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.

What’s Next for Cal/OSHA COVID-19 ETS:

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.

COVID-19 Enforcement in California:

Without preliminary injunctive relief from the industry legal challenges, there is nothing standing in Cal/OSHA’s way to begin a serious enforcement effort under the emergency temporary standard.  Cal/OSHA had been operating under something of a grace period for employers since the ETS was issued with no roll-out period.  Specifically, Cal/OSHA explained in an FAQ that:

Q: How will Cal/OSHA enforce the ETS as employers implement the rule? 
A: All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.  In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

That grace period through February 1st is over, but still Cal/OSHA has not yet begun to issue citations under the ETS.  That is likely because complex inspections of health hazards, like COVID-19, often take several months to complete, and we still only 3 1/2 months into the life of the ETS.  But that’s not to say Cal/OSHA is not enforcing COVID-19 issues.  As they have throughout the pandemic, Cal/OSHA continues to aggressively enforce COVIVD-19 issues through its IIPP rule, its Aerosol Transmissible Diseases standard for healthcare employers, respiratory protection and PPE standards, and injury and illness recordkeeping and reporting regulations.  Here is a list of all the COVID-19 related enforcement actions Cal/OSHA has issued to date.

But now that Cal/OSHA is no longer concerned about challenges to the legality of the ETS, the two month enforcement grace period has lapsed, and the pandemic still rages in the Golden State, California employers should brace for a significant wave of enforcement of the ETS.  Read up on the requirements of Cal/OSHA’s COVID-19 ETS here, check out our detailed webinar about the ETS, and contact an attorney in Conn Maciel Carey’s national OSHA Practice if you need help coming into compliance with the ETS.