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California Business Groups Want Out of Covid-19 Workplace Rules

Jan. 29, 2021, 1:40 AM

Some of California’s Covid-19 emergency workplace rules are overly burdensome and don’t help slow the spread of the virus, attorneys told a San Francisco Superior Court judge on Thursday.

The National Retail Federation and the Western Growers Association want Judge Ethan P. Schulman to issue a preliminary injunction against Emergency Temporary Standards adopted by the state’s Department of Industrial Relations Division of Occupational Safety and Health.

Before the hearing, Schulman issued a tentative denial of the NRF’s motion, finding the group failed to demonstrate irreparable harm. The balance of harm weighs “heavily in favor of protecting employees’ occupational health and the public interest,” Schulman said.

The two lawsuits seek to block enforcement of provisions that require employers to provide free testing to employees exposed to Covid-19 in the workplace, impose mandatory exclusion and paid-leave requirements, and regulate employer-provided housing and transportation.

The standards place “massively burdensome requirements” on employers without evidence that those requirements will help slow the spread of Covid-19, Jason S. Mills of Morgan, Lewis & Bockius LLP argued on behalf of the NRF. CalOSHA’s Injury and Illness Prevention Program was already in place and implemented to protect employees from Covid-19, and it provides a means for enforcement, he told Schulman at the hearing.

Two new requirements— mandatory testing and paid leave for exposed employees—exceed the agency’s authority, Mills said. Freeing employers from those two requirements won’t lead to increased Covid-19 cases in workplaces, he argued. Other states have implemented regulations that take into consideration employer size, financial status, geographic location, and industry, but California’s regulations don’t differentiate, Mills said.

David A. Schwarz of Sheppard, Mullin, Richter & Hampton LLP represented the Western Growers Association and asked the court to also block provisions regulating employee-provided housing and transportation. The regulations, which dictate things like the distance between beds and the number of people allowed on a bus, border on logistical absurdity when applied to the agricultural industry, Schwarz said. And he asserted that the labor shortage in that industry will be exacerbated by these rules.

Worker Incentives Work: State

The purpose of the rules aren’t to ensure sick employees are compensated but to keep potentially contagious employees out of the workplace, where they become a hazard, the state’s attorney, William Downer, said. The rules incentivize employees to be forthcoming about their exposure, which serves the goal of keeping workplaces safe. Further, the agency has received over 7,000 complaints from Californians about workplace exposure and the failure of their employers to enforce safety rules, it said.

The WGA’s complaint was transferred from the Superior Court of Los Angeles Wednesday. That group made a more compelling argument that irreparable harm would occur in the agriculture industry, Schulman said during the hearing.

The challenged regulations are in effect through September. As vaccination efforts ramp up, California’s Covid-19 cases should be declining, and the regulations won’t be needed in their current form, Schulman wrote. The limited duration of the current regulations undermine the groups’ claim of irreparable harm, he said.

Other courts in California and around the country have held that judges aren’t public health authorities or scientific experts and can’t get involved in the minutia of how agencies decide to protect the public when the stakes are so high, Schulman said. With the exception of cases involving houses of worship, no court has seen fit to interfere with or enjoin regulations intended to protect public health and safety, he noted.

The judge asked the parties for more briefing and said he would issue a decision “shortly thereafter.”

He also said he is inclined to accept friend of the court briefs from several groups, including the United Farm Workers of America, the California Teachers Association, the Transportation Workers Union of America, and the California Labor Federation. The number of briefs is a fair measure of the issues involved and the public interest in those issues, he said.

The cases are Nat’l Retail Fed’n v. California Dep’t of Indus. Relations, Cal. Super. Ct., No. CGC20588367, 1/28/21 and Western Growers Ass’n v. California Occupational Safety and Health Standards Bd., Cal. Super. Ct., No. CPF21517344, 1/28/21.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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