Western Growers Assn. v. Cal. Occupational Safety etc. CA1/1 ( 2021 )

Filed 12/21/21 Western Growers Assn. v. Cal. Occupational Safety etc. CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
WESTERN GROWERS
ASSOCIATION et al.,
Plaintiffs and Appellants, A162343
v. (San Francisco City & County
CALIFORNIA OCCUPATIONAL Super. Ct. No. CPF21517344)
SAFETY AND HEALTH
STANDARDS BOARD et al.,
Defendants and Respondents.
Western Growers Association, California Farm Bureau Federation,
California Business Roundtable, Grower-Shipper Association of Central
California, California Association of Winegrape Growers, and Ventura
County Agricultural Association (appellants) challenged the emergency
temporary standards (ETS) promulgated by the California Occupational
Safety and Health Standards Board (Board) in response to the COVID-19
pandemic. After filing suit, appellants sought a preliminary injunction
suspending enforcement of the ETS. The trial court denied the request,
concluding appellants had not shown a likelihood of prevailing on the merits
and finding the public interest in curbing the spread of COVID-19 weighed
“heavily” in favor of ongoing enforcement of the ETS. On appeal, appellants
contend the trial court erroneously applied a deferential standard of review,
the findings of emergency (FOE) lacked necessary findings, and the ETS
exceeded the Board’s statutory authority. We affirm the order.1
I. BACKGROUND
A. Factual Background
On March 4, 2020, Governor Newsom declared a “State of Emergency”
in response to the COVID-19 pandemic and, shortly thereafter, issued a stay-
at-home order that indefinitely required all individuals to remain at home.
The federal government identified 16 sectors as “vital to the United States,”
and California exempted workers in those sectors from the stay-at-home
order. Different state agencies promulgated various COVID-19-related
guidance documents for essential businesses. For example, the Department
of Housing and Community Development “encouraged” contractors to take
certain steps for their migrant farmworker centers, such as social distancing,
providing personal protective equipment (PPE), and access to hand
sanitizers. Businesses also operated under injury and illness prevention
1 On May 25, 2021, respondents the Board, David Thomas, Chris
Laszcz-Davis, Laura Stock, Barbara Burgel, David Harrison, and Nola J.
Kennedy, in their official capacities as members of the Board, Christina
Shupe, in her official capacity as executive officer of the Board, the Division
of Occupational Safety and Health (hereafter Cal/OSHA), and Douglas L.
Parker, in his official capacity as chief of Cal/OSHA (jointly, respondents)
filed a request for judicial notice of proposed changes that would become part
of a readopted ETS, and a Cal/OSHA update relating to the COVID-19 ETS.
Appellants opposed the request. We deny the request because these
materials are “not relevant to disposition of this appeal.” (Unzueta v.
Akopyan (2019) 42 Cal.App.5th 199, 221, fn. 13.)
On August 30, 2021, respondents filed a motion to dismiss the appeal
on the ground that the Board’s adoption of a revised ETS mooted the appeal,
along with a related request for judicial notice of various documents
associated with the revised ETS. In light of the holdings in this opinion, we
deny respondents’ motion and associated request for judicial notice.
2
programs (IIPP’s), which required employers to “establish, implement and
maintain” programs to “ensur[e] that employees comply with safe and
healthy work practices.” (Cal. Code Regs., tit. 8, § 3203, subd. (a).)
On May 20, 2020, the Labor & Employment Committee of the National
Lawyers Guild and Worksafe submitted a petition to the Board, requesting
the Board promulgate emergency temporary standards addressing workplace
safety issues specifically related to COVID-19. The petition asserted an
emergency temporary standard was necessary to protect the lives of
employees who may be exposed to COVID-19 in the course of their
employment and subsequently expose the communities in which they live.
The petition further claimed the existing regulations “have not been
adequate” to protect workers and proposed a hybrid performance-based and
specification-based standard.
On July 30, 2020, the chief of Cal/OSHA issued a memorandum
recommending the Board adopt a COVID-19-specific emergency regulation
for “ ‘Non-5199 Workers.’ ”2 In doing so, Cal/OSHA identified various existing
regulations under title 8 of the California Code of Regulations (Title 8
regulations) that “require protections against COVID-19,” but noted the
regulations “are not specific to this virus and generally do not identify the
particular measures or controls that employers must take to prevent
workplace spread of COVID-19.” Cal/OSHA concluded a specific set of
COVID-19 regulations “will enhance Cal/OSHA’s ability to protect workers”
by strengthening “regulatory mandates specific to preventing the spread of
2Cal/OSHA’s “Aerosol Transmissible Diseases” (ATD) standard (Cal.
Code Regs., tit. 8, § 5199) (Regulation 5199) applies to viruses such as
COVID-19, but is limited to only certain employers, such as medical services
and facilities, certain laboratories, correctional facilities, homeless shelters,
and drug treatment programs.
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infectious diseases” and “provid[ing] clear instructions to employers and
employees . . . , eliminating any confusion and enhancing compliance.”
On August 10, 2020, a Board staff evaluation was completed for the
petition. It noted Cal/OSHA’s webpage for COVID-19 guidance to employers
states: “Workplace safety and health regulations in California require
employers to take steps to protect workers exposed to infectious diseases like
the Novel Coronavirus (COVID-19), which is widespread in the community.”
The evaluation further noted Cal/OSHA “is enforcing existing COVID-19
protections and providing consultative outreach to employers with exposed
employees. Board staff is unable to find evidence that the vast majority of
California workplaces are not already in compliance with COVID-19
requirements and guidelines.” As a result, the evaluation cautioned against
a new regulation and opined, “Cal/OSHA’s limited resources should continue
to be focused on enforcement and consultation outreach specifically targeted
at employers and sectors of the economy with deficient COVID-19
protections, as this is more likely to be effective at ensuring employee
protections.” The evaluation also expressed concern that conflicts may arise
between the IIPP and existing guidelines regarding COVID-19.
The Board staff ultimately concluded “while the risk of exposure to
SARS-CoV-2 is significant, new regulations . . . are not likely to significantly
improve employee outcomes.” Accordingly, the Board staff recommended the
petition be denied.
At its September 17, 2020 meeting, the Board voted to adopt an
emergency temporary standard related to COVID-19.
On November 12, 2020, the Board made public its “Notice of Proposed
Emergency Action,” which included the proposed ETS and the FOE. The
proposed ETS set forth various requirements for (1) communicating with
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employees about COVID-19; (2) identifying and evaluating COVID-19
hazards; (3) investigating and responding to COVID-19 cases in the
workplace, including providing COVID-19 testing to exposed employees; (4)
correcting any COVID-19 hazards; (5) providing training and instruction
regarding COVID-19 and related policies and procedures; (6) implementing
various guidelines regarding physical distancing, face coverings, and other
engineering controls, administrative controls, and personal protective
equipment; (7) reporting and recordkeeping; and (8) excluding COVID-19
cases to limit transmission in the workplace and establishing return-to-work
criteria. The proposed ETS also set forth regulations for addressing multiple
COVID-19 infections and COVID-19 outbreaks, as well as COVID-19
prevention in employer-provided housing and transportation.
The FOE stated: “The objective of the proposed emergency standard is
to reduce employee exposure to the virus that causes COVID-19 and
therefore reduce COVID-19 illness and transmission.” It further stated the
Board “finds that immediate action must be taken to avoid serious harm to
the public peace, safety, or general welfare,” and set forth 20 supporting
reasons. Those reasons included the “acute and chronic adverse health
effects” posed by COVID-19, the inability to timely address such risks
through regular rulemaking, the concern that “the majority of California
workers are not covered by the protections afforded by [Regulation] 5199,”
the significant number of complaints received by Cal/OSHA “alleging
inadequate protections for and potential exposure to COVID-19 in
workplaces,” and the inconsistent guidance between federal and state
agencies and the benefit of “a specific set of regulations related to COVID-19
prevention in all workplaces.” The FOE emphasized the ETS “would
significantly reduce the number [of] COVID-19 related illnesses, disabilities
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and deaths in California’s workforce” and “is necessary to strengthen
[Cal/OSHA’s] enforcement efforts related to the hazard of COVID-19 in
workplaces.” It explained, “Current regulations are not sufficiently specific
as to what employers are required to do during the COVID-19 pandemic.
This results in confusion on behalf of both employers and employees, leaving
many employees unprotected. [¶] This confusion also causes [Cal/OSHA] to
expend staff resources to respond to questions that would be answered by
[the ETS].”
In response, the Board received comments in support of and opposition
to the ETS. The Board unanimously adopted the proposed ETS and FOE,
with the ETS becoming effective on November 30, 2020.
The Office of Administrative Law (OAL) reviewed the rulemaking file
and identified “potential issues with information contain[ed] in the Board’s
[FOE].” The OAL requested the Board address these issues in an addendum,
which was subsequently prepared and submitted to the OAL. The addendum
“further addresse[d] the facts leading to the emergency rulemaking effort and
the necessity for COVID-19 specific emergency regulations.”
B. Procedural History
In response to the ETS, appellants filed a verified petition and
complaint alleging eight causes of action: (1) declaratory relief; (2) writ of
traditional mandate; (3) violations of the California Occupational Safety and
Health Act of 1973 (Lab. Code, § 6300 et seq.); (4) violations of the California
Administrative Procedure Act (Gov. Code, § 11340 et seq.); (5) violations of
Bagley-Keene Open Meeting Act (Gov. Code, § 11120 et seq.); and
(6) violation of due process. Appellants asserted the ETS “exceed[ed] the
authority of the Board and undermine[d] existing laws, regulations, and
enforceable guidance intended to prevent or slow the spread of COVID-19 in
6
the workplace.” Appellants sought injunctive and declaratory relief, as well
as the issuance of a peremptory writ of mandate.
Appellants subsequently moved for a preliminary injunction. They
argued the Board failed to follow the necessary procedures for emergency
rulemaking, including that the ETS exceeded the Board’s statutory authority
by adopting the amendment to the FOE, the ETS’s presumptions exceeded
Cal/OSHA’s authority, and the ETS violated due process by failing to provide
employers with any mechanism to obtain an exemption. Appellants further
asserted the balance of equities favored a preliminary injunction as the
preexisting regulatory framework provided adequate protection pending trial,
employers faced a real threat of imminent and irreparable harm to their
businesses under the ETS, and there was no adequate remedy at law.
Respondents opposed the application. They asserted appellants had
not demonstrated a likelihood of success on their claims and the balance of
equities favored maintaining the ETS. Respondents argued the harm to
businesses asserted by appellants was speculative, whereas “[t]he public has
a strong interest in reducing or stopping the spread of COVID-19 in
workplaces . . . .”
The trial court denied appellants’ application for a preliminary
injunction. The court concluded appellants had not shown a likelihood of
prevailing on the merits of their claims. It further noted “the balance of
interim harms and the public interest in curbing the spread of COVID-19 and
protecting worker and community health weigh heavily in favor of the
continued implementation and enforcement of the ETS Regulations. With
the single exception of restrictions on attendance at religious services, which
present unique constitutional considerations, no federal or state court in the
country has blocked emergency public health orders intended to curb the
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spread of COVID-19, and the illnesses, hospitalizations, and deaths that
follow in its wake. . . . This Court will not be the first. Lives are at stake.”
Appellants timely appealed.
II. DISCUSSION
Appellants contend the trial court erred by reviewing the Board’s
adoption of the FOE and ETS under an abuse of discretion standard rather
than applying de novo review. They also raise various challenges to the
adequacy and legality of the FOE and ETS. We address each argument in
turn.
A. Standard of Review
In determining whether to issue a preliminary injunction, the trial
court considers two related factors: (1) the likelihood that the plaintiff will
prevail on the merits of its case at trial, and (2) the interim harm that the
plaintiff is likely to sustain if the injunction is denied as compared to the
harm that the defendant is likely to suffer if the court grants a preliminary
injunction. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998)
63 Cal.App.4th 1396, 1402 (Moorpark).) “ ‘The latter factor involves
consideration of such things as the inadequacy of other remedies, the degree
of irreparable harm, and the necessity of preserving the status quo.’ ” (Ibid.,
quoting Abrams v. St. John’s Hospital & Health Center (1994) 25 Cal.App.4th
628, 636.) The determination of whether to grant a preliminary injunction
generally rests in the sound discretion of the trial court. (Moorpark, at
p. 1402.) Discretion is abused when a court exceeds the bounds of reason or
contravenes uncontradicted evidence. (Ibid.) “[W]ith respect to questions of
construction of statutes and contracts not involving assessment of extrinsic
evidence, our standard of review is de novo.” (Davenport v. Blue Cross of
California (1997) 52 Cal.App.4th 435, 445 (Davenport).) “ ‘ “[W]hen reviewing
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the interpretation and application of a statute where the ultimate facts are
undisputed” ’ an appellate court exercises its independent judgment in
determining whether issuance or denial of injunctive relief was proper.” (City
of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1085.)
The court properly exercises its discretion where its determination is
supported by substantial evidence. (Monogram Industries, Inc. v. Sar
Industries, Inc. (1976) 64 Cal.App.3d 692, 703.) “ ‘Where the evidence before
the trial court was in conflict, we do not reweigh it or determine the
credibility of witnesses on appeal. “[T]he trial court is the judge of the
credibility of the affidavits filed in support of the application for preliminary
injunction and it is that court’s province to resolve conflicts.” [Citation.] Our
task is to ensure that the trial court’s factual determinations, whether
express or implied, are supported by substantial evidence. [Citation.] Thus,
we interpret the facts in the light most favorable to the prevailing party and
indulge in all reasonable inferences in support of the trial court’s order.’ ”
(Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300; see
Moorpark, supra, 63 Cal.App.4th at pp. 1402–1403 [reviewing court will
presume the trial court made appropriate factual findings in the absence of
express findings and review the record for substantial evidence to support the
rulings].)
B. The Administrative Procedure Act
1. Emergency Regulations
Before promulgating a regulation, the Administrative Procedure Act
(Gov. Code,3 § 11340 et seq.; APA) generally requires a state agency provide a
45-day public notice and written comment period, followed by a public
All further statutory references are to the Government Code unless
3
otherwise noted.
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hearing. (§ 11346.4.) In an “emergency,” however, the agency can shorten
the public notice and written comment period to five days. (§ 11346.1,
subd. (a)(2).) The APA defines “ ‘[e]mergency’ ” as “a situation that calls for
immediate action to avoid serious harm to the public peace, health, safety, or
general welfare.” (§ 11342.545.)
To promulgate an emergency regulation, a state agency is required to
find “the adoption of a regulation . . . is necessary to address an emergency
. . . .” (§ 11346.1, subd. (b)(1).) The state agency also must provide a written
statement that includes “a written statement that contains the information
required by paragraphs (2) to (6), inclusive, of subdivision (a) of
Section 11346.5 and a description of the specific facts demonstrating the
existence of an emergency and the need for immediate action, and
demonstrating, by substantial evidence, the need for the proposed regulation
to effectuate the statute being implemented, interpreted, or made specific and
to address only the demonstrated emergency.” (§ 11346.1, subd. (b)(2).)
Section 11346.1, subdivision (b)(2) further provides: “A finding of
emergency based only upon expediency, convenience, best interest, general
public need, or speculation, shall not be adequate to demonstrate the
existence of an emergency. If the situation identified in the finding of
emergency existed and was known by the agency adopting the emergency
regulation in sufficient time to have been addressed through nonemergency
regulations adopted in accordance with the provisions of Article 5
(commencing with Section 11346), the finding of emergency shall include
facts explaining the failure to address the situation through nonemergency
regulations.”
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2. Review of Agency Actions
a. Generally
In reviewing quasi-legislative agency actions, such as the Board’s
adoption of the ETS, we apply the following standard of review: “ ‘ “ ‘[I]n
reviewing the legality of a regulation adopted pursuant to a delegation of
legislative power, the judicial function is limited to determining whether the
regulation (1) is “within the scope of the authority conferred” [citation] and
(2) is “reasonably necessary to effectuate the purpose of the statute”
[citation].’ [Citation.] ‘These issues do not present a matter for the
independent judgment of an appellate tribunal; rather, both come to this
court freighted with [a] strong presumption of regularity . . . .’ [Citation.]
Our inquiry necessarily is confined to the question whether the classification
is ‘arbitrary, capricious or [without] reasonable or rational basis.’
[Citations.]” ’ [Citations.] Of all administrative decisions, quasi-legislative
acts receive the most deferential level of judicial scrutiny. [Citations.] . . .
Civil statutes enacted to protect the public are generally broadly or liberally
applied in favor of that protective purpose. [Citations.]
“But we conduct independent review of whether defendants have
exceeded the scope of authority delegated by the Legislature to them or the
meaning of a statute. [Citations.] Deference is not accorded to an
administrative action which is incorrect in light of unambiguous statutory
language or which is clearly erroneous or unauthorized. [Citations.] Nor can
we, in construing a remedial statute liberally, apply it in a manner not
reasonably supported by its statutory language.” (Southern California Gas
Co. v. South Coast Air Quality Management Dist. (2011) 200 Cal.App.4th 251,
267–268.)
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b. Emergency regulations
As to emergency regulations, appellants contend whether an emergency
exists is a question regarding the scope of authority delegated by the
Legislature, and thus must be reviewed de novo.
Courts traditionally have held “ ‘[w]hat constitutes an emergency is
primarily a matter for the agency’s discretion.’ ” (Doe v. Wilson (1997)
57 Cal.App.4th 296, 306, quoting Schenley Affiliated Brands Corp. v. Kirby
(1971) 21 Cal.App.3d 177, 194–195 (Schenley).) In Doe v. Wilson, our
colleagues in Division Five addressed emergency regulations issued in
response to then-recently enacted federal legislation. (Doe v. Wilson, at
p. 299.) The court noted, “Under Schenley, a court is not necessarily bound
by an agency’s determination of the existence of an emergency, but the court
must accord substantial deference to this agency finding, and may only
overturn such an emergency finding if it constitutes an abuse of discretion by
the agency.” (Id. at p. 306.) The court upheld the emergency regulations,
concluding “appellants properly exercised the discretion confided in them by
law under Schenley when they determined [recent federal law], which made
California’s ongoing program of paying for routine prenatal care for illegal
aliens illegal under federal law, was ‘an unforeseen situation calling for
immediate action.’ ”4 (Doe v. Wilson, at p. 306.)
Appellants contend Assembly Bill No. 1302 (2005–2006 Reg. Sess.)
(Assembly Bill 1302), which amended section 11346.1, subdivision (b)(2) in
4 Appellants argue Schenley is no longer valid authority. We agree
Schenley is no longer good law as to the definition of an emergency (see, e.g.,
§ 11342.545 [defining emergency]; Asimow et al., Cal. Practice Guide:
Administrative Law (The Rutter Group 2021) ¶ 26:159), but that issue is
distinct from the proper standard of review. We are unaware of any case law
disputing its description of the proper standard of review for emergency
regulations.
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2007, altered the deferential standard of review set forth in Schenley. As
noted by appellants, the 2007 amendment to section 11346.1 sought to
strengthen and clarify the standard for when emergency regulations are
appropriate “both by amending the standard itself and by specifying what an
agency must show in its finding of emergency.” (Assem. Concur. in Sen.
Amend. of Assem. Bill 1302, as amended Aug. 23, 2006, p. 3.) Assembly Bill
1302 “amend[ed] the standard” by adopting section 11342.545, which
provided a definition of “emergency.” The bill also clarified the showing for a
finding of emergency by supplementing section 11346.1, subdivision (b).
Former section 11346.1, subdivision (b), required in relevant part, “Any
finding of an emergency shall include a written statement which contains the
information required by paragraphs (2) to (6), inclusive, of subdivision (a) of
Section 11346.5 and a description of the specific facts showing the need for
immediate action.” (Stats. 2000, ch. 1060, § 21.) The revised provision now
requires, “Any finding of an emergency shall include a written statement that
contains the information required by paragraphs (2) to (6), inclusive, of
subdivision (a) of Section 11346.5 and a description of the specific facts
demonstrating the existence of an emergency and the need for immediate
action, and demonstrating, by substantial evidence, the need for the proposed
regulation to effectuate the statute being implemented, interpreted, or made
specific and to address only the demonstrated emergency.” (§ 11346.1,
subd. (b)(2).)
Appellants assert the first phrase of section 11346.1, subdivision (b)(2),
which in part requires “a description of the specific facts demonstrating the
existence of an emergency and the need for immediate action,” corresponds to
“ ‘determining whether the regulation is within the scope of the authority
delegated by the Legislature.’ ” (See Yamaha Corp. of America v. State Bd. of
13
Equalization (1998) 19 Cal.4th 1, 11 (Yamaha).) And “[a] court does not . . .
defer to an agency’s view when deciding whether a regulation lies within the
scope of the authority delegated by the Legislature.” (Id. at p. 11, fn. 4.)
Appellants then argue the second phrase of section 11364.1, subdivision
(b)(2), which requires the agency demonstrate “by substantial evidence, the
need for the proposed regulation to effectuate the statute being implemented,
interpreted, or made specific and to address only the demonstrated
emergency,” corresponds to whether the regulation is “ ‘reasonably necessary
to effectuate the purpose of the statute.’ ” (Yamaha, at p. 11.) That
assessment, based on the “substantial evidence” language, is subject to
deferential review. (See ibid. & § 11364.1, subd. (b)(2).)
Appellants’ argument blends the issue of the legal conclusion of
emergency with the Board’s factual findings and expert judgments
underlying its finding of emergency. “ ‘[A]gencies are normally not
empowered to determine, in an authoritative way, the decision-making
criteria that relevant statutes require them to consider when they formulate
and adopt rules. As a result, courts must review wholly de novo the propriety
of the decision-making criteria utilized by agencies when they make rules.’ ”
(California Advocates for Nursing Home Reform v. Bontá (2003)
106 Cal.App.4th 498, 506.) Conversely, “[a] reviewing court will not
substitute its policy judgment for the agency’s in the absence of an arbitrary
decision.” (Western Oil & Gas Assn. v. Air Resources Board (1984) 37 Cal.3d
502, 509.)
The Board’s underlying assessment regarding whether the existing
Title 8 regulations sufficiently protected workers from the COVID-19
pandemic is a “substantive policy decision[ ] in its area of expertise.” (See
California Advocates for Nursing Home Reform v. Bontá, supra,
14
106 Cal.App.4th at p. 506.) It also falls within the provision of
section 11346.1, subdivision (b)(2) requiring that the Board demonstrate “by
substantial evidence, the need for the proposed regulation to effectuate the
statute being implemented.” Accordingly, those factual findings are entitled
to deference. And in considering the description of these factual findings, we
then independently assess whether the Board properly made a finding of
emergency.5
We note nothing in the legislative history of Assembly Bill 1302 or in
subsequent case law indicates an intent to apply de novo review to the entire
finding of emergency—i.e., the conclusion of an emergency and the factual
findings underlying that conclusion. Moreover, “ ‘ “[a] statute is not to be
read in isolation; it must be construed with related statutes and considered in
the context of the statutory framework as a whole. [Citation.]” ’ [Citation.]
This exercise is designed to allow statutes to ‘be harmonized, both internally
and with each other.’ ” (Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407,
1421.) Section 50 of title 1 of the California Code of Regulations sets forth
the special requirements for submission of emergency regulatory actions.
Specifically, it requires agencies enacting emergency regulations to provide a
5 Appellants cite an OAL opinion, “Decision of Disapproval of
Emergency Regulatory Action,” OAL file No. 07-0119-02 E, to argue for de
novo review. While that opinion does state, “Neither OAL nor the courts are
required to defer to the judgment of the agency in the determination of
whether an emergency exists,” it does not clarify whether it is referencing the
legal conclusion of emergency or the underlying factual findings. (OAL file
No. 07-0119-02 E, at p. 4.) However, we note that opinion cites Doe v. Wilson,
supra, 57 Cal.App.4th 296, with approval. (OAL file No. 07-0119-02 E, at
pp. 4–6.) Appellants also cite Sorenson Communications Inc. v. F.C.C. (D.C.
Cir. 2014) 755 F.3d 702 in support of their position. While that court applied
de novo review of the “agency’s legal conclusion of good cause,” it “defer[red]
to an agency’s factual findings and expert judgments therefrom, unless such
findings and judgments are arbitrary and capricious.” (Id. at p. 706 & fn. 3.)
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statement “confirming that the emergency situation addressed by the
regulations clearly poses such an immediate, serious harm that delaying
action to allow notice and public comment would be inconsistent with the
public interest. The statement shall include: [¶] 1. Specific facts
demonstrating by substantial evidence that failure of the rulemaking agency
to adopt the regulation within the time periods required for notice . . . and for
public comment . . . will likely result in serious harm to the public peace,
health, safety, or general welfare; and [¶] 2. Specific facts demonstrating by
substantial evidence that the immediate adoption of the proposed regulation
by the rulemaking agency can be reasonably expected to prevent or
significantly alleviate that serious harm.” (Cal. Code Regs., tit. 1, § 50,
subd. (b)(3)(B), italics added.) The Code of Regulations thus supports our
interpretation that the underlying factual findings regarding imminent harm
are entitled to deferential review. (Accord Brutoco Engineering &
Construction, Inc. v. Superior Court (2003) 107 Cal.App.4th 1326, 1334 [“we
do not assume that the Legislature would deliberately adopt a regulation
which conflicted with the statute and thus be invalid. [Citations.] We
therefore incline towards an interpretation not in conflict with the statute.”].)
In considering these findings, we then determine whether they demonstrate
an emergency.6
C. Likelihood of Success on the Merits
Appellants raise various challenges to both the FOE and ETS.
Regarding the FOE, appellants argue it does not contain “ ‘specific facts
demonstrating the existence of an emergency and the need for immediate
6 While this standard varies in part from that applied by the trial court,
we find the error harmless because, as explained below, we conclude the
factual findings support a finding of emergency. (See part II.C., post.)
16
action,’ ” and fails to justify the alleged delay in enacting the ETS.
Appellants further contend the ETS exceeds the Board’s statutory authority.
We disagree.
1. The FOE
a. Findings demonstrating the existence of an emergency
and the need for immediate action
Appellants’ verified complaint concedes that “no one doubts that the
COVID-19 pandemic constitutes a public health emergency.” Rather, their
arguments focus on whether the pandemic required an immediate need for
additional regulation.7 Specifically, appellants assert the Board failed to
show the Title 8 regulations were insufficient to protect workers from
COVID-19 and resulting workplace infections. Appellants argue the evidence
demonstrates Cal/OSHA was successfully conducting investigations and
issuing citations related to COVID-19 under the then-existing Title 8
regulations.
The FOE sets forth specific facts indicating a serious risk of harm posed
by COVID-19. It identifies the significant health risks—such as difficulty
breathing, organ failure, damage to the lungs, heart and brain, long-term
health problems, and death—posed by the virus to certain individuals. It
further identified the increased risk of exposure to COVID-19 for those
employees “ ‘who report to their places of employment,’ ” particularly with
regard to migrant temporary farmworkers. The FOE noted “[t]here has been
an overrepresentation of migrant temporary farmworkers testing positive for
7 While appellants frame their argument as challenging both the
existence of an emergency and the need for immediate action, those two
issues are intrinsically linked because an “ ‘Emergency’ ” is defined as “a
situation that calls for immediate action to avoid serious harm to the public
peace, health, safety, or general welfare.” (§ 11342.545, italics added.)
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COVID-19 in California compared to workers in any other industry.” The
FOE explained such workers often “live in compact, dorm-like housing
facilities provided by employers” and, at one such housing facility, 190 of the
216 workers tested returned positive tests. Both the federal Occupational
Safety and Health Administration (OSHA) and the Centers for Disease
Control (CDC) found the need to issue guidance specifically aimed at workers
residing in communal living arrangements and traveling in shared motor
vehicles.
The FOE further noted the risk posed by the COVID-19 pandemic was
not abating. The FOE stated that, as of October 2020, the majority of
Californians were “allowed to engage in on-site work operations” and risked
employment-related COVID-19 exposure. The FOE also recounted “[c]lusters
and outbreaks of COVID-19 have occurred in workplaces throughout
California,” and Cal/OSHA “received over 6,937 complaints alleging
inadequate protections for and potential exposure to COVID-19 in
workplaces.”
Likewise, the FOE set forth facts stating the need for immediate action
in response to the ongoing threat posed by COVID-19. It explained while
“[Regulation] 5199[ ] provides important protections to workers in specified
work settings from exposure to novel pathogens, including COVID-19, . . . .
the scope of [Regulation] 5199 is limited. Thus, the majority of California
workers are not covered by the protections afforded by [Regulation] 5199.”
The FOE further explained while Title 8 regulations “protect works from
hazards in general . . . . there is currently no specific regulation that protects
all workers from exposure to infectious diseases such as COVID-19.”
Accordingly, the FOE concluded emergency regulations were required to
“preserve worker safety and health,” “combat the spread of COVID-19 in
18
California workers,” and “strengthen [Cal/OSHA’s] enforcement efforts
related to the hazard of COVID-19 in workplaces.” It notes, as of September
30, 2020, the California Department of Public Health (CDPH) “was aware of
nearly 400 COVID-19 outbreaks in settings in California that were not
covered by existing [Regulation] 5199,” which “is likely an undercount, since
CDPH relied on reporting from other entities, including heavily burdened
local health departments, and the fact that employers in some counties were
not obligated to report outbreaks to their local health department until
September 18, 2020.”
In the section entitled, “Policy Statement and Anticipated Benefits,”
the FOE explained “COVID-19 continues to infect workers” and “the proposed
regulation will reduce the number of COVID-19 infections in the workplace,”
which will thus “reduce the financial costs caused by medical care and lost
workdays, costs that may be borne by employees, their families, employers,
insurers, and public benefits programs.” It further noted “[c]urrent
regulations are not sufficiently specific as to what employers are required to
do during the COVID-19 pandemic[,] . . . leaving many employees
unprotected.” The FOE noted the challenge in controlling the spread of
COVID-19 because “[a] person who is infected with COVID-19 may have no
obvious symptoms, or no symptoms at all, yet still be infectious to others.
Therefore, the proposed regulations require . . . employers to implement
multiple methods of protections from exposure to COVID-19 at its
workplace.” (Fn. omitted.)
These findings outline both the emergency and the need for immediate
action. They identify serious health risks to the public, the scope of the
ongoing COVID-19 pandemic, the increased risk of workplace transmission,
19
and the workplace-related outbreaks that have arisen despite the existing
Title 8 regulations.
Appellants argue the FOE failed to show existing regulations were
insufficient to address the COVID-19 pandemic or impaired enforcement
efforts related to the pandemic. To the contrary, the FOE explained current
regulations lacked certain protections. For example, existing Title 8
regulations did not “require PPE to help prevent the transmission of COVID-
19” or “specifically require measures to ensure that employees are able to
maintain personal hygiene, such as allowing time for employee handwashing,
and the provision of hand sanitizer by the employer.” The FOE noted
workers continued to be infected with COVID-19, including COVID-19
outbreaks in approximately 400 workplaces. It further discussed the specific
challenge posed by COVID-19 because infected individuals may be
asymptomatic, yet able to transmit the disease to others. The FOE explained
additional regulations would “reduce the number of COVID-19 infections in
the workplace” by requiring employers “to implement multiple methods of
protections from exposure to COVID-19 at its workplace.”
Undoubtedly, existing Title 8 regulations required employers to take
steps to protect workers against COVID-19, and Cal/OSHA was conducting
inspections pursuant to those regulations. But despite those efforts, the FOE
indicates employees continued to be exposed to, and test positive for, COVID-
19. The FOE also explained current regulations were “not sufficiently
specific as to what employers are required to do during the COVID-19
pandemic. This results in confusion on behalf of both employers and
20
employees, leaving many employees unprotected.” The FOE thus explained
further regulation was needed to control the spread of COVID-19.8
Next, appellants assert the FOE impermissibly relies on “convenience-
based justifications,” prohibited speculation, and unsubstantiated
conclusions. We disagree. For example, FOE findings that the Board must
implement COVID-19 specific regulations in place of general regulations in
order to “preserve worker safety and health” is not a mere issue of
“convenience.” Similarly, the FOE findings regarding the spread of COVID-
19 in the workplace are not “prohibited speculation and unsubstantiated
conclusions.” The FOE cites technical studies and reports addressing, for
example, COVID-19 spread at a meat processing plant, farmworker housing
outbreaks, transmission in a skilled nursing facility, and ventilation
assessments relating to industrial and nonmedical settings. The FOE also
identifies specific instances of workplace outbreaks. Moreover, as explained
above, the FOE provides specific facts demonstrating the COVID-19
pandemic constituted an emergency under section 11346.1, subdivision (b)(2).
The record certainly contains conflicting evidence regarding the
sufficiency of the Title 8 regulations. As appellants note, the Board staff
report recommends against adopting the ETS. That report noted it was
unaware of instances of noncompliance by the majority of workplaces, and a
new regulation could burden employers and may not be an effective approach
to the pandemic. Conversely, Cal/OSHA submitted a report recommending
adoption of the ETS. Cal/OSHA’s report explained, “There is no existing
8We agree with respondents that Cal/OSHA’s decision to cite while not
assessing monetary penalties for violations of the ETS is irrelevant to the
question of whether there was a need for immediate action. Appellants fail to
draw a connection between the need for emergency regulations and assessing
monetary fines pursuant to those regulations.
21
Title 8 regulation that comprehensively addresses an employer’s
responsibility to protect Non-[Regulation] 5199 Workers from infectious
diseases.” It explained none of the existing standards are specific to
infectious disease or identify the specific measures that must be taken to
fight the spread of an infectious disease. The report concluded Cal/OSHA’s
enforcement efforts would be strengthened through regulatory mandates
specific to preventing the spread of infectious disease. Considering the record
as a whole, substantial evidence supports the Board’s determination that
existing Title 8 regulations were insufficient to fully protect workers from
COVID-19. And those findings provide sufficient support to justify the FOE.9
b. Whether delay in enacting the ETS requires
invalidation
Appellants next argue the Board was aware of the Governor’s executive
orders and the risk of COVID-19 as of March 2020, yet failed to act until
November 2020. They assert the FOE omits any facts explaining why the
Board was unable to act through nonemergency regulations during this
period.
Section 11346.1, subdivision (b)(2) requires a finding of emergency to
include “facts explaining the failure to address the situation through
9 Appellants also criticize the trial court’s decision as “making its own
findings based on evidence outside the administrative record that was not
considered by the Board.” But it does not specifically identify what evidence
the court improperly considered. Rather, the trial court emphasized the
fatuousness of appellants’ argument that workplaces have not been shown to
be a vector for the spread of COVID-19, and cited recent case law noting how
“any activity that brings individuals together increases the risk of additional
infections.” To the extent the trial court considered recently submitted
reports from local health departments that were not before the Board, it
explained those were considered solely when assessing the balance of interim
harms.
22
nonemergency regulations” if the identified situation “existed and was known
by the agency adopting the emergency regulation in sufficient time to have
been addressed through nonemergency regulations.” The phrase “existed and
was known” is not defined. However, whether an emergency “existed and
was known” to an agency is a factual inquiry that, in the context of a global
pandemic, presents unique circumstances. While COVID-19 existed and was
known as of March 2020, the scope of the pandemic was still developing.
Appellants fail to explain how the Board could have anticipated the changing
scientific advice on managing the pandemic, the insufficiency of existing
regulations, the ongoing increase in infections and deaths, and the reopening
of workplaces during increasing COVID-19 rates. The FOE identifies these
issues in support of the ETS. For example, it identifies the increasing
numbers of COVID-19 infections and deaths in California. Likewise, it notes
as of September 2020, Cal/OSHA was aware of approximately 400 COVID-19
outbreaks in workplaces not covered by Regulation 5199. Yet in October
2020, the majority of California workplaces were allowed to reopen. Many of
the technical studies and supporting materials relied upon by the Board in
drafting the FOE had been published or updated during the summer and fall
of 2020. And, as noted by other courts, the pandemic has been “dynamic” and
constantly evolving. (See, e.g., California Attorneys for Criminal Justice v.
Newsom (May 13, 2020, No. S261829) __ Cal.5th __ [2020 WL 2568388 at
p. *2] [noting “dynamic nature of the pandemic”]; South Bay United
Pentecostal Church v. Newsom (2020) ___ U.S. ___ [140 S.Ct. 1613] (conc. opn.
of Roberts, C. J.) [noting question of restrictions on activities during
pandemic is a “dynamic and fact-intensive matter”]; Roman v. Wolf (C.D.Cal.
Oct. 15, 2020, No. ED CV 20-00768 TJH) 2020 WL 6107069, at p. *4 [“the
state of the science surrounding the novel coronavirus and the resulting
23
COVID-19 disease has been dynamic and constantly evolving”].) In fact, even
some comment letters in opposition to the FOE and ETS acknowledged that
the understanding of COVID-19 and the most effective mechanisms to
prevent transmission were evolving.
Here, appellants assert the Board was required to act no later than
May 2020—before the majority of workplaces had even reopened—or waive
their ability to act through emergency regulations. We do not believe the
Board’s authority in this situation is so limited.10 The FOE contains
sufficient facts demonstrating the scope of the COVID-19 pandemic and
related scientific understanding was changing throughout the spring,
summer, and fall of 2020. Moreover, we note the Board was not doing
“nothing,” as appellants suggest. During the summer, Cal/OSHA and the
Board were evaluating the scope of existing regulations and issued various
reports discussing whether additional regulations were needed.
Appellants cite Chamber of Commerce v. United States DHS (N.D.Cal.
Dec. 1, 2020) 504 F.Supp.3d 1077 to argue an agency’s inability to
understand the magnitude of the COVID-19 pandemic does not constitute
good cause for delay. In that case, however, the court reviewed changes to
the “ ‘specialty occupation’ ” definition in connection with H-1B visas. (Id. at
pp. 1083–1084.) In doing so, the court noted in part the issues addressed by
the regulatory changes were not new, and similar changes had been
discussed prior to the pandemic. (Id. at p. 1088.) Accordingly, the court
declined to consider the defendants’ delay in assessing the good cause
10 Appellants argue other agencies were able to act earlier. But as each
agency faced its own unique issues and challenges in connection with the
pandemic, the mere fact other agencies engaged in emergency rulemaking at
earlier stages does not automatically indicate the Board’s rulemaking was
untimely.
24
exception. (Ibid.) Here, the emergency regulations did not address an
auxiliary issue, but directly addressed the COVID-19 pandemic. The changes
set forth in the FOE in response to the COVID-19 pandemic did not
constitute longstanding issues under consideration because the pandemic did
not exist.
We thus conclude the scope and impact of the COVID-19 pandemic did
not exist and was not known by Board “in sufficient time to have been
addressed through nonemergency regulations.”11 (See § 11346.1,
subd. (b)(2).) Accordingly, the trial court did not abuse its discretion in
concluding that appellants failed to demonstrate a likelihood of success as to
the adequacy of the FOE.
2. The ETS
Appellants contend the ETS contains various provisions that exceed the
Board’s statutory authority under the Labor Code and the APA.
Labor Code section 6300 sets forth the purpose of the California
Occupational Safety and Health Act of 1973: to assure “safe and healthful
working conditions for all California working men and women by authorizing
the enforcement of effective standards, assisting and encouraging employers
to maintain safe and healthful working conditions, and by providing for
research, information, education, training, and enforcement in the field of
occupational safety and health.” Labor Code section 6306, subdivision (a)
defines “ ‘Safe,’ ” “ ‘safety,’ ” and “ ‘health’ ” as “freedom from danger to the
life, safety, or health of employees as the nature of the employment
reasonably permits.”
11Accordingly, we need not address appellants’ arguments regarding
the validity of the addendum, the adequacy of the addendum’s findings, or
whether the FOE can be supplemented with other findings from the
administrative record or subject to judicial notice.
25
The Board has exclusive state authority to “adopt, amend or repeal
occupational safety and health standards and orders.” (Lab. Code, § 142.3,
subd. (a)(1).) The Labor Code further grants Cal/OSHA power “over every
employment and place of employment in this state . . . necessary adequately
to enforce and administer all laws and lawful standards and orders, or special
orders requiring such employment and place of employment to be safe, and
requiring the protection of the life, safety, and health of every employee in
such employment or place of employment.” (Id., § 6307.)
a. Prescriptive versus performance standards12
Appellants first argue the Board violated the statutory mandate of
Labor Code section 144.6 by creating prescriptive standards without
considering whether goals could be achieved by performance standards. 13 We
disagree.
Labor Code section 144.6 states: “In promulgating standards dealing
with toxic materials or harmful physical agents, the board shall adopt that
12 “ ‘Performance standard’ means a regulation that describes an
objective with the criteria stated for achieving the objective.” (§ 11342.570.)
“ ‘Prescriptive standard’ means a regulation that specifies the sole means of
compliance with a performance standard by specific actions, measurements,
or other quantifiable means.” (§ 11342.590.)
13 Appellants contend this issue should be reviewed de novo. We
independently review “whether defendants have exceeded the scope of
authority delegated by the Legislature to them.” (Southern California Gas
Co. v. South Coast Air Quality Management Dist., supra, 200 Cal.App.4th at
p. 268.) Here, however, appellants do not argue the Board does not have
authority to enact prescriptive standards. Rather, they assert the Board first
should have considered performance standards. The question thus is
whether the Board’s decision to utilize prescriptive rather than performance
standards was “ ‘ “ ‘reasonably necessary to effectuate the purpose of the
statute.’ ” ’ ” (Yamaha, supra, 19 Cal.4th at p. 11.) On this issue, “ ‘[o]ur
inquiry necessarily is confined to the question whether the classification is
“arbitrary, capricious or [without] reasonable or rational basis.” ’ ” (Ibid.)
26
standard which most adequately assures, to the extent feasible, that no
employee will suffer material impairment of health or functional capacity
. . . . Whenever practicable, the standard promulgated shall be expressed in
terms of objective criteria and of the performance desired.” Similarly,
Government Code section 11340.1, subdivision (a) provides: “It is the intent
of the Legislature that agencies shall actively seek to reduce the unnecessary
regulatory burden on private individuals and entities by substituting
performance standards for prescriptive standards wherever performance
standards can be reasonably expected to be as effective and less burdensome,
and that this substitution shall be considered during the course of the agency
rulemaking process.”
Neither Labor Code section 144.6 nor Government Code
section 11340.1 require the Board to adopt performance standards. Rather,
agencies are instructed to favor performance standards over prescriptive
standards “[w]henever practicable,”—i.e., when they are “expected to be as
effective.”14 (Lab. Code, § 144.6; Gov. Code, § 11340.1, subd. (a).) Here, the
record indicates the Board considered performance standards, adopted them
where appropriate, and rejected them where necessary. In consideration of
the FOE and ETS, Cal/OSHA submitted an evaluation to the Board. That
14Labor Code section 142.3, subdivision (c) also envisions some
prescriptive standards: “Where appropriate, these standards or orders shall
also prescribe suitable protective equipment and control or technological
procedures to be used in connection with these hazards and shall provide for
monitoring or measuring employee exposure at such locations and intervals
and in a manner as may be necessary for the protection of employees. In
addition, where appropriate, the occupational safety or health standard or
order shall prescribe the type and frequency of medical examinations or other
tests which shall be made available, by the employer or at his or her cost, to
employees exposed to such hazards in order to most effectively determine
whether the health of such employee is adversely affected by this exposure.”
27
evaluation explained the shortcomings with the performance standards set in
the existing Title 8 regulations. Namely, they “are not specific to this virus
and generally do not identify the particular measures or controls that
employers must take to prevent workplace spread of COVID-19.” Cal/OSHA
recommended adopting the emergency regulations to “complement and
augment the existing rules.”
The Board likewise concluded the general performance standards in
the existing Title 8 regulations were insufficient to adequately protect
workers from COVID-19. The FOE notes, “other than those employees who
are covered under [Regulation] 5199, there is currently no specific regulation
that protects all workers from exposure to infectious diseases such as COVID-
19.” The FOE identified various shortcomings in the existing Title 8
regulations and stated, under those regulations, there have been “[c]lusters
and outbreaks of COVID-19” in workplaces throughout California. The FOE
then addressed the need and purpose for each new provision.
Moreover, we note certain provisions of the ETS do, in fact, utilize
performance standards. For example, the section addressing identification
and evaluation of COVID-19 hazards allows employers to “develop and
implement a process for screening employees and for responding to employees
with COVID-19 symptoms.” (Cal. Code Regs., title 8, § 3205, subd. (c)(2)(B).)
Other provisions likewise set performance standards. (See, e.g., Cal. Code
Regs., title 8, § 3205, subd. (c)(2)(C) [“develop COVID-19 policies and
procedures to respond effectively and immediately to individuals at the
workplace who are a COVID-19 case”]; id., subd. (c)(2)(E) [“employer shall
evaluate how to maximize ventilation with outdoor air”]; id., subd. (c)(2)(G)
[“evaluate existing COVID-19 prevention controls at the workplace and the
need for different or additional controls”]; id., subd. (c)(4) [“Employers shall
28
implement effective policies and/or procedures for correcting unsafe or
unhealthy conditions, work practices, policies and procedures in a timely
manner”].)
While certain provisions are prescriptive, the FOE justifies the
adoption of those provisions. For example, in connection with the subsection
addressing face coverings, the FOE explains “[t]he subsection is necessary, as
the use of face coverings is recommended to reduce the transmission of
COVID-19,” and cites guidance issued by CDPH. The FOE further explains
current evidence regarding transmission of COVID-19 particles and discusses
the need to protect workers from individuals who cannot, or are not, wearing
face coverings.
The administrative record demonstrates the Board did not abuse its
discretion in adopting prescriptive standards in the ETS. Rather, the record
indicates the Board considered performance standards during the rulemaking
process, including those existing in the Title 8 regulations, and concluded
certain prescriptive standards were necessary to assure “to the extent
feasible, that no employee will suffer material impairment of health or
functional capacity.” (See Lab. Code, § 144.6.) We cannot conclude there was
no reasonable basis for the Board’s decision.
b. Worker exclusion with certain benefits
Next, appellants contend the Board exceeded its authority by requiring
“without exception, that any worker with ‘COVID-19 exposure’ be excluded
‘from the workplace’ for ten days.” Appellants assert this requirement
creates an “irrebuttable presumption” that the exposed worker is infectious.
Appellants further contend the mandated continuation of pay, benefits, and
seniority during the time of any exclusion due to a workplace-related
exposure exceeds the Board’s authority.
29
The ETS does not presume exposed employees are infectious. Rather,
the ETS acknowledges an exposed worker may be infectious and thus may
constitute a workplace hazard. Moreover, we need not opine on whether the
provision creates an irrebuttable presumption because, even assuming it
does, the Board did not exceed its authority in enacting the ETS.
As noted by appellants, an irrebuttable presumption in a statute
regulating the private economic sector can be unconstitutional, and thus
violate due process, “if it is irrational, arbitrary or unreasonable.” (Griffiths
v. Superior Court (2002) 96 Cal.App.4th 757, 779.) “A conclusive
presumption in such a statute is therefore valid where a rational connection
exists between the fact proved and the ultimate fact presumed.” (Ibid.)
Here, a rational connection exists between an employee’s exposure and
the fact that the employee may have contracted COVID-19, thus
necessitating his or her exclusion from the workplace. A CDC information
sheet, cited in the FOE, explains COVID-19 is most commonly spread
“through close contact from person to person, including between people who
are physically near each other.” The CDC thus recommends isolation for
individuals who are within six feet of a COVID-19 case for a total of 15
minutes or more. Likewise, the FOE explains, “Controlling the spread of
COVID-19 is a challenge. A person who is infected with COVID-19 may have
no obvious symptoms, or no symptoms at all, yet still be infectious to others.”
Accordingly, there is a rational connection between a COVID-19 exposure and
a presumption that the exposed individual may have contracted COVID-19.
Nor do the provisions mandating that workers exposed to COVID-19
cases receive pay, benefits, and seniority while excluded from the workplace
30
exceed the Board’s authority.15 As noted above, the Board has broad
authority to “adopt, amend or repeal occupational safety and health
standards and orders.” (Lab. Code, § 142.3, subd. (a)(1).) It is entitled to
enact those safety standards it deems necessary in order to keep employees
free “from danger to [their] life, safety, or health” to the extent permitted by
their employment. (Lab. Code, § 6306, subd. (a).) In the context of the
COVID-19 pandemic, the ETS thus requires “employers to implement
multiple methods of protection,” such as “responding to COVID-19 exposures”
and “excluding COVID-19 cases from the workplace.” The FOE explained, in
connection with the regulations mandating exclusion from the workplace in
defined circumstances, “it is important that employees who are COVID-19
cases or who had exposure to COVID-19 do not come to work. Maintaining
employees’ earnings and benefits when they are excluded from the workplace
is important in ensuring that employees will notify their employers if they
test positive for COVID-19 or have an exposure to COVID-19, and stay away
from the workplace during the high-risk exposure period when they may be
infectious.” Excluding workers exposed to known COVID-19 cases thus
operates to protect other workers from potential exposure to COVID-19.
Similarly, mandating pay, benefits, and seniority during periods of exclusion
furthers the goals of encouraging employees to report positive COVID-19
cases and COVID-19 exposures, thus allowing employers to minimize
possible additional exposures to other workers. These goals all fall within the
15 We note the July 2021 revisions to California Code of Regulations,
title 8, section 3205 replaced the term “COVID-19 exposure” (former
subd. (b)(3)) with “ ‘[c]lose contact’ ” (current subd. (b)(1)). However, the
altered language is not materially different for the scope of issues raised by
this appeal. We thus use the terms interchangeably in this opinion.
31
Board’s authority to assure “safe and healthful working conditions.” (Lab.
Code, § 6300.)
Appellants next challenge the exception allowing employers to avoid
the mandated continuation of pay, benefits, and seniority during the
exclusion period by demonstrating any exclusion was not related to a work-
based COVID-19 exposure. Appellants assert an employee could be exposed
“anywhere,” making it impossible to prove exposure from a nonwork event.
Appellants thus contend Cal/OSHA should bear the burden of proving a
workplace exposure.
Section 3205, subdivision (c)(9) of title 8 of the California Code of
Regulations governs when employees must be excluded from the workplace.
Subdivisions (A) and (B) identify two categories of employees: those who
contract COVID-19, i.e., “COVID-19 cases,” and those who have been exposed
to a COVID-19 case, i.e., “close contact.” (Cal. Code Regs., tit. 8, § 3205,
subd. (c)(9)(A), (B).) Under certain circumstances, these employees are
entitled to pay, seniority, and other benefits during their period of exclusion
from the workplace. However, the regulation creates an exception regarding
the second category of excluded employees—i.e., those with COVID-19
exposure: “Subsection (c)(9)(C) does not apply where the employer
demonstrates that the close contact is not work related.” (Cal. Code Regs.,
tit. 8, § 3205, subd. (c)(9)(C), Exception 2.)
There is no ambiguity regarding the source of a close contact or
COVID-19 exposure. Close contact is defined as “being within six feet of a
COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour
period within or overlapping with the ‘high-risk exposure period’ defined by
this section.” (Cal. Code Regs., tit. 8, § 3205, subd. (b)(1).) “ ‘COVID-19
case’ ” is then defined as a person who “[h]as a positive ‘COVID-19 test’ as
32
defined in this section,” “[h]as a positive COVID-19 diagnosis from a licensed
health care provider,” “[i]s subject to a COVID-19-related order to isolate
issued by a local or state health official,” or “[h]as died due to COVID-19, in
the determination of a local health department.” (Id., subd. (b)(3).) If the
individual qualifying as a “COVID-19 case” is not a coworker, then the
exposure was not work related. Appellants fail to explain the ambiguity in
this structure.
While appellants contend other exclusions and resulting continuations
of pay and benefits require extensive review and involve hazards inherent to
the work, they ignore the unique circumstances presented by the COVID-19
pandemic. Other regulations addressing workplace hazards involve worker
exposure to toxic substances—not an infectious disease. There is no risk that
the exposed worker may then be a hazard to his or her coworkers.
Accordingly, those regulations involve various analyses not applicable here,
such as whether the employee could be transferred to other work. (See, e.g.,
Cal. Code Regs., tit. 8, § 5197, subd. (i)(1).) Here, however, a worker exposed
to COVID-19 becomes a new workplace hazard due to the nature of the virus.
And guidance from the CDC and the CDPH instruct that individuals exposed
to COVID-19 should quarantine. The more limited review in the case of
COVID-19 exposure is thus reasonable in light of the unique nature of the
pandemic.16 Accordingly, the Board did not abuse its discretion in
establishing regulations excluding workers exposed to COVID-19 cases from
16 Appellants also seem to assert exclusions and mandated pay,
benefits, and seniority must be connected to a hazard inherent in the
workplace, and COVID-19 is not such a hazard. To the contrary, COVID-19
is—at least currently—a hazard inherent in the workplace. Due to the scope
of the pandemic, COVID-19 poses a risk to any worker who is required to
work in person and in proximity to others.
33
the workplace and mandating a continuation of pay, benefits, and seniority
during such periods of exclusion.
D. Balancing the Harms
A trial court’s decision on a motion for a preliminary injunction “ ‘does
not amount to an adjudication of the ultimate rights in controversy. It
merely determines that the court, balancing the respective equities of the
parties, concludes that, pending a trial on the merits, the defendant should or
that he should not be restrained from exercising the right claimed by him [or
her].’ [Citations.] The general purpose of such an injunction is the
preservation of the status quo until a final determination of the merits of the
action. [Citations.] Thus, the court examines all of the material before it in
order to consider ‘whether a greater injury will result to the defendant from
granting the injunction than to the plaintiff from refusing it; . . .’ [Citations.]
In making that determination the court will consider the probability of the
plaintiff’s ultimately prevailing in the case and, it has been said, will deny a
preliminary injunction unless there is a reasonable probability that plaintiff
will be successful in the assertion of his rights. [Citations.] . . . ‘In the last
analysis the trial court must determine which party is the more likely to be
injured by the exercise of its discretion [citation] and it must then be
exercised in favor of that party.’ ” (Continental Baking Co. v. Katz (1968)
68 Cal.2d 512, 528.)
Neither appellants’ opening nor reply brief raises any argument with
respect to the balancing of harms. “An appellant’s failure to raise an
argument in its opening brief waives the issue on appeal.” 17 (Dieckmeyer v.
While appellants filed a declaration from David Scaroni, a partner at
17
Fresh Harvest, and a declaration from Carmen A. Ponce, the vice president
and general counsel, labor for Tanimura & Antle Fresh Foods, Inc. at the
same time they filed their opening brief, their opening brief makes no
34
Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260.)
Conversely, the Board argues “COVID-19 presented a serious and imminent
threat of harm” and it adopted the FOE and ETS based on that risk of harm
and after “interpreting complex scientific studies and public safety and
health guidance related to COVID-19 transmission; analyzing the protections
and coverage gaps in the existing safety and health regulatory scheme
protecting workers against exposure to airborne pathogens; and calculating
the most effective way to protect workers from the danger of having to report
to work in person during a dangerous pandemic.” Appellants thus have not
demonstrated the trial court erred in concluding the balance of harms
weighed in favor of respondents.
III. DISPOSITION
The trial court’s order denying appellants’ motion for preliminary
injunction is affirmed. Respondents may recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
mention of the declarations and does not raise any argument as to them. A
brief was also filed by NFIB Small Business Legal Center as amicus curiae.
That brief argues in part certain provisions of the ETS could deprive small
businesses of their labor force, the testing requirements are financially
ruinous, and the recordkeeping requirements impose onerous regulatory
obstacles. These issues go toward the potential harm caused by the ETS.
However, California courts generally refuse to consider arguments raised by
amicus curiae when those arguments are not urged by the parties on appeal.
“ ‘ “Amicus curiae must accept the issues made and propositions urged by the
appealing parties, and any additional questions presented in a brief filed by
an amicus curie will not be considered.” ’ ” (California Assn. for Safety
Education v. Brown (1994) 30 Cal.App.4th 1264, 1275.) As noted above,
appellants have not argued the balance of harm weighs in their favor.
35
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A162343
Western Growers Association v. California Occupational Safety and Health
Standards Board
36