73 Cal.App.5th 916
Cal. Ct. App.2021Background
- In September–November 2020 the California Occupational Safety and Health Standards Board adopted emergency temporary standards (ETS) and a findings-of-emergency (FOE) to limit workplace spread of COVID‑19; the ETS imposed requirements on hazard assessment, testing, exclusion, PPE, distancing, recordkeeping, housing and transportation, and pay/benefits during exclusion.
- Board staff and Cal/OSHA provided competing recommendations; the Board unanimously adopted the ETS and FOE, and the Office of Administrative Law requested an addendum addressing potential FOE defects.
- Western Growers and allied business groups sued, challenging the FOE and ETS as procedurally and substantively invalid, and sought a preliminary injunction to halt enforcement; the trial court denied the injunction, finding appellants unlikely to prevail and that the public interest favored enforcement.
- On appeal appellants argued (1) the court should review the FOE de novo rather than with deference, (2) the FOE lacked specific facts and failed to justify delay in emergency rulemaking, and (3) parts of the ETS exceeded the Board’s statutory authority (prescriptive standards, exclusions and mandated pay/benefits).
- The Court of Appeal affirmed: it treated the Board’s factual findings as entitled to deference (substantial‑evidence review), concluded the FOE contained adequate factual support for an emergency and explained why nonemergency rulemaking was not practicable, and upheld the ETS as within the Board’s authority; it also affirmed the trial court’s balancing of harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for FOE | Appellants: FOE legal conclusion (existence of emergency) must be reviewed de novo | Respondents: factual findings and expert judgments underlying FOE are entitled to deference; only legal questions get independent review | Court: factual findings reviewed for substantial evidence; legal conclusion on emergency considered in light of those facts; deference to agency factual determinations applies |
| Adequacy of FOE / delay in adopting ETS | Appellants: FOE lacks specific facts showing existing Title 8 rules were insufficient and fails to explain why emergency procedure (not normal rulemaking) was needed given the Board knew of COVID‑19 earlier | Respondents: FOE documents evolving science, outbreaks, gaps in Regulation 5199 and Title 8, and explains why nonemergency rulemaking was impracticable | Court: FOE contained specific, substantial‑evidence facts (outbreak counts, risk in communal housing, asymptomatic spread, regulatory gaps) and adequately explains why emergency action was justified despite earlier knowledge of the pandemic |
| Scope of authority: prescriptive vs performance standards | Appellants: Board erred by favoring prescriptive mandates instead of performance standards as required when practicable | Respondents: Board considered performance options, adopted performance rules where feasible and justified prescriptive provisions as necessary to protect workers | Court: Labor Code and Gov. Code encourage but do not compel performance standards; record shows Board considered alternatives and had a reasonable basis for prescriptive rules; upheld ETS |
| Exclusion rules and mandated pay/benefits for excluded workers | Appellants: ETS creates an irrebuttable presumption that exposed workers are infectious and forces employers to continue pay/benefits absent feasible employer rebuttal; exceeds Board authority and raises due process concerns | Respondents: exclusion and continuation of pay/benefits are reasonable means to prevent workplace transmission and encourage reporting/isolation; exceptions allow employers to show nonwork exposure | Court: rational connection exists between exposure and risk of contagion; continuation of pay/benefits is within Board’s broad safety authority and the employer exception (showing exposure not work‑related) is reasonable; ETS upheld |
Key Cases Cited
- Schenley Affiliated Brands Corp. v. Kirby, 21 Cal.App.3d 177 (Cal. Ct. App. 1971) (courts generally accord deference to agency emergency‑finding discretion)
- Doe v. Wilson, 57 Cal.App.4th 296 (Cal. Ct. App. 1997) (agency emergency findings entitled to substantial deference; courts overturn only for abuse of discretion)
- Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (Cal. 1998) (distinguishes questions of scope of delegated authority, which get independent review, from factual determinations)
- Southern California Gas Co. v. South Coast Air Quality Management Dist., 200 Cal.App.4th 251 (Cal. Ct. App. 2011) (agencies must act within delegated authority and rules must be reasonably necessary)
- Continental Baking Co. v. Katz, 68 Cal.2d 512 (Cal. 1968) (framework for balancing equities on preliminary injunctions)
- Griffiths v. Superior Court, 96 Cal.App.4th 757 (Cal. Ct. App. 2002) (test for constitutionality of irrebuttable presumptions in private‑regulatory statutes)