The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) announced earlier this week an interim enforcement response plan for OSHA Area Offices and compliance safety and health officers during the COVID-19 pandemic. The interim enforcement response plan can be found here.

In part, the enforcement response plan instructs OSHA Offices to communicate with employers through the agency’s “non-formal” procedures by telephone, fax, and email for non-urgent investigations and reporting, to minimize contact. The enforcement response plan encourages OSHA Area Offices to conduct opening conferences, and program and document review electronically or remotely (e.g., via phone) where practicable. Finally, the response plan provides “specific enforcement discretion” for enforcing the Respiratory Protection standard and directs compliance officers to assess an employer’s good-faith efforts to provide and ensure respiratory protection, as available.

As previously reported here, the United Farm Workers and Familias Unidas por la Justicia filed suit against the State of Washington, seeking an Order from the Court that the Washington Department of Labor and Industries and the Washington Department of Health engage in emergency rulemaking to create health and safety standards. The Plaintiffs note that several thousand H-2A workers are expected to arrive in the coming weeks, and say the State has not done enough to protect farmworkers. The Plaintiff’s demands to the State of Washington are summarized in part below as follows:

The United Farm Workers and Familias Unidas por la Justicia filed a Complaint in Washington State, Skagit County Superior Court against the State of Washington seeking an injunction and demanding the State set specific safety guidelines. According to reporting, the Complaint alleges the State’s “Fact Sheets” have both growers and farmworker advocates confused and wasting time, putting farmworkers at risk. The Complaint alleges there are a lack of enforceable rules regarding social distancing, protective face masks, access to soap and water, and cleaning. Bloomberg news also reports that Washington’s health department faced criticism for guidance it issued saying that temporary worker housing facilities with a single room should assign sick occupants to one side and occupants without symptoms to the other side.  The Complaint says that guidance is extremely dangerous to workers. You can read Bloomberg’s reporting here. You can also read the UFW’s press release about the legal action here

As we previously reported here, on April 16, 2020, Governor Newsom issued an Executive Order providing supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for food sector workers who work for a hiring entity that has 500 or more employees nationwide. The leave is available for COVID-19 related reasons. The DIR’s FAQ on COVID-19 Supplemental Paid Sick Leave is available here.

Often, our Ag clients give us a puzzled look when they see a “Force Majeure” Clause (also called “Act of God” Clauses) in the agreements we provide for them or they receive from other vendors. Simply put, a force majeure clause could give a party to the contract a free ticket out of the contract if an unexpected event occurred.

Now the question on everyone’s mind, will Covid-19 trigger an out of contract ticket?

For some background, California courts have found that performance under a contract will be excused under a force majeure clause when there is an unforeseeable event that is outside of the parties’ control and renders performance impossible or impractical.

At his press conference today, April 16, 2020, Governor Newsom announced Paid Supplemental Sick Leave for essential workers in the food sector. According to the Governor, this Supplemental leave only impacts employers not already covered by the Families First Coronavirus Response Act (“FFCRA”), for example, those with over 500 employees. The Governor described the Supplemental leave as a “gap” filler.

The California Paid Supplemental Sick Leave is two weeks of supplemental paid leave, for workers who have contracted COVID-19 or are under quarantine or isolation orders. The program was apparently developed as an effort with the Governor, John Grant, of UFCW Local 770 and Ron Fong, President and CEO of the California Grocers Association.

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