Biz Groups Say Cal/OSHA Virus Safety Rules Ignore Science

By Lauren Berg
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Law360 (December 17, 2020, 9:13 PM EST) -- California's Occupational Safety and Health division failed to rely on science when it adopted emergency standards for employers in an effort to stop the spread of the coronavirus, the National Retail Federation said in a lawsuit filed Wednesday in San Francisco court.

Since March, California employers have implemented "rigorous and science-driven safety measures" to make sure they operate in a manner that protects their workers and the public from the virus, but last month Cal/OSHA and the Occupational Safety & Health Standards Board took it upon themselves to put sweeping emergency regulations in place without public notice, according to the complaint filed by the NRF, the National Federation of Independent Businesses and a group of small businesses.

Cal/OSHA violated the state's Administrative Procedure Act, the business groups said, because the public must have advance notice and an opportunity to comment before regulations can be adopted.

The "Emergency Temporary Standards," which went into effect Nov. 30, require employers to maintain a COVID-19 prevention program that includes identifying employee exposures to the virus, implementing policies to correct unsafe conditions and making sure workers wear face coverings.

Employers must also educate employees on how COVID-19 is spread, infection prevention techniques, and information about any COVID-19 benefits that affected employees might be entitled to under federal, state or local laws, according to the standards.

And if there are multiple COVID-19 infections or an outbreak at their workplace, the standards mandate employers to provide free testing to employees who might have been exposed. Employers must also give exposed workers paid leave to prevent the spread of the virus to other employees and the public, according to the standards.

In their complaint Wednesday, the business groups said they are specifically challenging those standards that require an employer to pay for COVID-19 testing and provide paid leave, saying Cal/OSHA exceeded the scope of its authority to promote occupational safety and health by attempting to regulate wages and paid leave. The groups said that is the domain of the Department of Labor Standards Enforcement and the Division of Workers' Compensation.

"The [Emergency Temporary Standards] regulations apply equally to all employers, regardless of their size or the prevalence of cases for their specific industry, and despite the absence of a proven nexus between COVID-19 positivity rates and workplaces generally," the business groups said. "Especially for small businesses, the obligation to comply with these mandates can be ruinous and poses a legitimate threat to their continued existence."

The business groups said the testing requirement pushes the government's responsibility onto employers, including small-business owners, who aren't often able to shoulder the extra costs.

There's also a lack of science backing Cal/OSHA's decision to implement these emergency standards, the business groups said, as it's just a speculative conclusion that there is a connection between COVID-19 infections and workplaces, particularly retail businesses.

The business groups also said there's no science-backed reason to require employees to be excluded from the workplace for 14 days even if they receive a negative test result after being exposed to the virus. In contrast, the groups said, the Centers for Disease Control and Prevention said quarantine can end after seven days if there is a negative test and no symptoms were reported during daily monitoring.

The suit claims violations of California's Administrative Procedure Act, Occupational Safety and Health Act, the due process clause in the 14th Amendment of the U.S. Constitution and the California Constitution. It seeks a declaratory judgment that the temporary standards are null and void and injunctive relief barring the government agencies from enforcing the standards, as well as litigation costs and attorney fees.

"In its rush to regulate, Cal/OSHA has failed to acknowledge the continuing efforts and safety protocols put in place by retailers to protect their workers and customers," NRF Chief Administrative Officer and general counsel Stephanie Martz said in a statement.

"Instead, Cal/OSHA has improperly exercised its emergency power by imposing costly and confusing regulations with little notice and no substantial opportunity for employers to participate in the process," Martz said.

Representatives for the state government agencies did not immediately respond to requests for comment Thursday.

The NRF, the NFIB and the other businesses are represented by Jason S. Mills, Sarah J. Allen and Aleksandr Markelov of Morgan Lewis & Bockius LLP.

Counsel information for Cal/OSHA and the Occupational Safety & Health Standards Board was not immediately available.

The case is National Retail Federation et al. v. California Department of Industrial Relations, Division of Occupational Safety and Health et al., case number unavailable, in California Superior Court, County of San Francisco.

--Editing by Bruce Goldman.

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