A new lawsuit alleges the CAL/OSHA emergency rules passed last month were not enacted in accordance with the California Administrative Procedure Act, which requires prior notice and public hearings, and that the rules override another state law governing wage regulation.
“We believe the Emergency Temporary Standards (ETS) were illegally promulgated and are asking the court to make that finding and require California OSHA to stop enforcing them against California businesses,” Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, told the Northern California Record by email.
The NFIB, National Retailers Association, and three California business owners filed the suit Dec. 16 in San Francisco County Superior Court.
“Cal OSHA promulgated these ‘emergency’ standards months after the pandemic began,” Harned said. “Rather than wait months to promulgate these new, burdensome standards, Cal OSHA could have gone through notice and comment rulemaking as California law requires. This would have provided the agency with valuable input from all stakeholders.
“Moreover, Cal OSHA is charged with enforcing the state’s safety laws – not its wage and benefit laws. Through the broad paid leave mandates in the Emergency Temporary Standards, Cal OSHA is acting outside of its statutory authority,” Harned said.
The National Lawyers Guild Labor & Employment Committee and the Worksafe organization filed the petition in May, seeking emergency standards for COVID-19 and permanent standards for infectious diseases. The Board staff evaluation recommended denial of the petition, stating, “[N]ew regulations, whether in the form of an emergency or permanent regulation, are not likely to significantly improve employee outcomes.”
Board members in September granted the petition for emergency but not permanent standards, and they were adopted in November following a seven-hour public comment period.
The litigation challenges specific testing and mandatory paid exclusion requirements.
“We would like Cal OSHA to stop enforcing these regulations against California businesses,” Harned said. “California’s business owners have been working tirelessly to ensure that their employees, their customers, and themselves are protected from contracting COVID-19. They have invested millions of dollars to help stop the spread of this virus and keep their workplaces safe. If California OSHA believes more needs to be done, they should go through the legal procedures the California Procedure Act requires, which includes proposing regulations and taking comments before issuing new mandates on small business.”
The ETS are not backed by scientific data that shows they will make businesses safer, according to the suit.
A CAL/OSHA spokesperson declined to comment on the litigation.
“These regulations will be expensive for all California businesses to implement, especially smaller businesses,” John Kabateck, NFIB’s California state director, said in a news release.
“As pointed out in the lawsuit, the retail industry alone has already spent $8 billion to implement protocols to combat COVID-19, and retailers will have to spend millions more if the new Cal/OSHA rule is allowed to go forward. This has sadly become the standard operating procedure for California policymakers in recent years. When the Legislature is not heaping more new laws on the soon-to-be-broken backs of businesses, its entrenched bureaucracy can’t resist adding its own burdens. We are nothing if not pioneers as the nation’s trailblazers for destroying as many enterprises and jobs as possible.”