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California Covid-19 Worker Safety Rule Challenged in Court (2)

Dec. 17, 2020, 2:40 PM; Updated: Dec. 17, 2020, 10:31 PM

California’s new emergency rule protecting workers from Covid-19 has been challenged in state court by the National Retail Federation and National Federation of Independent Business, which say it imposes potentially “ruinous” costs on employers.

The lawsuit asks a judge to vacate the rule and, in the interim, immediately prevent the state from enforcing the standard while the court considers the case.

The lawsuit, filed Dec. 16 in the Superior Court of California for the County of San Francisco, argues the California Division of Occupational Safety and Health and the state Occupational Safety and Health Standards Board “relied on unsupported speculation” of a connection between reopening workplaces and an increase in Covid-19 cases to justify the rule. The regulation took effect Nov. 30.

The business groups aim, in particular, at the rule’s provisions for paid leave for workers suspected of having been in contact with a coronavirus-infected person. The requirements exceed Cal/OSHA’s workplace safety mandate, the lawsuit says.

The groups also object to testing requirements for workers that are triggered when three employees test positive for the virus, regardless of the number of workers at the work site.

“Especially for small businesses, the obligation to comply with these mandates can be ruinous and poses a legitimate threat to their continued existence,” the lawsuit says.

As of Dec. 17, California had 1.7 million confirmed Covid-19 cases and 21,889 people had lost their lives, according to Bloomberg News.

DIR and DOSH do not comment on pending litigation.

A spokesman for the California agencies said they don’t comment about ongoing litigation.

Timeline Questioned

The lawsuit pointed out that worker-advocate groups petitioned the board May 20 to create the workplace standard, but the board waited until Sept. 17 to assert that an emergency rule was needed.

“In the context of the Covid-19 pandemic and the rapidly changing conditions that have characterized it, four months was an exceptionally long time,” the lawsuit argues.

The business groups also attack the mandates by arguing the state standards board shouldn’t have used an emergency rulemaking, which allowed the regulation to be enacted without public hearings.

The standards board approved the rule Nov. 19, five days after the final proposed draft was published. The regular rulemaking process requires at least 45 days for public comment. The board voted to approve the rule during a virtual public session after hearing about six hours of comments from the public, but there wasn’t a formal public hearing.

The state should have followed procedures for regular rulemaking that require public hearings and comment time, the lawsuit said.

The emergency rule is expected to be the basis for a permanent rule that could be enacted in 2021. That rule would have to go through a hearing and public comment process.

The temporary mandates are in effect for six months, but can be extended while work on a permanent rule continues.

Cause of Action: Request for declaratory and injunctive relief

Relief: Prevent rule enforcement, vacate rule

Attorneys: Aleksandr Markelov, Sarah J. Allen, and Jason S. Mills of Morgan, Lewis & Bockius L.L.P.

The case is Nat’l Retail Fed’n v. Cal. Dep’t of Indus. Relations, Cal. Super. Ct., 12/16/20.

(Adds comment from state agencies in 9th paragraph. )

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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