San Francisco Superior Court Judge Ethan Schulman ruled yesterday that Cal/OSHA can continue to enforce its COVID-19 Emergency Temporary Standard Regulation (ETS), at least for now.

On February 25, 2021, Judge Schulman issued an order denying Plaintiffs' applications for a preliminary injunction halting enforcement of the Cal/OSHA's COVID-19 Emergency Temporary Standard Regulation (ETS) in two cases.

In an emotionally charged order, the Court explained that he was not going to be the first judge in the country to block "emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations, and deaths that follow in its wake."

The Plaintiffs sought injunctive relief on the grounds that the Cal/OSHA Board should not have adopted the ETS on an emergency basis, lacked authority to adopt the ETS, and that the ETS violated due process. The Court ruled that the Plaintiffs are not likely to win their cases on the merits, and, even if they were, the balance of interests weighs "heavily" in favor of curbing the spread of COVID-19, and thus immediate injunctive relief is not warranted.

The Court pointed to the high number of COVID-19 cases and deaths since the start of the Pandemic and the showing of community spread of COVID-19 in the workplace and found that the ETS' provisions do not exceed Cal/OSHA's authority.

First, the Court addressed Section 3205(c) of the ETS, which requires employers to maintain employees' pay and benefits for employees excluded from the workplace due to COVID-19. Acknowledging that the Board found that paying employees excluded from the workplace is "necessary to limit transmission of COVID-19 in the workplace," the Court ruled that there is "nothing novel about the requirement that employers pay workers' pay and benefits while they are on medical leave . . . Cal/OSHA for decades has enforced similar regulations requiring employers to maintain employees' earning, seniority rights, and benefits if they are removed from work due to exposure to lead, other toxic substances, or an airborne infectious disease."

Second, the Court, citing Cal/OSHA's broad regulatory authority, found that the Board's mandate regarding employee testing during the outbreak is also an "eminently proper exercise of its statutory authority" despite the fact that the federal government or other states have taken different approaches.

Finally, the Court found that the Plaintiffs failed to demonstrate a likelihood of prevailing on their due process claim because employers may obtain variances from the ETS from Cal/OSHA and may refute the rebuttable presumption that COVID-19 exposures are work-related. The availability of a variance in this instance, however, may present a “catch-22,” as it would require the employer to implement similar or greater burdens to be relieved of the ETS burdens.

The Court also noted the temporary nature of the ETS and found that the Plaintiffs had not shown that "even a single retailer has suffered significant costs as a result of complying with these requirements." In a stark assessment of the potential implications of this ruling, the Court further remarked that even if employers were "forced out of business as a result" of those "pecuniary burdens," this reality would not outweigh the potential public health risks posed by an injunction of the ETS.

Currently, the ETS is effective through September 2021. Most likely, the Court will not rule on the merits of the case before then, thus making the issue moot. Even if the Court did rule, based upon the Order, the Court mostly likely would deny Plaintiffs' request on the merits.

In light of the Court's ruling, employers must continue to adhere to the ETS and should monitor their practices to ensure they are in compliance. We can expect a record number of employee complaints regarding workplace safety violations and increased Cal/OSHA enforcement efforts, so it is imperative that employers can demonstrate both compliant practices and policies when Cal/OSHA investigators appear at the workplace.