Flash Report: Lawsuit Seeks to Overturn COVID Standard

Several California agricultural organizations have issued a major broadside against Cal/OSHA’s emergency temporary standard (ETS) about COVID. The lawsuit is seeking to nullify the ETS entirely or several at least vital sections. It also aims to prevent the Division of Occupational Safety and Health from enforcing the standard.

It accuses the Standards Board of engaging in underground rulemaking after the Department of Industrial Relations published an addendum to its finding of emergency after the Office of Administrative Law had approved the emergency rule. The suit alleges that the addendum was backdated to November 19th, when the Board adopted the standard and sent it to OAL, but in fact, it was likely created on December 3rd.

“The ETS does not solve a crisis as much as it creates one,” — Agriculture’s lawsuit

A coalition of Agriculture employers brought the action. Western Growers Association, California Farm Bureau Federation, California Business Roundtable, Grower-Shipper Association of Central California, California Association of Winegrape Grower, and Ventura County Agricultural Association. It was filed in Los Angeles County Superior Court on December 30th.

Another was filed in San Francisco Superior Court on December 18 by the National Retail Federation, National Federation of Independent Businesses, and three individual California businesses. The two suits make many of the same arguments, including:

  • That the Board violated the state Administrative Procedure Act by failing to provide sufficient justification for a finding of emergency;
  • Cal/OSHA overstepped its jurisdiction by regulating wages and sick leave in the ETS;
  • The Board rushed through an emergency regulation many months after the pandemic took hold in California and failed to give stakeholders sufficient chance to comment; and
  • It exposed employers to “ruinous costs” by requiring them to exclude employees who might have been exposed to COVID, with pay.

New Suit Goes Much Further

But the ag suit goes much farther. “These organizations have a compelling need to obtain a judgment of this Court as to their members’ obligations under the ETS, particularly given the regulation’s unique burdens on California Farmers, packers, and shippers,” it argues. Those burdens include the standard’s “no-cost” testing provisions, mandatory workplace exclusion, restrictions on employer-provided housing, and physical distancing on employer-provided transportation.

“The ETS does not solve a crisis as much as it creates one,” the litigants say. “Plaintiffs respectfully request the Court to declare the ETS invalid, or, in the alternative, invalidate and sever” the aforementioned provisions. They say the full application of the standard could deprive growers of already hard-to-find labor and could lead to crops being left to rot in the field.

The suit alleges a “post hoc attempt to paper over the lack of substantial evidence and deficiencies in the record by purporting to amend the Finding of Emergency after the regulation was already in force.” The addendum gives a brief history of Cal/OSHA enforcement of existing regulations as the pandemic progressed, adding that, “Investigations in the field over the summer, along with rising positivity rates, showed that employers were struggling to address the novel hazards presented by COVID-19.”

Despite DOSH guidance, COVID cases “began to rise precipitously in October and November,” the addendum states. “The present threat of exponential growth in COVID-19 cases demand immediate action.”

The plaintiffs say this after-the-fact posting constitutes underground rulemaking because the Board did not hold a public meeting on the addendum. “Either the Board approved the Addendum #1 via ‘serial communications’ with other Board members, in violation of the Bagley-Keene Act and the APA’s prohibition against ‘underground regulations,’ or the Board contrived to add Addendum #1 to the record after the close of rulemaking proceedings, because it concluded (correctly) that the November 19, 2020 Finding of Emergency failed to meet the statutory requirements to demonstrate the existence of an emergency.”

The lawsuit also alleges violations of California and U.S. constitutions related to regulations with “confiscatory” results. “The ETS threatens ruinous consequences for employers,” it states. “Delaying harvests by even a few days could cause a loss of crops which would be economically devastating to growers.”

“It would seem that the OSHSB followed the same procedure as it did when it adopted the wildfire smoke emergency regulation” in July 2019, comments Mark Webb, owner of Prop. 23 Advisors in Pasadena. “One would think the OAL would have raised an issue if there was a procedural defect in the rulemaking effort, which it did not do.”

Click here to download a copy of the complaint.

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