Judge Allows Cal/OSHA COVID-19 Standards to Remain in Place

By Kevin D. Bland, Karen F. Tynan, and Jennifer Yanni © Ogletree Deakins March 9, 2021
LIKE SAVE
woman wearing safty gear

On Feb. 25, San Francisco Superior Court Judge Ethan Schulman denied applications for preliminary injunctions in their entirety requested by two plaintiffs, thus leaving in place the California Division of Occupational Safety and Health's (Cal/OSHA's) COVID-19 Emergency Temporary Standards (ETS). The ETS took effect on Nov. 30, 2020.

Schulman found that the plaintiffs had not met their burden of showing that they would likely prevail on the merits of the case. He concluded that Cal/OSHA's Occupational Safety and Health Standards Board had the authority to promulgate the ETS because the COVID-19 pandemic had created an emergency. The judge held that the court was required to accord "substantial deference" to the agency's finding of an emergency, and he declined to "second-guess" the Standards Board's actions in addressing the pandemic.

In response to the plaintiffs' argument that the emergency rulemaking process should have begun in March 2020, rather than later in the year, Schulman cited data provided by the California Department of Public Health, namely that "on March 4, 2020, when Governor Newsom issued his proclamation of a state of emergency, California had 53 confirmed cases and one reported death" from COVID-19, while "[b]y Nov. 19, 2020, when the Board issued its Finding of Emergency, those numbers had risen to over one million confirmed cases (1,059,267) and 18,466 deaths."

The plaintiffs' second argument was that an injunction was necessary to prevent irreparable harm, which outweighed any interim harm to the public and the public's interest in the continued implementation and enforcement of the ETS. Schulman found that the plaintiffs' argument that the ETS were largely unnecessary because they "needlessly duplicate[d] safety protocols that were already in place" did not demonstrate a "credibl[e] conten[tion] that complying with them pose[d] a threat of irreparable harm." Schulman also found that the ETS would only be in effect through September 2021 and that it was foreseeable that California "[would] be out of the woods by that time and the emergency regulations [would] no longer be needed." In addition, the judge reasoned that the plaintiffs had "overstate[d] the obligations imposed on employers by the ETS Regulations," as the plaintiffs did not provide evidence that compliance would be "financially burdensome."

In response to the plaintiffs' arguments, Schulman concluded that enjoining the Standards Board from enforcing the regulations would "threaten[] to seriously jeopardize worker safety and the public health." The judge offered two considerations in support of this finding: (1) that "'[s]temming the spread of COVID-19 is unquestionably a compelling interest'" and (2) "[t]he judicial deference to which a state agency is normally entitled is, if anything, heightened in the current circumstances of the response to an extraordinary and rapidly changing health crisis."

California employers other than those employers governed by the Aerosol Transmissible Diseases Standard remain covered by the ETS.

Kevin D. Bland and Jennifer Yanni are attorneys with Ogletree Deakins in Orange County, Calif. Karen F. Tynan is an attorney with Ogletree Deakins in Sacramento, Calif. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission. 

LIKE SAVE

SHRM HR JOBS

Hire the best HR talent or advance your own career.

Break California’s intricate labor code.

Successfully interpret and apply California employment law to your organization’s people practices.

Successfully interpret and apply California employment law to your organization’s people practices.

REGISTER NOW

SPONSOR OFFERS

HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.