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Employers' Bid To Trim Calif. Virus Regs Meet Skeptical Judge

By Hannah Albarazi · January 28, 2021, 11:03 PM EST

San Francisco - A California state judge indicated Thursday he's unlikely to grant the National Retail Federation and the Western Growers Association's bid to preliminarily enjoin California's Occupational Safety and Health division's COVID-19 emergency regulations for employers, saying such a move by the court could have dire consequences for public health.

But attorneys for retail business groups and agriculture business groups urged California state Judge Ethan Schulman to block the emergency regulations requiring employers in the state pay for exposed workers' COVID-19 tests and paid leave, saying Cal/OSHA overstepped its authority and is making businesses bear the costs of a pandemic.

At the outset of Thursday's hearing, before taking oral arguments, Judge Schulman said he was tentatively inclined to deny the preliminary injunction bids in both the case brought by retail businesses and the case brought by agriculture businesses.

Judge Schulman said throughout the hearing that Cal/OSHA and the Occupational Safety & Health Standards Board appeared to be doing its best to stop the spread of the coronavirus.

He said the courts have essentially said that judges are not public health authorities or scientific experts and that he didn't think he could get "involved in the minutia of how an agency decides how to try and protect the public where the stakes are so high and so serious."

Judge Schulman said he read over all the cases he could find from the past 10 months related to challenges to pandemic-era regulations and said that with the exception of a handful of cases related to religious institutions, he found "there is no court, state or federal" that he's aware of "that has seen fit to interfere with or enjoin regulations that are intended to protect public health and safety."

"The consequences of a wrong decision could be so dire," Judge Schulman said, encouraging the plaintiffs to try to convince him otherwise.

The National Retail Federation, the National Federation of Independent Businesses and a group of small businesses brought their suit against Cal/OSHA in December, contending that the government agency failed to rely on science and exceeded its authority when implementing California's Emergency Temporary Standards, which went into effect Nov. 30.

A separate suit brought 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 in early January contends that that the government agency put sweeping emergency regulations in place without public notice, in violation of the state's Administrative Procedure Act.

Under the rules, if multiple COVID-19 infections or an outbreak occur at a workplace, California employers must 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.

Both suits claim that the COVID-19 testing requirement pushes the government's responsibility onto employers, including small-business owners, who aren't often able to shoulder the extra costs.

They say Cal/OSHA didn't provide any evidence supporting the need for the emergency standards it adopted.

But during Thursday's hearing, California Deputy Attorney General William Downer stressed that the government's objective is to protect workers — who often have no choice but to show up for work in person — from the workplace spread of the virus.

Downer said the existing illness and injury prevention plans were not doing enough to protect workers and that while the virus' harm to employers is finite, the harm to individual workers is not.

The industry groups have not shown the irreparable harm needed to obtain an injunction, Downer told the judge.

Jason S. Mills of Morgan Lewis & Bockius LLP, attorney for the retail businesses and groups, argued that the state's emergency requirements are punishing employers by putting "a massive, business-threatening burden on them" without providing evidence to support their regulations.

He said the regulations are especially burdensome for small businesses.

The agriculture groups' attorney, David A. Schwarz of Sheppard Mullin Richter & Hampton LLP, added that in the food industry, compliance with these emergency regulations could result in insolvency or interruption to the U.S. food supply.

The judge didn't issue an order and instead allowed the parties to provide him with further briefing.

Counsel for the business groups declined to comment. 

Representatives and counsel for the agricultural groups and representatives for the government did not immediately respond to requests for comment Thursday afternoon. 

The retail groups and retail businesses are represented by Jason S. Mills of Morgan Lewis & Bockius LLP.

The agriculture groups are represented by David A. Schwarz of Sheppard Mullin Richter & Hampton LLP.

Cal/OSHA and the Occupational Safety & Health Standards Board is represented by Deputy Attorney General William Downer of the California Department of Justice.

The cases are National Retail Federation et al. v. California Department of Industrial Relations, Division of Occupational Safety and Health et al., case number CGC-20-588367, and Western Growers Association et al. v. California Occupational Safety and Health Standards Board et al., case number 20STCP04292, both in Superior Court of the State of California, County of San Francisco.

--Additional reporting by Lauren Berg. Editing by Michael Watanabe.

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