April 20, 2021

Volume XI, Number 110

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San Francisco Judge Denies Injunctive Relief Allowing Cal/OSHA COVID-19 Emergency Temporary Standards to Remain in Place

On February 25, 2021, San Francisco Superior Court Judge Ethan Schulman denied applications for preliminary injunctions in their entirety requested by two plaintiffs, thus leaving in place the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS). The ETS took effect on November 30, 2020.

Judge Schulman found that the plaintiffs had not met their burden of showing that they would likely prevail on the merits on the case. He concluded that Cal/OSHA’s Occupational Safety and Health Standards Board had the authority to promulgate the ETS because the COVID-19 pandemic had created an emergency. The judge held that the court was required to accord “substantial deference” to the agency’s finding of an emergency, and he declined to “second-guess” the Standards Board’s actions in addressing the pandemic.

In response to the plaintiffs’ argument that the emergency rulemaking process should have begun in March 2020, rather than later in the year, Judge Schulman cited data provided by the California Department of Public Health, namely that “on March 4, 2020, when Governor Newsom issued his proclamation of a state of emergency, California had 53 confirmed cases and one reported death” from COVID-19, while “[b]y November 19, 2020, when the Board issued its Finding of Emergency, those numbers had risen to over one million confirmed cases (1,059,267) and 18,466 deaths.”

The plaintiffs’ second argument was that an injunction was necessary to prevent irreparable harm, which outweighed any interim harm to the public and the public’s interest in the continued implementation and enforcement of the ETS. Judge Schulman found that the plaintiffs’ argument that the ETS were largely unnecessary because they “needlessly duplicate[d] safety protocols that were already in place” did not demonstrate a “credibl[e] conten[tion] that complying with them pose[d] a threat of irreparable harm.” Judge Schulman also found that the ETS would only be in effect through September 2021 and that it was foreseeable that California “[would] be out of the woods by that time and the emergency regulations [would] no longer be needed.” In addition, the judge reasoned that the plaintiffs had “overstate[d] the obligations imposed on employers by the ETS Regulations,” as the plaintiffs did not provide evidence that compliance would be “financially burdensome.”

In response to the plaintiffs’ arguments, Judge Schulman concluded that enjoining the Standards Board from enforcing the regulations would “threaten[] to seriously jeopardize worker safety and the public health.” The judge offered two considerations in support of this finding: (1) that “‘[s]temming the spread of COVID-19 is unquestionably a compelling interest’” and (2) “[t]he judicial deference to which a state agency is normally entitled is, if anything, heightened in the current circumstances of the response to an extraordinary and rapidly changing health crisis.”

California employers other than those employers governed by the Aerosol Transmissible Diseases Standard remain covered by the ETS.

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© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 64
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Kevin Bland, Ogletree Deakins Law Firm, Workplace Safety and Construction Attorney
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Kevin D. Bland joined Ogletree Deakins law firm in their Orange County office in 2011. Mr. Bland provides a wealth of experience in Health and Safety.  Before he began his legal career, Mr. Bland had nearly 20 years of construction, safety, and business experience.  In 2000, he launched his legal career after graduating cum laude from Whittier School of Law. Mr. Bland holds a Contractor’s “A” License and his practice focuses primarily on safety, risk management, Cal-OSHA regulatory rulemaking, and Cal/OSHA citation appeals. He counsels and represents various...

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Karen Tynan, employment lawyer, Ogletree Deakins
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Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Jennnifer Yanni Labor & Employment Attorney Ogletree Deakins Law Firm
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Jennifer Yanni has spent the entirety of her legal career litigating labor and employment issues. She began her practice representing plaintiffs against national corporations and second-chaired an arbitration that resulted in a six-figure award in a rare reverse-discrimination suit. For the past five years, she has represented employers on a wide range of labor and employment issues. She has defended employers in a variety of industries in cases involving discrimination on the basis of race, sex, and disability; wage and hour disputes involving claims of unpaid overtime...

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