Flower World, Inc. v. Joel Sacks

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOWER WORLD, INC., No. 21-35641
Plaintiff-Appellant,
D.C. No.
v. 3:21-cv-05305-
RJB
JOEL SACKS, Director of the
Washington Department of Labor
and Industries; CRAIG BLACKWOOD, OPINION
Acting Assistant Director of the
Washington Department of Labor
and Industries, in their personal
capacities; DOE, through X, in their
official capacities as employees of
the Washington Department of
Labor and Industries,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted June 10, 2022
Seattle, Washington
Filed August 11, 2022
2 FLOWER WORLD V. SACKS
Before: Sandra S. Ikuta and Eric D. Miller, Circuit Judges,
and Dean D. Pregerson,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of a
complaint for failure to state a claim and held that certain
mandates issued by the Governor of Washington to address
the public health crisis caused by the spread of coronavirus
(COVID-19) were not preempted by the Occupational Safety
and Health Act.
In May 2020, the Governor issued Proclamation 20-57,
“Concerning the Health of Agricultural Workers,” and an
addendum, “Agricultural COVID-19 Requirements”
(collectively, the “Proclamation”). The Proclamation
acknowledged the hazards posed by “the worldwide spread
of COVID-19” and prohibited “any agricultural employer
from continuing to operate beyond June 3, 2020, unless the
employer complied with all provisions of the Agriculture
COVID-19 Requirements – Provisions for All Worksites
and Work-Related Functions.”
*
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLOWER WORLD V. SACKS 3
The panel first held that plaintiff’s challenge to the
Proclamation was ripe for review because Washington’s
Department of Labor & Industries’ Division of Occupational
Safety and Health had issued a citation to plaintiff for
violation of the requirements set forth in the Proclamation
and imposed a $4,200 fine that had to be paid within fifteen
working days. There was nothing speculative about this
enforcement action.
The panel held that the Proclamation was not preempted
because the requirements in the Proclamation did not relate
to an occupational health and safety standard promulgated by
the Occupational Safety and Health Administration (OSHA).
In light of the Supreme Court’s reasoning in NFIB v. OSHA,
142 S. Ct. 661 (2021), OSHA lacked the authority to
promulgate a public health measure that would regulate the
general risk of COVID-19 in the workplace. Because OSHA
could not promulgate such a federal standard, none of its
existing regulatory standards could preempt a state’s general
public health and safety measures addressing the threats
posed by COVID-19. Rejecting OSHA’s broad interpretation
of its existing regulations as applying generally to COVID
hazards in the workplace, the panel construed the regulations
cited by plaintiff as addressing specific occupational hazards
caused by workplace processes that result in pollution at the
workplace, not the hazard of COVID-19 or other viruses
more generally. Accordingly, the panel held that the
Proclamation was not preempted by the Occupational Safety
and Health Act.
4 FLOWER WORLD V. SACKS
COUNSEL
Richard M. Stephens (argued), Stephens & Klinge LLP,
Bellevue, Washington, for Plaintiff-Appellant.
Anastasia R. Sandstrom (argued), Senior Counsel; Sarah
Kortokrax, Assistant Attorney General; Robert W. Ferguson,
Attorney General; Attorney General’s Office, Seattle,
Washington; for Defendants-Appellees.
OPINION
IKUTA, Circuit Judge:
This cases raises the question whether certain mandates
issued by the Governor of Washington to address the public
health crisis caused by the spread of coronavirus (COVID-19)
are preempted by the Occupational Safety and Health Act
(OSH Act). We hold that the mandates at issue are not
preempted by the OSH Act.
I
The OSH Act requires that every employer provide a
workplace that is “free from recognized hazards that are
causing or are likely to cause death or serious physical harm
to his employees” (the “general duty” clause) and “comply
with occupational safety and health standards promulgated”
by the Occupational Safety and Health Administration
(OSHA). 29 U.S.C. § 654(a). An “occupational safety and
health standard” is defined as “a standard which requires
conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably
FLOWER WORLD V. SACKS 5
necessary or appropriate to provide safe or healthful
employment and places of employment.” 29 U.S.C. § 652(8).
“The general duty clause applies when there are no specific
standards.” Donovan v. Royal Logging Co., 645 F.2d 822,
829 (9th Cir. 1981).
“[T]he OSH Act pre-empts all state ‘occupational safety
and health standards relating to any occupational safety or
health issue with respect to which a Federal standard has been
promulgated.’” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505
U.S. 88, 105 (1992) (plurality) (quoting 29 U.S.C. § 667(b)).1
A state which “desires to assume responsibility for
development and enforcement therein of occupational safety
and health standards relating to any occupational safety or
health issue with respect to which a Federal standard has been
promulgated” must submit a state plan for approval.
29 U.S.C. § 667(b). Because “Congress intended to subject
employers and employees to only one set of regulations, be
it federal or state,” Gade held that “the only way a State may
regulate an OSHA-regulated occupational safety and health
issue is pursuant to an approved state plan that displaces the
federal standards.” 505 U.S. at 99. If the state does not have
an approved plan, the federal standards concerning an issue
preempt state standards concerning that same issue. Id.Washington State adopted a workplace safety plan in
1973, see Washington Industrial Safety and Health Act
(WISHA), Wash. Rev. Code § 49.17, which was subsequently
1
We are bound by the Gade plurality opinion with respect to its
analysis of preemption because “a majority of the Court rejected the
notion of concurrent state and federal jurisdiction in areas where [OSHA]
issues a standard.” Industrial Truck Ass’n, Inc. v. Henry, 125 F.3d 1305,
1310 (9th Cir. 1997) (cleaned up).
6 FLOWER WORLD V. SACKS
approved by OSHA, see 29 C.F.R. § 1952.4. Like OSHA,
“two distinct duties arise from” WISHA: a “‘general duty’ to
maintain a workplace free from recognized hazards,” and “a
‘specific duty’ for employers to comply with WISHA
regulations.” Afoa v. Port of Seattle, 176 Wash. 2d 460, 471
(2013) (citing Wash. Rev. Code § 49.17.060); see also Wash.
Admin. Code § 296.307-045(1) (WISHA’s general duty
clause). WISHA is administered by Washington’s
Department of Labor & Industries’ Division of Occupational
Safety and Health (L&I).
II
Beginning in early 2020, the COVID pandemic posed
unprecedented challenges for the federal and state
governments to protect public health and safety. In February
2020, in response to the COVID challenge, the Governor of
Washington declared a state of emergency and issued
multiple proclamations addressing the public health and
safety issues raised by the pandemic. In May 2020, the
Governor issued Proclamation 20-57, “Concerning the Health
of Agricultural Workers,” and an addendum, “Agricultural
COVID-19 Requirements” (collectively, the
“Proclamation”). The Proclamation acknowledged the
hazards posed by “the worldwide spread of COVID-19” and
prohibited “any agricultural employer from continuing to
operate beyond June 3, 2020, unless the employer complies
with all provisions of the Agriculture COVID-19
Requirements – Provisions for All Worksites and
Work-Related Functions.” The Agricultural COVID-19
Requirements, which were applicable to all “orchards, fields,
dairies,” all operations listed as agricultural in WISHA
regulations, “all fruit- and vegetable-packing warehouses,”
FLOWER WORLD V. SACKS 7
and “employer- or operator-provided transportation and
housing,” included the following provisions:
(c) PPE. Employers, operators, and providers
must supply, at no cost to employees, all PPE
mandated by these requirements, including
gloves, goggles, face shields, face masks, and
face coverings. PPE must be clean and
available each workday.
Face coverings must be worn by all
employees in accordance with the governor’s
Proclamation 20-25.6, subsequent iterations of
the proclamation, and the related interpretive
guidance and exemptions set forth by L&I . . .
(d) Physical Distancing. Employers,
providers, and housing operators must ensure
physical distancing of six feet or more during
all interactions within the scope of
employment.
When strict physical distancing is not feasible
for a specific task, other prevention measures,
such as more protective PPE, barriers, and
negative pressure ventilation, are required. . . .
(j) At the beginning of each day, employers
must conduct a temperature check and review
the symptom checklist with employees
concerning themselves and their households.
All thermometers must be properly sanitized
between each use or each day. Any worker
8 FLOWER WORLD V. SACKS
with a temperature of 100.4°F or higher is
considered to have a fever.
Employers are not required to maintain logs
of the check-ins described by this subsection.2
Flower World, Inc. is a horticultural business in
Washington that grows and sells plants to the general public.
It employs approximately 100 workers. On July 28, 2020,
L&I issued a citation to Flower World which stated:
The employer did not ensure to furnish to
each employee a place of employment free
from recognized hazards that are causing or
likely to cause serious injury or death to
employees.
In this instance, the employer did not ensure
that the addendum to the Governor’s
Proclamation 20-57 (5/28/20) was met. The
addendum discusses the requirements
concerning the Health of Agricultural
Workers.
The following instances were not met:
-Social distancing of six (6) feet at all times
by all employees.
2
https://www.governor.wa.gov/sites/default/files/COVID19Agricultura
lSafetyPlan.pdf.
FLOWER WORLD V. SACKS 9
-Masks/Face coverings were not worn at all
times by all employees.
-Temperature checks at the beginning of each
work day are not being conducted.
Not following directed guidance for work
potentially exposes employees to the
Coronavirus which has been found to have the
potential for death.
NOTE: Employers must comply with all
conditions for operation required by
emergency proclamation issued under RCW
43.06.220, including Safe Start phased
reopening requirements for all business and
any industry specific requirements.
This violation was corrected during the
inspection. Assessed penalty: $4,200.00.
Along with this citation, L&I issued a citation invoice. It
stated that the penalty was for a serious violation of Wash.
Admin. Code § 296-307-045(1) (WISHA’s general duty
clause), in the amount of $4,200.00. It also stated that
payment was due within “15 working days from receipt of
this citation.”
In response to this citation, Flower World filed an appeal
with the review board for WISHA appeals. See Wash.
Admin. Code § 263-12-059.3 Flower World then filed suit in
3
The review board stayed this proceeding pending resolution of
Flower World’s district court action.
10 FLOWER WORLD V. SACKS
federal district court against Joel Sacks and Craig Blackwood,
two L&I officials in charge of enforcement, seeking
declaratory and injunctive relief under 42 U.S.C. § 1983 on
the ground that the state standards set forth in the
Proclamation for which Flower World was cited were
preempted by OSH Act.
The district court granted the L&I officials’ motion to
dismiss Flower World’s amended complaint for failure to
state a claim, and denied Flower World’s motion for
reconsideration. Flower World timely appealed. We have
jurisdiction under 28 U.S.C. § 1291.
III
The L&I officials first argue that we lack jurisdiction over
Flower World’s challenge to the Proclamation because it is
not ripe. We review this issue de novo. See Wolfson v.
Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010). An issue is
constitutionally ripe only if it is “definite and concrete, not
hypothetical or abstract.” Thomas v. Anchorage Equal Rts.
Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (citation
omitted). Where a plaintiff brings a pre-enforcement
challenge, the ripeness inquiry turns on “whether the
plaintiffs face a realistic danger of sustaining a direct injury
as a result of the statute’s operation or enforcement, or
whether the alleged injury is too imaginary or speculative to
support jurisdiction.” Id. (cleaned up).
The L&I officials’ ripeness challenge turns on their
argument that L&I lacks authority to enforce the
Proclamation because it is not a WISHA regulation or
standard. According to the L&I officials, the Proclamation
can be enforced only by law enforcement officials as a
FLOWER WORLD V. SACKS 11
criminal offense. See Wash. Rev. Code § 43.06.220(5) (“Any
person willfully violating any provision of an order issued by
the governor under this section is guilty of a gross
misdemeanor.”). The citation issued to Flower World,
according to the L&I officials, enforced WISHA’s general
duty clause, and the citation’s reference to the requirements
of the Proclamation merely provided examples of how the
employer could discharge the general duty to maintain a safe
workplace. Because Flower World was not cited for a
violation of the Proclamation, L&I officials claim, Flower
World’s challenge to the Proclamation is merely hypothetical
or speculative.
We disagree. Flower World’s claim is ripe because L&I
issued a citation to Flower World for violation of the
requirements set forth in the Proclamation and imposed a
$4,200 fine that had to be paid within fifteen working days.
There is nothing speculative about this enforcement action.
The argument that Flower World was not cited for a violation
of the Proclamation, but only for a violation of the general
duty clause, is belied by the citation itself. Although the
citation references the general duty clause, the citation
describes Flower World’s violation as failing to “ensure that
the addendum to the Governor’s Proclamation 20-57
(5/28/20) was met,” given that “[e]mployers must comply
with all conditions for operation required by emergency
proclamation issued under RCW 43.06.220.” The citation
listed the specific instances of Flower World’s alleged non-
compliance with the Proclamation, including failure to ensure
social distancing, mask/face covering, and temperature
checks. This is sufficient to establish enforcement of the
Proclamation’s requirements. Moreover, contrary to L&I
officials’ argument, WISHA does provide L&I with the
authority to enforce the Proclamation. See Wash. Admin.
12 FLOWER WORLD V. SACKS
Code § 296-800-14035(2) (“Employers must comply with all
conditions for operation required by emergency proclamation
issued under RCW 43.06.220.”); see also Wash. Rev. Code
§ 49.17.120. Therefore, Flower World’s challenge to L&I’s
enforcement of the requirements in the addendum to the
Proclamation is non-hypothetical even if L&I relied on its
power under the general duty clause to enforce the
Proclamation.
IV
We now turn to Flower World’s argument that the L&I
officials’ enforcement of the requirements set forth in the
Proclamation was unlawful because such requirements are
preempted by the OSH Act.
The threshold question here is whether the requirements
announced in the Proclamation are preempted because they
constitute a workplace health and safety standard “relating to
any occupational safety or health issue with respect to which
a Federal standard has been promulgated.” Gade, 505 U.S.
at 105 (quoting 29 U.S.C. § 667(b)).
The parties primarily dispute whether the Proclamation
qualifies as an occupational health and safety standard. The
L&I officials argue that the citation enforced only WISHA’s
general duty clause, and that using the general duty clause to
enforce COVID-19 safety protocols is not equivalent to the
creation of a “standard” under the OSH Act. In response,
Flower World argues that the citation expressly enforced the
requirements in the Proclamation, which constitutes an
occupational safety and health standard because “[a]ny state
law requirement designed to promote health and safety in the
workplace falls neatly within the Act’s definition of an
FLOWER WORLD V. SACKS 13
‘occupational safety and health standard’” for purposes of
preemption. Id.Rather than address this dispute, we resolve this appeal
based on the L&I officials’ secondary argument, that the
Proclamation is not preempted because the requirements in
the Proclamation do not relate to an occupational health and
safety standard promulgated by OSHA.
The Supreme Court recently provided relevant guidance
on this issue. See NFIB v. OSHA, 142 S. Ct. 661 (2021). In
NFIB, the Supreme Court considered a rule issued by OSHA
in November 2021, which required any employer with at least
100 employees to “develop, implement, and enforce a
mandatory COVID-19 vaccination policy.” Id. at 664(quoting 86 Fed. Reg. 61,402, 61,402 (Nov. 5, 2021)). The
employer was required to “verify the vaccination status of
each employee and maintain proof of it.” Id. (citing 86 Fed.
Reg. at 61,552). Employers were allowed (but not required)
to adopt a policy offering an alternative to vaccination, which
would require unvaccinated workers to “undergo [weekly]
COVID-19 testing and wear a face covering at work in lieu of
vaccination.” Id. (quoting 86 Fed. Reg. at 61,402).
Employees who did not comply with the policy had to be
“removed from the workplace.” Id. (quoting 86 Fed. Reg. at
61,532). Noncompliant employers would be fined. Id.
The Supreme Court stayed enforcement of the rule,
holding that the applicants for a stay were likely to prevail in
their argument that OSHA lacked authority to impose the
rule. Id. at 663. In reaching this conclusion, the Supreme
Court provided guidance regarding the scope of OSHA’s
authority.
14 FLOWER WORLD V. SACKS
First, the Supreme Court stated that OSHA has “only the
authority that Congress has provided,” and that Congress
authorized the agency to promulgate workplace safety
standards, not broad public health measures. Id. at 665.
Congress must “speak clearly when authorizing an agency to
exercise powers of vast economic and political significance.”
Id. (quoting Alabama Assn. of Realtors v. Department of
Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per
curiam)).
In distinguishing between the spheres of workplace safety
and public health, the Supreme Court emphasized the “crucial
distinction” “between occupational risk and risk more
generally.” Id. at 666. Workplace safety standards address
occupation-specific risks and hazards that employees face at
work. See id. at 665. Such dangers must be tethered in a
“causal sense” to the workplace, and they differ “in both
degree and kind” from everyday risks that all persons face.
Id. A rule addressing the risks posed by COVID is a
permissible workplace safety standard under the OSH Act
only “[w]here the virus poses a special danger because of the
particular features of an employee’s job or workplace,” such
as where the employee is a researcher working with the
COVID-19 virus, or when “working in particularly crowded
or cramped environments.” Id. at 665–66. By contrast,
public health measures address universal risks, like “crime,
air pollution, or any number of communicable diseases.” Id.
at 665. Such threats do not have a causal relationship to the
workplace but, instead, are “hazards of daily life.” Id. They
do not become workplace hazards “simply because most
Americans have jobs and face those same risks while on the
clock.” Id.FLOWER WORLD V. SACKS 15
Applying this framework, the Court held that OSHA’s
vaccine mandate is a public health measure, not a workplace
safety standard, because it broadly addresses a hazard of daily
life faced by Americans generally. Id. at 665. The Court also
distinguished a vaccine mandate from “a fire or sanitation
regulation” because it “cannot be undone at the end of the
workday.” Id. Because “permitting OSHA to regulate the
hazards of daily life” would “significantly expand OSHA’s
regulatory authority without clear congressional
authorization,” id., the Court concluded that the vaccine
mandate “extend[ed] beyond the agency’s legitimate reach,”
id. at 666.
In light of the Supreme Court’s reasoning in NFIB, OSHA
lacks the authority to promulgate a public health measure that
would regulate the general risk of COVID-19 in the
workplace. See id. Because OSHA cannot promulgate such
a federal standard, none of its existing regulatory standards
can preempt a state’s general public health and safety
measures addressing the threats posed by COVID-19.
Opposing this conclusion, Flower World argues that
existing OSHA standards do regulate COVID in the
workplace. See 29 C.F.R. § 1910.132, 29 C.F.R. § 1910.134.
Flower World bases this argument on a memorandum and
website post circulated by OSHA before NFIB was decided.
In a July 2021 memorandum, the Acting Director of
Enforcement Programs stated that “[s]everal OSHA standards
may apply [to COVID-19], depending on the circumstances,”
and provided a “list of general industry standards applicable
to infections diseases, such as COVID-19.” See Updated
Interim Enforcement Response Plan for Coronavirus Disease
2019 (COVID-19) (July 2021). The list included “General
Requirements-Personal Protective Equipment,” 29 C.F.R.
16 FLOWER WORLD V. SACKS
§ 1910.132, which states that PPE “shall be provided, used,
and maintained . . . wherever it is necessary by reasons of
hazards of processes or environment, chemical hazards,
radiological hazards, or mechanical irritants encountered in
a manner capable of causing injury or impairment in the
function of any part of the body through absorption,
inhalation or physical contact.” The list also included
“Respiratory Protection,” 29 C.F.R. § 1910.134, which
includes “the control of those occupational diseases caused by
breathing air contaminated with harmful dusts, fogs, fumes,
mists, gases, smokes, sprays, or vapors,” id. § 1910.134(a)(1).
Additionally, before circulating that memorandum, OSHA
had posted a “Frequently Asked Questions” section on its
website, which provided a list of the “most relevant” OSHA
requirements addressing COVID-19, including 29 C.F.R.
§ 1910.132, § 1910.134, and the OSHA general duty clause.
In light of NFIB, we must reject OSHA’s broad
interpretation of its existing regulations as applying generally
to COVID hazards in the workplace. While we defer to an
agency’s interpretation of its own regulations under some
circumstances, “if the law gives an answer—if there is only
one reasonable construction of a regulation—then a court has
no business deferring to any other reading, no matter how
much the agency insists it would make more sense.” Kisor v.
Wilkie, 139 S. Ct. 2400, 2415 (2019). Here, NFIB makes
clear that we may not interpret these regulations as applying
to general risks of COVID in the workplace, as that would
exceed OSHA’s authority. See 142 S. Ct. at 665. Rather, we
construe the regulations cited by Flower World as addressing
specific occupational hazards caused by workplace processes
that result in pollution at the workplace, not the hazard of
COVID-19 or other viruses more generally. For example, 29
C.F.R. § 1910.134 states that employers should seek to
FLOWER WORLD V. SACKS 17
protect employees from respiratory hazards “as far as feasible
by accepted engineering control measures (for example,
enclosure or confinement of the operation, general and local
ventilation, and substitution of less toxic materials),” id.§ 1910.134(a)(1), and by its own terms applies only to
general industry, shipyards, marine terminals, longshoring,
and construction, id. § 1910.134. That regulation therefore
governs the specific hazards and “occupational risk[s]” of
those workplaces. NFIB, 142 S. Ct. at 666. Similarly, the
personal protective equipment requirement under 29 C.F.R.
§ 1910.132 applies to “hazards of processes or environment,
chemical hazards, radiological hazards, or mechanical
irritants” that are unique to the employer’s workplace. This
is confirmed by the types of cases in which the rule applies.
See, e.g., Alvarez v. IBP, Inc., 339 F.3d 894, 897 (9th Cir.
2003), aff'd, 546 U.S. 21 (2005) (applying the rule to meat
packing plants where employees must wear sanitary
garments, hard hats, and gloves); C&W Facility Servs., Inc.
v. Sec'y of Lab., Occupational Safety & Health Rev. Comm'n,
22 F.4th 1284, 1285 (11th Cir. 2022) (determining whether
the rule requires employers to provide personal flotation
devices to pressure washers on a boat dock); Jacobs Field
Servs. N. Am., Inc. v. Scalia, 960 F.3d 1027, 1037 (8th Cir.
2020) (applying the rule to an electrical contractor).
In contrast to these workplace specific standards, the
Proclamation is a public health measure that broadly
addresses a hazard of daily life faced by Americans generally.
Unlike researchers working with the COVID-19 virus, or
employees “working in particularly crowded or cramped
environments,” NFIB, 142 S. Ct. at 666, agricultural workers
face no particular risk from COVID-19 other than those they
share with citizens in general. As a public health measure,
the Proclamation does not relate “to any occupational safety
18 FLOWER WORLD V. SACKS
or health issue with respect to which a Federal standard has
been promulgated,” Gade, 505 U.S. at 105 (quoting 29 U.S.C.
§ 667(b)), and employers and their employees are subjected
“to only one set of regulations” addressing the general risk of
COVID-19, those of the state, id. at 99. Accordingly, the
Proclamation is not preempted by the OSH Act. See id.
AFFIRMED.