Cal/OSHA COVID-19–Related Citations May Provide Leverage to Labor Unions and Their Members

A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.

With Cal/OSHA’s continued hard-hitting enforcement efforts across the state and the agency’s issuance of “serious” and “willful-serious” COVID-19–based citations, California employers may be blindsided when organized labor uses workplace safety citations to declare an otherwise illegal strike or walkout as legal.

Here’s how it works. Section 502 of the Labor Management Relations Act of 1947, 29 U.S.C. § 143, provides that employees choosing to withhold their labor will not be deemed to be engaging in an unlawful strike if the reason for their refusal to work is based on a good-faith belief that “abnormally dangerous conditions” exist at their place of employment. Some labor unions have recently taken the position that Cal/OSHA citations support the rights of their members to leave work, refuse to work, or call a strike, even though a collective bargaining agreement and its no-strike clause are in effect at the worksite.

However, in the healthcare industry, the National Labor Relations Act requires labor organizations to provide notice “not less than ten days” before engaging in a strike, picketing, or other concerted refusals to work. Consequently, while organized labor may be able to target employers outside the healthcare industry by attempting to use these citations as a means to call a strike mid-contract, healthcare employers will have the benefit of a 10-day period to abate the hazardous condition. This is an important caveat for California healthcare employers that may be facing this tactic in 2021.

Cal/OSHA citations do not simply represent penalties with monetary impact. Instead, the impact of COVID-19–based citations can reach far beyond a business’s financials to include the labor problems described above, insurance premiums, business reputation, labor relations, contracting with other businesses, and state licensing. Employers may want to take a proactive management approach to all Cal/OSHA investigations, communications, and responses during these COVID-19 enforcement efforts.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California and Workplace Safety and Health blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.