Cal/OSHA’s COVID-19 Emergency Temporary Standard Survives Two Legal Challenges

Posted on March 1, 2021 by Megan Shaked

By Andrew Sommer, Eric Conn, and Beeta Lashkari

On February 25, 2021, Superior Court Judge Ethan Schulman officially ruled on two requests for preliminary injunctions against the implementation of Cal/OSHA’s COVID-19 emergency temporary standard (ETS), denying the injunctive relief sought in both cases.

Two separate legal challenges to the ETS were filed a couple of weeks after the rule was adopted by the Cal/OSHA Standards Board. The first was filed by the National Retail Federation and others, alleging generally that an emergency rule was not necessary and appropriate; i.e., the agency had not asserted facts adequate to establish the existence of an emergency, and therefore, the rushed rulemaking process that ignored stakeholder input was not lawful. It also alleged that Cal/OSHA overstepped its jurisdictional authority with respect to the ETS provisions mandating wage and benefits continuation.

The second legal challenge was filed by the Western Growers Association and other agricultural interests. This lawsuit similarly challenged the legality of an emergency rule in this context and the pay and benefits provisions. It also attacked the provisions regarding employer-provided housing and transportation.

In a 40-page order, Judge Schulman rejected all of the plaintiffs’ arguments, commenting, “No federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations and deaths that follow in its wake. This Court will not be the first. Lives are at stake.” Indeed, the cases faced long odds, with Judge Schulman signaling his intent to deny the injunctive relief sought in both cases on January 28, 2021, noting that the industry challengers had thus far, failed to demonstrate both the potential for irreparable harm and a likelihood of success on the merits. Judge Schulman echoed these sentiments again in his latest Order, stating that plaintiffs have not shown a likelihood of ultimately prevailing on the merits of their claims, and even if they could do so, that “the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS.”

As to plaintiffs’ specific claims, regarding the appropriateness of emergency rule rulemaking, Judge Schulman states in his order that “[p]laintiffs do not serious contend – nor could they – that the COVID-19 pandemic is anything other than a genuine emergency in any intelligible sense of the word[,]” and that “[i]ndisputable data” supports the Standards Board’s finding of an emergency. Additionally, as to plaintiffs’ allegations that the Standards Board exceeded its authority by promulgating the ETS’s testing, exclusion pay, and housing/transportation requirements, Judge Schulman states that “[t]here is nothing novel about the requirement that employers maintain workers’ pay and benefits while they are on medical leave,” indicating that “Cal/OSHA for decades has enforced similar regulations” for exposure to toxic substances and airborne infections diseases.

Employer Takeaways:

Although Jason Resnick, senior vice president and general counsel for Western Growers Association, has indicated than an appeal is under consideration, employers should, if they have not already, fully implement Cal/OSHA’s COVID-19 ETS, regardless of any further legal process.

In the meantime, Conn Maciel Carey and other industry representatives have been finding opportunities to improve the rule through the Advisory Committee process and through direct advocacy with Cal/OSHA to seek helpful guidance.

Additionally, one other avenue that may impact Cal/OSHA’s rule is the work that Fed OSHA is doing right now, in response to Pres. Biden’s Day 1 OSHA Executive Order, to develop a federal COVID-19 emergency temporary standard. Biden’s EO directs Fed OSHA to require the State OSH Plans adopt a COVID rule, if Fed OSHA issues one of its own. To that end, we are organizing a coalition of employers and trade associations to advocate for the best possible federal OSHA COVID-19 emergency temporary standard. One idea that we have already shared with Fed OSHA is that if it issues a rule and requires all the State Plans to follow suit, that it should require the State Plans to adopt an identical rule to whatever Fed OSHA adopts. That would help address the enormous challenge we have all faced throughout the pandemic of trying to comply with the impossible patchwork of competing and contradicting mandates from local and state health departments, governors’ executive orders, state OSH Plan emergency rules, and so on. Fed OSHA could, like it has done for injury and illness recordkeeping, mandate that state OSH Plans “have the same requirements as Federal OSHA” – not the usual “at least as effective” – rather, they must have the same exact requirements. This would drive consistency, but also, would require Cal/OSHA to repeal and replace its rule, which we anticipate will be the much more onerous of the two standards.