Against the range of new workplace rules enacted amid the COVID-19 pandemic, businesses failed to get a reprieve from a San Francisco Superior Court judge in a closely watched lawsuit challenging the Cal/OSHA emergency temporary standards (ETS).
Among the issues raised by the plaintiffs was the Cal/OSHA board staff recommending denial of the ETS petition, stating California already has sufficient laws and regulations in place, and the board adopting the ETS after one day of public comment. Still, Judge Ethan Schulman wrote in his ruling that his court would not become the first in the country to overturn such rules, citing the public health emergency.
The judge’s decision, issued Feb. 25, noted that despite the economic harm caused by the pandemic, it cannot outweigh the state’s public health response to virus mitigation.
Schulman cited a recent New York district court ruling against a restaurant that sought to lift dining restrictions: “’[T]he Court cannot quarterback the state’s response to the COVID-19 pandemic from the bench.’”
Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, told the Northern California Record that the ruling is particularly disappointing while businesses fight to keep their doors open after almost a year of government shutdowns and evolving operations mandates.
“Unfortunately, he denied our request for a preliminary injunction in its entirety,” Harned said. “We believe the law is clear and that Cal/OSHA did not follow the legal procedures required before imposing these new, burdensome and costly regulations on small businesses.”
Meanwhile, the agency has issued citations and business fines ranging from $300 to more than $300,000 for pandemic-related claims.
The ETS are particularly difficult for small businesses that don’t have enough personnel to digest and implement the new standards.
“They are just trying to do the best they can,” Harned said. “They are fully aware of the magnitude of the pandemic and doing the best they can to comply.”