makes absolutely no sense from an occupational health or public health perspective.
If someone volunteers to their employer that they have had contact with a person who they later found out tested positive, our only response to them legally is “you have to go home and quarantine”. And if they have possibly exposed their co-workers, we have to send those people home as well.
Once you have closed your business and sent all your employees home — some or most of whom may not be positive for Covid — there is rationally no way to determine when to open your business again. After all, the employer cannot require employees to be tested before they return. It is entirely possible that if you open the workplace again after 10 days, you could be bringing newly infected people back in who would then infect others.
At this point, I know of two farms that have been forced to shut down due to this situation. I didn’t really understand why, until yesterday. Now it seems to me that the state may actually want businesses to shut down completely.
That is the only explanation for the bizarre OSHA policy on vaccination. Of course it is illegal to require employees to be vaccinated. But even if all your employees choose to get vaccinated, and provide you with proof, the business must continue to follow the entire OSHA regulation on Covid safety. There are no exemptions for vaccinated workplaces.
California’s OSHA regulations for Covid 19 don’t protect workers. They are making it more difficult for employers to keep their employees safe, and to help them assist in controlling the spread of the virus. The entire package of rules is under legal challenge and will likely be thrown out by the courts for various reasons. But until that happens, they are putting businesses like ours in an impossible situation.
Thanks for listening,