A coalition of agricultural and business employers has filed a lawsuit in Los Angeles Superior Court challenging the emergency temporary standards (ETS) approved on Nov. 30 by the California Occupational Safety and Health Standards Board (Cal/OSHA) to combat the spread of COVID-19 in the state.
The plaintiffs, which include the California Association of Winegrape Growers, the California Business Roundtable, the California Farm Bureau Federation, the Grower-Shipper Association of Central California, the Ventura County Agricultural Association, and Western Growers, allege in the lawsuit that the Cal/OSHA lacks statutory authority to impose many of the measures, which the groups describe as “unprecedented and sweeping.”
According to a Dec. 31 statement, the groups charge that the ETS were adopted “with little public notice or opportunity for comment,” and “create significant new obligations and liabilities” for California farmers and businesses. “The practical effect of these emergency standards is to shift the public health and economic costs of COVID-19 monitoring, investigation, compliance, and remediation onto employers, all without any consideration of the financial damage inflicted on businesses already struggling to recover from the pandemic,” the statement says.
A fact sheet prepared by the groups describes several standards in the ETS that they regard as infeasible, including requiring employers to offer free testing to all employees in cases where there has been as few as one COVID-19 case in the workplace; requiring additional testing, investigation, correction, and notification when there is an “outbreak” in the workplace; requiring employers to remove “exposed” workers for 10 days, regardless of the results of a COVID-19 test or the circumstances of the exposure, which the groups argue is a violation of CDC guidance for isolating critical infrastructure workers; and requiring employers to continue to pay exposed workers indefinitely, with the paid time-off requirement not limited to one potential workplace exposure or to a set number of hours of paid leave.
The complaint also alleges that the ETS do not require a negative COVID-19 test for an employee to return to work, and prohibit employers from mandating a test before employees return to work. In addition, the groups state that the standards impose unworkable social distancing requirements for employer-provided transportation and housing, which will have a “disproportionate impact on California farmers and their employees” and “substantially reduce and eliminate vitally needed housing during a statewide housing crisis.”
“These regulations will disrupt food supply operations all along the line, but it will be especially hard on our 20,000 small family farming members,” said Jamie Johansson, President of the California Farm Bureau Federation. “They and their employees are the unsung heroes of the pandemic but once again, they must react to a rule handed down by fiat instead of going through a deliberate regulatory process where the voices of farmers would be heard. We hope the court forces government to follow the law.”
The lawsuit seeks to have the court declare the ETS invalid, or to invalidate and sever those provisions that exceed Cal/OSHA’s authority, conflict with existing local and state public health directives, or violate the California Administrative Procedure Act, the Bagley-Keene Open Meeting Act, and the Due Process Clauses of the California and U.S. Constitutions.