California Virus Worker Safety Rule Survives Legal Challenge (1)

California can continue to enforce its Covid-19 worker protection rule, a state judge ruled.

San Francisco Superior Court Judge Ethan Schulman in a decision Thursday wrote that he was rejecting employers’ request for an injunction to prevent enforcement of the rule by the California Division of Occupational Safety and Health while the challenges to the rule continue.

It’s doubtful the employers would win the challenges and the need to curb the spread of Covid-19 weighed heavily in favor of enforcing the rule, Schulman said in turning down the injunction request. He had heard oral arguments Jan. 29.

Stephen Knight, executive director of the Oakland, Calif., worker advocacy group Worksafe, told Bloomberg Law he was pleased with the decision.

“We look forward to continued enforcement action by Cal/OSHA to protect workers who are putting their lives on the line every day,” Knight said.

Cal/OSHA didn’t respond to requests to discuss the ruling.

Seeking to stop the rule’s enforcement was a coalition of several industry groups, including the National Retail Federation, the National Federation of Independent Business, and the Western Growers Association. Separate lawsuits filed in Los Angeles and San Francisco were merged together for consideration in San Francisco.

The National Retail Federation is still reviewing Schulman’s 40-page decision, the group’s general counsel, Stephanie Martz, said in a phone interview.

If the federation can’t prevail in court, she said, there is hope ongoing meetings of a Cal/OSHA advisory committee will lead to changes in the emergency rule sought by employers—such as setting requirements based on industry’s infection risk level rather than treating all employers the same and ending workplace testing mandates.

In the long term, Martz said, the emergency rule shouldn’t become a permanent rule.

‘Substantial Evidence’

The groups had challenged the emergency rule on several grounds—from the state’s decision to not use the regular rulemaking process to allegations Cal/OSHA exceeded its authority by regulating wage-and-hour issues.

Schulman rejected all of the employer groups’ arguments supporting an injunction.

He wrote that the need for an emergency rule was “supported by substantial evidence” from Cal/OSHA.

The judge noted that the safety agency’s regulations for workers exposed to lead and other toxic substances included similar job security guarantees as the Covid-19 rule.

As for specific health requirements such as employer-provided testing of workers who may have been exposed to the virus while at work and setting requirements for agriculture worker housing, the judge said Cal/OSHA had “exceedingly broad authority” to protect workers.

The groups claimed California wrongly used the emergency rule making process, saying if the rulemaking had started in March, when Covid-19 became a widespread concern, the state could have gone through the normal public hearing and review process and still issued a regulation by the same time the emergency rule took effect—Nov. 30.

Schulman said use of the fast-tracked emergency rule process was “an extremely proper exercise” in response to the growing crisis.

The cases are Nat’l Retail Fed’n v. Cal. Dep’t of Indus. Relations, Cal. Super. Ct., No. CGC20588367, order 2/25/21 and Western Growers Ass’n v. Cal. Occupational Safety & Health Standards Bd., Cal. Super. Ct., No. CPF21517344, order 2/25/21.