Judge unlikely to block Cal/OSHA virus workplace rules

A San Francisco Superior Court judge has tentatively rejected two preliminary injunction motions filed by business and agriculture groups, who had asked the court to stop Cal/OSHA from enforcing its emergency COVID-19 workplace rules.

San Francisco Superior Court Judge Ethan P. Schulman issued the tentative rulings to counsel before a three-plus hour hearing Thursday, during which the National Retail Federation and Western Growers Association separately argued the Cal/OSHA rules were burdensome for already-struggling employers, failed to acknowledge that different types of businesses face different challenges, and include provisions that exceed the state agency's authority. National Retail Federation et al. v. California Department of Industrial Relations, et al., CGC20588367 (S.F. Super. Ct., filed Dec. 16, 2020). Western Growers Association, et al. v. California Occupational Safety, et al., CPF21517344 (S.F. Super. Ct., filed Jan. 27, 2021).

The emergency rules went into effect on Dec. 1, and require employers across the state to implement certain prevention, reporting, and record-keeping policies related to COVID-19. Workplaces with a single employee, employees who are working from home, and workplaces that are already covered by Cal/OSHA's aerosol transmissible diseases standard, such as health care facilities and prisons, are exempt from the rules.

In Thursday's hearing, Schulman said while he believed the two plaintiffs were representing employers that made real efforts to protect their employees, some employers likely didn't do the same. "I think it's fair to assume that not everybody everywhere is necessarily adhering to the same standards," Schulman said. "Whether it's an underground nightclub, whether it is a meeting hall where weddings are held, whether it's a bar or restaurant -- and deliberately violates the shelter in place and other orders for the sake of profit."

Prior to approving the emergency rules in November, Cal/OSHA already required employers to establish and implement an injury and illness prevention program to protect employees from hazards, including infectious diseases, said Morgan, Lewis & Bockius LLP partner Jason S. Mills, who represented the National Retail Federation in Thursday's hearing. The agency's new rules "put into black letter the same requirements that were already in place through the IIPP, and then they added onto that, and they pushed this frankly as far as they possibly could enforcement-wise," Mills said. "They imposed massively burdensome requirements on employers without evidence that those requirements are going to help."

"Employers are not saying there shouldn't be COVID-19 protocols. They were already in place and employers had been following them and they'll continue to follow them," Mills said, adding that two of the new rules -- paid leave for exposed employees and mandatory testing -- were especially burdensome.

David A. Schwarz, a partner at Sheppard, Mullin, Richter & Hampton LLP, meanwhile argued the farmers represented by the Western Growers Association would have a very hard time following Cal/OSHA's social distancing rules for employee housing and transportation, partly because existing regulations from other agencies would prevent farmers from effectively following Cal/OSHA's standards.

Schulman asked if Schwarz's argument was that his clients were more likely to be harmed by the Cal/OSHA rules than Mills' clients, who are retailers, because Schwarz represents essential businesses. There's a "difference between your clients, which are part of this essential infrastructure, and the potential effect of these regulations on the food chain... and our ability to go to Macy's if we want to go shopping in person," Schulman said. "There's a stronger showing of irreparable harm in your clients because of the nature of their business."

Schwarz responded, "There is a stronger or certainly a different showing of irreparable harm. But both the retailers and the farmers, the meatpackers, and food processors have this in common: there isn't a scintilla of recognition in this record that would draw the distinction you just so artfully did between that which is essential."

Pointing to Virginia, Michigan, and Oregon, Schwarz added these "three states so far... have issued emergency temporary standards. They all recognized that there are levels of what might be at risk. And those levels of risk have to be balanced against the importance of the task at hand."

The Western Growers Association's lawsuit was originally filed in Los Angeles County Superior Court, but was moved to San Francisco because its claims overlapped with those of the National Retail Federation.