43 F.4th 1224
9th Cir.2022Background
- In May 2020 Washington Governor issued Proclamation 20-57 and an addendum imposing COVID-19 workplace requirements for agricultural worksites (PPE, six-foot distancing, daily temperature/symptom checks, etc.).
- The Washington Department of Labor & Industries (L&I) enforces WISHA, which includes a general-duty clause requiring workplaces be free from recognized hazards.
- Flower World, a horticultural employer with ~100 employees, was cited by L&I for violating WISHA’s general-duty clause based on noncompliance with the Proclamation and assessed a $4,200 penalty.
- Flower World appealed administratively and sued L&I officials in federal court under 42 U.S.C. § 1983, alleging the Proclamation’s requirements are preempted by the federal OSH Act.
- The district court dismissed Flower World’s complaint; on appeal the Ninth Circuit considered ripeness and whether the Proclamation is preempted by the OSH Act and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness of pre-enforcement challenge | Flower World: citation + fine creates concrete injury; challenge ripe | L&I: citation merely enforced WISHA general-duty clause; Proclamation not directly enforced so challenge speculative | Court: Ripe — citation referenced Proclamation requirements and imposed a payable fine, making challenge non-hypothetical |
| Whether Proclamation is an OSHA "occupational safety and health standard" subject to federal preemption | Flower World: any state workplace health/safety requirement qualifies as an occupational standard and is preempted if federal standard exists | L&I: citation enforced WISHA general-duty clause; use of the general-duty clause to enforce COVID protocols is not the creation of an OSHA-type standard | Court: Did not decide whether Proclamation is a "standard"; resolved on separate ground (no conflicting federal standard) |
| Whether existing OSHA standards preempt the Proclamation by covering COVID workplace risks | Flower World: OSHA regs (e.g., PPE and respiratory protection) already regulate COVID risks and thus preempt state rules | L&I: Proclamation addresses public-health risk distinct from OSHA workplace-specific hazards | Court: NFIB controls — OSHA cannot regulate general COVID risk; OSHA regs cited do not cover the general hazard of COVID-19 and thus do not preempt the state Proclamation |
| L&I authority to enforce Proclamation via WISHA general-duty clause | Flower World: enforcement of Proclamation is preempted thus unlawful | L&I: WISHA authorizes enforcement and citation referenced Proclamation as means to satisfy general-duty obligations | Court: L&I has authority under WISHA to enforce conditions required by gubernatorial emergency proclamations and the citation legitimately relied on the general-duty clause to enforce Proclamation requirements |
Key Cases Cited
- Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992) (OSHA preemption: states may regulate occupational safety only via an approved state plan where federal standard exists)
- Nat'l Federation of Indep. Bus. v. OSHA, 142 S. Ct. 661 (2022) (OSHA limited to workplace-specific risks; agency cannot impose broad public-health mandates addressing general daily-life risks)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits on deference to agencies when a regulation has a single reasonable construction)
- Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981) (WISHA/OSH Act general-duty clause applies when no specific standard addresses the hazard)
- Industrial Truck Ass'n, Inc. v. Henry, 125 F.3d 1305 (9th Cir. 1997) (treats Gade plurality as binding in preemption analysis)