Two lawsuits in the San Francisco Supreme Court challenge the legal authority of the new COVID-19 worker safety requirements passed by the California Occupational Health and Safety Standards Board (Cal / OSHA) in November. A judge heard arguments on the two cases on Thursday and will decide next week whether the new regulations should be blocked.
In a complaint, the National Retail Federation argues that regulations on paid vacation for exposed employees and mandatory testing for small businesses are detrimental and would not prevent the spread of COVID-19, which has largely taken place outside of workplaces.
In another case, a coalition of agricultural groups led by the Western Growers Association is making the same arguments and trying to regulate the accommodation of agency workers and transport to work.
In addition to Western Growers, the plaintiffs include the California Farm Bureau, the California Business Roundtable, the California Association of Winegrape Growers, the Grower-Shipper Association in central California and the Ventura County Agricultural Association.
“From these farmers’ point of view, compliance would actually mean a likely risk of bankruptcy and certainly the likely prospect of disruption to the food supply chain, ”said David Schwarz, the coalition’s attorney.
The arguments of the two attorneys concerned largely the same reason as the all-day hearing when the Cal / OSHA board of directors approved the emergency standards.
Judge Ethan Schulman immediately dug himself into the National Retail Federation‘s arguments they name “schizophrenic ”for claiming that the regulations duplicate existing standards and are simultaneous “massively burdensome. “
Attorney Jason Mills argued on behalf of the association that most regulations codify existing Cal / OSHA guidelines, but the board has also pushed the enforcement of paid vacation and testing too far, forcing employers to focus less on actual protection focus of workers.
David Schwarz of Sheppard, Mullin, Richter & Hampton LLP
Both lawsuits challenged the need for an emergency standard. While Mills acknowledged that the pandemic is a global emergency, he said that alone is not a sufficient reason to add more regulations. Both attorneys picked up the fact that board members couldn’t find evidence that the vast majority of California workplaces don’t already meet COVID-19 spread control requirements.
“What an employer can’t control is what someone does for the other 16 hours of their day, ”said Mills. “They may not spread it when they sleep, but they do when they are at Thanksgiving dinner and they are [if] You are out with friends. “
Schulman countered that Western Growers could attribute a small number of farm worker infections to non-work exposures. He asked if this type of evidence would relieve a company of the need to provide paid vacation and benefits as required by the regulation. Mills responded that the regulation actually encourages employees to say that the exposure is from work, which starts a fight with the employer. He added that a worker could say he lost his sense of taste for 90 days – a recognized symptom of the virus – and still qualify for a full pay, full-service vacation, which could destroy a small business.
William Downer, the state‘The attorney argued that the regulation is not about tracing infections to the source, but about keeping potentially infectious employees out of the workplace. The compensation paid should ensure that the employee is not afraid of loss of income if they report an illness or take positive tests. Without employer testing, workers would have to rely on their own devices to test, he added.
Downer described the board as “quasi-legislative body ‘which does not require scientific studies to demonstrate the need for regulation when it has been identified “an over-representation of temporary workers who tested positive “and more than 7,000 complaints to Cal / OSHA. Mills said the board never explained what these complaints were about, whether they were well founded, and whether the regulation had addressed the concerns.
Downer stated that Cal / OSHA investigation over the summer and statements at the board hearing – including workers from the Foster Farms outbreaks – indicated that the previous regulatory strategy was unsuccessful and new enforcement tools were needed.
Schulman realized that the Ag coalition had a much stronger argument for irreparable harm to farmers than retailers.
Schwarz responded to this thought, saying that the clearance requirements for transportation would reduce half the workforce that could be brought to a construction site by bus, further exacerbating the existing labor shortage.
“In our country there are not enough buses that can be identified and purchased in a reasonable time, ”said Schwarz. “There are not enough licensed drivers. There aren’t enough hours in a day to get people from one place to another. “
Compliance with the rules would result in farmers failing to harvest fields due to labor shortages.
“These employers cannot say: ‘Well, we’ll make up for it at the back end, ”he said. “You cannot reuse spoiled milk as spoiled vegetables. “
He pointed out that federal and state governments viewed it as a national security issue to maintain food supplies during the pandemic.
Schwarz also questioned attorney general Xavier Becerra’s comments describing the workers as resident “Corporate cities “at the mercy of employers. Schwarz said this denigrates workers and does not reflect the realities of the labor market, where workers are in high demand and often move across a range of jobs.
Downer denied the repeal of the transportation and housing regulations or the paid vacation and testing requirements “Strikes at the heart of this emergency standard, “added: “When your honor finds it [a labor code] Violation will not survive the entire rule. “
Plaintiffs set a high bar when they file their final pleadings this week. Schulman said he is reluctant to let a court rule how an agency should implement public health rules during a pandemic, especially if the only precedent is just a religious freedom-related case.
“Judges are not health authorities and judges are not scientific experts, ”he said. “We can’t get into the details of how an agency decides to protect the public where so much and so much is at stake. “
You can find more news at www.Agri-Pulse.com.