February 4, 2021

Court Hears Arguments on Motions for Preliminary Injunction in ETS Lawsuits

On Thursday, January 28, 2021, the San Francisco Superior Court heard back-to-back oral arguments on motions for preliminary injunctions sought in two lawsuits – one by the Western Growers-led agricultural and broad business coalition, and the other by the National Retailers Federation –  to stop the recently-enacted Cal OSHA Emergency Temporary Standard (ETS) concerning COVID-related occupational safety requirements from being enforced.  

Prior to the hearing, Judge Schulman indicated that he was inclined to deny the requests for injunctive relief saying such a ruling by the court could have dire consequences for public health. However, David Schwarz, lead counsel for the agricultural groups persuasively argued, among other things, that the Cal/OSHA Standards Board violated the Administrative Procedures Act when it inserted an addendum to the administrative record purportedly justifying its finding of emergency after the record was certified as complete.  NRF attorney Jason Mills argued that Cal/OSHA overstepped its authority and is shifting the costs of the global pandemic onto businesses, particularly small businesses.

The court did not issue a ruling, instead inviting the parties to submit further briefing on the remedy of severability (i.e., if a portion of the regulation is invalid or unconstitutional, whether the remaining portions of the regulation are valid and enforceable standing alone.)  For example, the court could decide to keep in place the requirements to have a COVID Prevention Plan, mask wearing, but strike the elements related to housing and transportation.

According to the Court’s order, the matter will be deemed submitted as of February 11, 2021, with a final decision expected soon thereafter.

The cases are Western Growers Association et al. v. California Occupational Safety and Health Standards Board et al., case number 20STCP04292, and National Retail Federation et al. v. California Department of Industrial Relations, et al., case number CGC-20-588367.