Judge won’t block Cal/OSHA’s COVID workplace rules

Stating that no court in the nation has blocked an emergency COVID-19 public health order except in cases that involved religious services, a San Francisco judge declined Thursday to stop Cal/OSHA from enforcing its virus regulations on workplaces across the state.

"This court will not be the first" in the nation to stop regulations aimed at curbing the spread of COVID-19, Superior Court Judge Ethan P. Schulman wrote in a 40-page opinion. "Lives are at stake."

Schulman rejected preliminary injunction requests from the National Retail Federation and Western Growers Association in their entirety. The groups had filed lawsuits challenging Cal/OSHA's workplace regulations in December, alleging the agency should not have adopted its regulations on an emergency basis, lacked authority to adopt the regulations, and violated the plaintiffs' rights to due process. They also said the regulations were unnecessary and would be financially difficult for businesses to comply with.

The lawsuit filed by the Western Growers Association was initially filed in Los Angeles County Superior Court. 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 regulations went into effect Dec. 1, and require employers to implement prevention, reporting, and record-keeping policies related to COVID-19. The regulations temporarily extend Cal/OSHA's aerosol transmissible diseases standard -- which certain workplaces, including health care facilities and prisons, were required to comply with before the pandemic -- to most workplaces across the state.

In his order, Schulman noted workers in industries that have been hard hit by COVID-19 outbreaks -- including meat and poultry processing, food processing, agriculture, garment manufacturing, warehousing, public transportation, and retail stores -- were previously not covered by the aerosol transmissible diseases standard.

In addition to questioning the process by which Cal/OSHA promulgated its regulations, the National Retail Federation and Western Growers Association took issue with specific rules. These include the requirement that employers test exposed workers, provide paid leave for workers who are in quarantine, and adopt certain safety measures in employer-provided housing and transportation.

Schulman addressed these rules Thursday. "Having found that plaintiffs have not established a likelihood of prevailing on their challenge to the [emergency temporary standard] regulations, the court is also unpersuaded by plaintiffs' fallback argument that it should sever and enjoin only those regulations to which they object," he wrote. "Those provisions ... are at the heart of its attempt to curb the spread of COVID-19. This court will not gut the [emergency temporary standard] regulations on a piecemeal basis."

Even if the plaintiffs were able to show they could prevail on their claims, Schulman said, a preliminary injunction "would not be warranted because both the balance of interim harms and the public interest weigh heavily in favor of continued implementation and enforcement of the [emergency temporary standard] regulations."

The judge also predicted the emergency regulations would only be in effect through the end of September. "With any luck, as the vaccination effort picks up steam and the numbers of new cases, hospitalizations, and deaths continue to drop, California will be out of the woods by that time and the emergency regulations will no longer be needed, at least in their current form," Schulman wrote.