Cal/OSHA Emergency Regulations – Strike One on An Initial Challenge
Topics: OSHA Issues
Last week, in a tentative ruling, Judge Ethan Schulman of the San Francisco Superior Court indicated that he was inclined to deny a request made by two separate industry groups in two separate consolidated lawsuits filed in order to try to block enforcement of the Cal/OSHA COVID-19 emergency regulations.
As we all know by now, the emergency regulations impose numerous and specific requirements on California employers. These requirements include having a comprehensive written COVID prevention plan, providing for mandatory, company-paid testing any time an employee is considered “exposed” to COVID in the workplace (or anytime an “outbreak” condition exists), providing “exclusion” pay any time an employee is excluded from the workplace due to a “work-related” exposure, and placing the burden on the employer to prove that such an exposure was not in fact, “work related” (more or less creating, via emergency regulation, a rebuttable presumption in favor of the employee).
One of the main criticisms of these emergency regulations is the timing of them. They took a long time to be issued. The first public notice of the draft emergency regulations was published on November 12, 2020, nine months after Governor Newsom issued a state of emergency back in March 2020. Then, after that it became a mad panic to get them implemented where time was not really given to consider them. Only one week was allowed between the issuance of the draft emergency regulations and the Standards Board officially adopting the regulations on November 19th, without a single change being made to the initial text of the regulations. After issuing the draft emergency regulations, the Standards Board only allowed one day for public comment via video conference – on the same day they adopted the regulations. Despite numerous public objections and suggestions on how to better modify the text, the Board still forged on and approved the regulations later that same day.
The combined effect of having an enforceable (and time-tested and approved) Injury and Illness Prevention regulation already in place, when combined with the nine-month delay in issuing any COVID-19 specific safety regulations brings serious questions about whether the COVID emergency regulations even qualify as a bona fide “emergency” regulation. The California Government Code defines an “emergency” as “a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare.” (Government Code section 11342.545.) In the context of Cal/OSHA – which is empowered by statute to enforce workplace safety laws – that necessarily limits the above serious harm to that harm in the workplace.
The National Retail Federation and the Western Growers Association made similar arguments at the oral argument and in their briefs. They further asserted that the regulations failed to properly acknowledge that different types of businesses faced different safety challenges when it comes to Covid-19 and were overly burdensome. These trade associations argued that forcing all employers to abide by the same set of emergency regulations causes unnecessary hardship to those employers that are already in compliance with most of the reasonable precautions and requirements that have already been in place by CDC, industry experts, the state, the general safety rules and orders issues by local municipalities.
Despite these arguments, Judge Schulman issued his tentative ruling denying the challenge. At the oral argument, Schulman ordered the parties to submit additional briefing by this Friday and indicated that he will issue his final ruling sometime after February 11, 2021. We will report back on the final decision on these important cases challenging the Cal/OSHA COVID-19 emergency regulations.