Business Groups Fail to Block California COVID-19 Workplace Safety Rules

​A California appeals court rejected a challenge to COVID-19-related workplace safety rules brought by a group of agricultural business organizations, concluding that the need to protect workers outweighed any burdens the measure imposed on employers.

The appellate court said the California Occupational Safety and Health Standards Board provided adequate reasons for issuing its emergency temporary standards (ETS), which require employers to implement various safety measures, record and report illnesses, and continue paying workers who have been quarantined.

Six organizations filed suit challenging the ETS and sought a preliminary injunction suspending enforcement pending the outcome of the lawsuit. The trial court denied the request, concluding that the organizations had not shown a likelihood of prevailing on the merits, which is required for the court to issue a preliminary injunction. The trial court also found that the public interest in curbing the spread of COVID-19 weighed heavily in favor of ongoing enforcement of the ETS. The organizations appealed.

Challenge to the ETS

Under the ETS, employers must establish, implement and maintain an effective written COVID-19 prevention program that includes:

• Identifying and evaluating employee exposures to COVID-19 health hazards.
• Implementing effective policies and procedures to correct unsafe and unhealthy conditions.
• Allowing adequate time for hand-washing and cleaning frequently touched surfaces and objects.

Employers must provide effective training to employees on how COVID-19 is spread; infection-prevention techniques; and information regarding COVID-19-related benefits to which affected employees may be entitled under applicable federal, state or local laws.

Employers must investigate and respond to COVID-19 cases in the workplace and notify employees at a worksite of possible COVID-19 exposures.

Employers must continue to pay employees who are excluded from work due to COVID-19 exposure.

The organizations challenged the ETS, claiming that the standards exceeded the board's authority, and they sought to stop enforcement. They argued that the board failed to follow the necessary procedures for emergency rulemaking and that the pre-existing regulatory framework provided adequate protection to employees while the court considered the lawsuit. They also argued that employers faced a real threat of imminent and irreparable harm to their businesses under the ETS.

The board claimed that the organizations had not shown that they were likely to succeed at trial. They also claimed that the harm to employers asserted by the business groups was only speculative, and the public has a strong interest in reducing or stopping the spread of COVID-19 in workplaces.

The appellate court agreed with the trial court and affirmed the denial of the preliminary injunction. The appellate court found that the board had identified an emergency and the need for immediate action.

The board had set forth specific facts indicating a serious risk of harm posed by COVID-19. It identified the significant health risks—such as difficulty breathing; organ failure; damage to the lungs, heart and brain; long-term health problems and death—posed by the virus to certain individuals.

The board also showed the need for immediate action in response to the ongoing threat posed by COVID-19. While existing regulations protected workers from hazards in general, there was no specific regulation that protected all workers from exposure to infectious diseases such as COVID-19, the court said. Therefore, the agency concluded that emergency regulations were required to preserve worker safety and health.

The appellate court also rejected the organizations' claim that the ETS contained provisions that exceeded the board's authority. Under the California Labor Code, the board has exclusive state authority to adopt, amend or repeal occupational safety and health standards and orders. The labor code further grants the board power to issue orders ensuring the safety and health of California employees.

The appeals court concluded that the trial court had properly ruled that the organizations were unlikely to succeed in permanently blocking the standards and that the potential harm to the public from failing to enforce the standards outweighed the possible damage to employers from enforcing them. Therefore, the trial court correctly refused to grant a preliminary injunction, the court said.

Western Growers Association v. Calif. Occupational Safety and Health Standards Board, Calif. Ct. App., No. A162343 (Jan. 12, 2022).

Professional Pointer: The U.S. Supreme Court's recent decision to halt the federal Occupational Safety and Health Administration's COVID-19 temporary rule does not impact enforcement of California's COVID-19 ETS, and employers in the state must comply with the ETS, which have been revised as of Jan. 14.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.