Labor

As hospitals under the federal Occupational Safety and Health Administration (OSHA) authority have been actively implementing the emergency temporary standard (ETS) released on June 10, the American Hospital Association has been encouraging hospitals to comment on the regulation, arguing that the “OSHA COVID-19 ETS would jeopardize … the collective efforts by the field to follow the science-based … guidance issued by the Centers for Disease Control and Prevention …”

A recent California Supreme Court decision on meal, rest, and recovery period violations could have major implications for many of the state’s employers — including hospitals.  

Under current law, an employee who does not receive a meal, rest, or recovery period is owed “one additional hour of pay at the employee’s regular rate of compensation.” For many labor attorneys, this was interpreted to mean an additional hour of pay at the employee’s base pay rate — that is, the employee’s hourly pay rate, not including overtime compensation or bonuses. However, under a recent California Supreme Court decision, this is no longer permissible. 

On July 15, the court ruled unanimously in Ferra v. Loews that the requirement of an additional hour of compensation at the employee’s “regular rate of compensation” has the same meaning as “regular rate of pay,” requiring the inclusion of overtime and bonuses with the employee’s base pay rate. As this ruling is retroactive, hospitals that compensate missed meal, rest, and recovery periods solely based on the employee’s base pay rate are out of compliance with the law and may face significant legal liability.  

CHA encourages all hospitals to review their pay practices to ensure they are in full compliance with the law and to reach out to their California labor law counsel with any questions.  

On June 8, Cal/OSHA submitted emergency regulations to the Office of Administrative Law to define “normal consumption.” As currently drafted, the emergency regulation defines “normal consumption” as the average consumption of specified personal protective equipment (PPE) type and size over a two- year period, with a 200% cap. This approach raises significant concerns, as CHA believes that this definition does not reflect statutory intent.  

CHA has submitted comments to the Office of Administrative Law (OAL) on Cal/OSHA’s June 8 emergency regulations pertaining to the stockpile of personal protective equipment (PPE), which define “normal consumption” as the average consumption of specified PPE type and size over a two-year period, with a 200% cap.