Published Dec 18, 2020
In late November, 21 pages of new workplace regulations from Cal/OSHA took effect that have serious implications and consequences for virtually all public and private employers, including most churches.
Also, a new section will also be added to the Labor Code effective January 1, 2021. While the new Labor Code section probably has little implication for most churches, the new Cal/OSHA regulations are going to apply to more than 90% of all congregations. The regulations are intended to protect workers, but can be costly for smaller organizations.
Certain provisions, such as those requiring employers to inspect employer-provided housing following an exposure or outbreak – which includes a parsonage for the pastor provided by the church, on or off the church premises. There is also the potential for having to provide alternate living quarters at church expense for such an employee if it could mean reducing the spread of the disease.
Although the majority of churches rely heavily on volunteers as workers rather than employees, the regulations do not extend to such volunteers. Volunteers are persons who perform services for the church related to its exempt purposes without an expectation of compensation in any form so be careful about giving gifts to volunteers, otherwise they might be deemed an employee.
A pastor who receives any manner of compensation from the church is an employee of the church, even if he has no taxable wages because all of his compensation is paid in the form of housing allowance. These new regulations still apply to the church. The only exceptions provided for most employers: (1) “Places of employment with one employee who does not have contact with other persons,” (2) “Employees working [exclusively] from home.” Pastors would almost certainly not meet either exception.
There are also exclusions from the workplace and sick leave mandates written into the regulations. “Employers shall exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.” The exposure does not have to occur in the workplace. Other state and federal laws may mandate continuation of an employee’s compensation while they are excluded from the workplace, and an employee could be required to use accumulated paid sick leave first.
Perhaps the most difficult part of compliance with the new regulations, however, is the creation and implementation of an extensive written plan that covers all aspects of the workplace and employee safety regarding COVID-19 exposures, and their prevention or mitigation.
There are extensive reporting requirements, many of which are not going to be familiar to churches, as well as quarantine and isolation requirements for persons who are symptomatic, have tested positive for COVID-19, or who are known to have been exposed to another person who was symptomatic or tested positive.
Employers are also required to provide COVID-19 tests at no cost to employees, during work hours, up to twice a week for the “duration of an outbreak” – defined as infections of three or more employees in a 14-day period – the duration ending when 14 consecutive days without a new exposure among workers has elapsed – a period that could possibly extend to more than a month. Only those employees who were not in the workplace during the period of the outbreak are exempt from this testing requirement. Although the Families First Coronavirus Response Act mandates that insurance companies provide insureds with COVID-19 testing without cost sharing (copays, coinsurance, or deductibles), the Cal/OSHA mandate is different, and employers cannot require employees to use their health insurance to provide the test. Unless the local county health department can provide the required testing at no cost, it is possible that an employer would have to pay for these workplace tests – an expense of up to $100 per test or more – without any economic assistance from the state.
There is no way to tell exactly what the effect of these regulations on employers’ insurance contracts will be. It is unclear whether Workers’ Compensation or General Liability insurance would cover the costs of testing. Lawsuits against insurance companies for failure to cover are being dismissed by the courts. Challenging government entities through litigation is prohibited under the doctrine of “sovereign immunity.” It appears that employers have been forced into yet another no-win situation.
The regulations provide for nominal civil fines for violations, but they also permit legal actions to be brought under California’s Private Attorney General Act (“PAGA”), a law that allows injured persons or their representatives (as in the case of a deceased worker, or workers represented under a collective bargaining agreement) to file a lawsuit – usually in the form of a class action – as if they were representing the State of California.
Once such a case is filed, the Attorney General’s office has the first right of refusal to take over the case. In most instances, PAGA cases are handled by attorneys in private practice or who work for labor unions looking for employers with deep pockets from which to extract large punitive damage awards which are never covered by insurance. Civil fines awarded in a PAGA action are generally required to be turned over to the state, saving the state the time and expense of litigation, but any punitive damages awarded go to the plaintiffs and their attorneys.
While small churches are unlikely to be visited on a “routine basis” by a Cal/OSHA inspector or to face such complaints or PAGA lawsuits, nothing should be considered off the table. An exposure incident leading to an outbreak in which three or more persons test positive for or develop symptoms of COVID-19 in a 14-day period must be reported and is surely going to be investigated – even if it occurs in a small church. The inability to show the required written plan and evidence that the plan is being followed and adhered to will almost certainly result in administrative fines or worse.
While this brief article does not even begin to dive more deeply into the specifics of the new regulations, there is also a short provision in the opening statements of the regulations that could open the door to widely disparate additional requirements from one county to another: “Nothing in this section is intended to limit more protective or stringent state or local health department mandates or guidance.” So, beyond these new Cal/OSHA regulations, you will also need to monitor state and local health orders that may impose additional burdens on the church as an employer.
Because of the complexity of designing a Protection and Response plan and the individual characteristics of a church, CSBC is not able to assist in the development or implementation of such plans. However, CSBC’s labor law firm, Littler Mendelson PC, has offered to customize a compliance plan for your church at a one-time cost of $800. Costly? Yes, but invaluable in the event of a COVID-19 outbreak.
For additional questions or concerns, contact the Human Resources & Church Compliance Ministry by calling 559-256-0858 or emailing hrcc@csbc.com.