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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 of 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.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California and Workplace Safety and Health blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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