Calif. Grower Groups Say Cal/OSHA Can't Enforce Virus Rules

By Lauren Berg
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Law360 (January 4, 2021, 6:18 PM EST) -- California's Division of Occupational Safety and Health didn't provide any evidence supporting the need for emergency standards it adopted in an effort to stop the spread of the coronavirus, a group of California agriculture business associations said in a lawsuit filed last week in state court.

Cal/OSHA and the Occupational Safety & Health Standards Board didn't give a "reasoned explanation" as to why the emergency regulations are necessary or why they waited months before deciding to promulgate the rules with five working days' notice, according to the complaint filed Dec. 31 by the Western Growers Association, California Farm Bureau Federation, California Business Roundtable, Grower-Shipper Association of Central California, California Association of Winegrape Growers and Ventura County Agricultural Association.

The groups asked the court to block the emergency safety rules, claiming the state agencies violated California's Administrative Procedure Act by not providing an opportunity for public comment and exceeded their authority when implementing the rules.

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 any COVID-19 benefits that affected employees might be entitled to under federal, state and local laws, according to the standards. And if there are multiple COVID-19 infections or an outbreak at a workplace, the standards mandate that employers 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 suit, the agricultural and business groups said the emergency regulations impose a unique threat to the agricultural industry by making employers pay for COVID-19 testing during their employees' work hours, pay workers to stay home if they were exposed to the virus, and impose capacity restrictions on employer-provided housing and transportation.

The groups called some of the new rules "absurd," including one requiring that employers make sure that unwashed dishes, drinking glasses and eating utensils are not shared by workers living in employer-provided housing. They also said some of the rules, like continuous testing of workers, are unrealistic in remote areas where COVID-19 testing is limited.

Before these measures were implemented, the U.S. Centers for Disease Control and Prevention permitted essential employees, including agricultural workers, to continue working following a potential exposure to the virus as long as they remained asymptomatic and additional precautions were taken, according to the suit.

"But the ETS uses 'COVID19 exposure' as a per se metric to exclude workers from the workplace, regardless of whether exposure was indoors or outdoors, the duration and proximity of exposure, whether the infected person was coughing, singing or shouting, whether the infected person displayed symptoms (thus increasing the likelihood of viral shedding), or whether the employees were wearing masks, respirators, face shields or other PPE," the groups said.

The groups said the OSHSB has conceded that California employers already have to have a written and effective injury and illness prevention program that complies with existing guidance that already applies to COVID-19. But the board still justifies the emergency rules on the basis that the public would benefit from a specific set of regulations or that the rules would strengthen enforcement efforts related to COVID-19 in workplaces, according to the suit.

But the groups said that convenience or expedience aren't enough to justify emergency regulations.

The board never said there is a systemic failure of compliance with existing COVID-19 workplace safety guidance or that the lack of new virus-related regulations has hobbled Cal/OSHA's ability to enforce standards that require employers to take all steps necessary to mitigate the spread of the virus, according to the complaint.

"The Board's failure to consider the ETS's disastrous impacts on essential industries such as agriculture, food processing and distribution, illustrates the extent to which this agency inserted itself into areas far beyond its competence or authority to regulate," the groups said.

Starting Jan. 1, the groups said, the emergency regulations define an "exposed workplace" to include "the building, store, facility, agricultural field or other location where a worker worked during the infectious period." That means every farmworker or any employee who works in a vital link of the food supply chain could potentially be excluded from work if they are exposed to the virus, according to the suit.

"The resulting labor shortages in an already scarce farm labor market could have catastrophic consequences across every part of this critical infrastructure sector," the groups said.

The emergency regulations will impact grocery stores' ability to provide fresh milk, meat and produce, according to the suit.

When the pandemic first hit, the groups said, the agricultural industry had no choice but to stay open and figure out how to deal with the virus, becoming a leader in developing best practices based on actual experience.

The suit claims violations of the California Occupational Safety and Health Act, the state APA, the Bagley-Keene Open Meeting Act and the U.S. Constitution. The groups are seeking a declaration that the emergency regulations are invalid, injunctive relief and attorney fees.

Dave Puglia, the president and CEO of Western Growers, said in a statement last week that California farmers and processors moved quickly to implement dramatic new safety procedures to stop the spread of the virus in the workplace. He said that while those measures helped reduce transmission in the workplaces, the virus has continued to spread through communities.

"The Board imposed unrealistic, unfounded and economically harmful standards in total disregard of these realities," Puglia said. "We have no choice but to seek judicial relief."

Christopher Valadez, president of the Grower-Shipper Association of Central California, echoed Puglia's comments, saying in a statement that there are unconsidered mitigation steps that have and would continue to protect farm workers while allowing them to continue working.

"As this pandemic has shown us over the last several months, it is imperative that science and data drive policy," Valadez said.

Jamie Johansson, president of the California Farm Bureau Federation, said in a statement that the emergency regulations will disrupt food supply operations and will be hard on 20,000 small family farming members.

"This ETS was drafted behind closed doors, adopted without meaningful public scrutiny and imposed without giving employers a chance to explain why these rules needlessly threaten continuity of operations in critical infrastructure businesses in California, including every link in the nation's food supply chain supported by our state's meat, dairy, agricultural and food processing industries," the groups' attorney David Schwarz of Sheppard Mullin Richter & Hampton LLP told Law360 on Monday.

Cal/OSHA and the board said they do not comment on pending litigation.

Last month, the National Retail Federation, the National Federation of Independent Businesses and a group of small businesses filed their own suit challenging the emergency regulations, saying Cal/OSHA and the board failed to rely on science when adopting the new standards.

The agriculture groups are represented by David A. Schwarz, Kent R. Raygor and Barbara Taylor of Sheppard Mullin Richter & Hampton LLP.

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

The suit is Western Growers Association et al. v. California Occupational Safety and Health Standards Board et al., case number 20STCP04292, in the Superior Court of the State of California, County of Los Angeles.

--Editing by Breda Lund.

Update: This story has been updated with a comment from the plaintiffs' counsel.

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