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Suit describes new rules as unneeded, impractical

Issue Date: January 6, 2021
By Dave Kranz

Saying a set of emergency COVID-19 workplace rules "does not solve a crisis as much as it creates one," a coalition of agricultural and business groups sued a state workplace agency and its governing board, seeking to have the rules set aside.

The suit, filed last week in Los Angeles County Superior Court, cites "unprecedented and sweeping" rules adopted at the end of November by the California Occupational Safety and Health Standards Board. Plaintiffs in the lawsuit include the California Farm Bureau, California Association of Winegrape Growers, California Business Roundtable, Grower-Shipper Association of Central California, Ventura County Agricultural Association and Western Growers.

In taking the action, the agricultural organizations stressed their ongoing desire to assure the health and safety of employees at farms, ranches and agricultural businesses.

"There does not appear to be a systemic breakdown in compliance or an urgent need for new regulations," the lawsuit said. "To the contrary, all employers, including those in critical infrastructure sectors such as agriculture, are highly motivated to maintain a safe and healthy workforce and continue to expend substantial resources to protect workers from infection in the workplace and to pay for leave when a worker tests positive for COVID-19."

Among its provisions, the emergency rules adopted by the Cal/OSHA Standards Board require employers to provide "no cost" testing during working hours for employees with potential COVID-19 exposure and to offer paid leave and benefits to any employee reporting exposure. The standards mandate capacity restrictions on employer-provided housing and set physical-distancing requirements for employer-provided transportation.

While the standards place "unprecedented financial and operational costs on all employers in this state," the farm groups' lawsuit said, "it imposes unique threats to the agricultural industry."

For example, requirements for continuous COVID-19 testing of employees are "unrealistic for employers in remote areas" with limited access to testing services, the lawsuit said.

Housing requirements in the standards could require employers to forfeit their ability to comply with guestworker visa programs such as the H-2A program for agricultural visas, the lawsuit said, especially because employers must try to find additional housing in "already scarce housing markets."

"Worse, by directing employers to cut room occupancy in half, housing set aside by employers to isolate workers who test positive may no longer be available, thus compounding the risk of COVID-19 spread rather than alleviating the problem," the suit said.

California Farm Bureau President Jamie Johansson said the standards represent "only the latest manifestation of the California state government's regulatory overreach, with constantly new and changing regulatory dictates imposed on our members' businesses, in ways large and small, that now seem to be handed down on a daily basis."

Johansson and other employers' representatives noted the Cal/OSHA board had waited nine months after the start of the pandemic to enact the "emergency" rules and had failed to demonstrate an emergency need for the standards, in light of existing regulations and enforceable guidance.

"Perhaps the most misguided aspect" of the standards, the lawsuit said, is that the Cal/OSHA Board "turned its back on what was working, including its own performance-based, objective criteria standards" for specific businesses and industries.

Employers and their employees in critical sectors such as agriculture, the lawsuit said, "had no choice but to remain open and bear the brunt of COVID-19 during the first half of the year, when the entire nation was learning about the virus, how it is transmitted, and how it may be slowed. In many ways, agriculture was a leader in developing best practices based on actual experience."

"We believe there are unconsidered mitigation steps that have and would continue to better protect farmworkers while allowing our farmers to continue to produce a consistent supply of fruits and vegetables," said Christopher Valadez, president of the Grower-Shipper Association of Central California.

The president and CEO of Western Growers, Dave Puglia, said the Cal/OSHA board had imposed "unrealistic, unfounded and economically harmful standards" without regard to the impact new safety measures have had in mitigating the spread of COVID-19 in the workplace through "extraordinary efforts by employers and employees alike."

Johansson said the regulations "will disrupt food supply operations all along the line, but it will be especially hard on our 20,000 small family farming members." Farmers must now "react to a rule handed down by fiat instead of going through a deliberate regulatory process where the voices of farmers would be heard," he said.

The lawsuit said "complex, prescriptive, and unprecedented regulations of this nature should have been publicly vetted" through formal notice-and-comment procedures. Instead, it said, the board made the only version of the standards available just one week before they were adopted on an emergency basis.

Johansson said the farm groups believe they have a strong case before the court and that they hope the suit may encourage Gov. Gavin Newsom and Cal/OSHA to "reconsider this hasty and ill-considered action."

Regardless, he said, the lawsuit might lead to discussions with the agency about "reasonable accommodations" that recognize "the monumental efforts agricultural employers have already made to protect their employees."

(Dave Kranz is editor of Ag Alert. He may be contacted at dkranz@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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