S.F. judge rejects employers' challenge to Cal. covid workplace protection rules

 A legal challenge by retailers and farmers to the state’s emergency workplace regulations for COVID-19 — requiring employers to have prevention programs, provide protective equipment, test anyone who may have been exposed and provide paid leave to ailing employees — was emphatically rejected Thursday by a San Francisco judge.

In seeking to block regulations issued Nov. 30 by the state Occupational Safety and Health Standards Board under Gov. Gavin Newsom, the business groups provided only claims, without evidence, that the rules were unnecessary and financially burdensome, along with a far-fetched argument that no emergency existed, said Superior Court Judge Ethan Schulman.

Other than a handful of rulings by the Supreme Court and others easing states’ restrictions on in-person religious services, no court in the United States has interfered with emergency rules to prevent the spread of the coronavirus, and “this court will not be the first,” Schulman said. “Lives are at stake.”

The regulations were the state’s first overall protective measures for workers in the pandemic. Adopted by the board after a day-long public hearing in November, they are due to remain in effect through the end of September 2021 unless modified or lifted earlier. They apply to all employees except those already covered by special protective regulations for particularly vulnerable worksites as hospitals, prisons and homeless shelters, and those working from home.

The rules require every employer to have a written coronavirus prevention program, including training, identification of hazards, social distancing, and provision of masks and other protective equipment.

Employees who have been exposed to the virus, or who have been in an exposed workplace, must be given tests at no cost. Anyone who tests positive for COVID-19 must be given 10 to 14 days off, with pay, unless the employer can show that the employee was not exposed at work. Paid leave is also required for those who have been exposed to the virus at work.

Employers must take additional protective measures in any housing or transportation they provide to their workers. Businesses facing hardships that they consider unjustified can ask the state board to waive some of the restrictions

Lawsuits were filed in December by business groups led by the National Retail Association, and by farming organizations led by the Western Growers Association. They argued that the work safety board had no evidence that workplaces in California had been “a vector for the spread of COVID,” and contended the board should have submitted the rules to the public for months of comment, rather than adopting them as emergency measures shortly after the public hearing.

Schulman called those arguments “fatuous.”

“The virus spreads anyplace where persons gather and come into contact with one another,” he said.

By the time of the board’s hearing, the judge said, California had recorded more than 1 million COVID cases and over 18,000 deaths. He said the board found that millions of employees faced potential exposure on the job and that there had been outbreaks in numerous workplaces, including food manufacturing, agriculture and warehouses.

Schulman said the paid leave for ailing and exposed employees was “reasonably necessary to protect workplace safety and employees’ health,” and mandatory testing for exposed workers was a justified measure to protect coworkers.

Noting the scheduled Sept. 30 expiration date, Schulman said, “with any luck, as the vaccination effort picks up steam and the numbers of new cases continue to drop, California will be out of the woods by then” and the emergency rules can be modified or repealed.

But in the more than 60 days that the rules have been in effect, he said, there has been no evidence “that even a single retailer has been subject to significant costs.”

https://www.sfchronicle.com/bayarea/article/Judge-rejects-employers-challenge-to-15981318.php