A coalition of agricultural and business employers has filed a lawsuit in Los Angeles Superior Court challenging the COVID-19 related emergency temporary standards (ETS) recently approved by the California Occupational Safety and Health Standards Board (Board). The complaint alleges, among other things, that the Board lacks statutory authority to impose many of the sweeping measures of the ETS on California employers.
For California’s multi-generational farmers, the health and safety of their employees and the consumers they serve is their top priority.
“In the weeks and months following Governor Newsom’s emergency declaration in March, California farmers and processors moved quickly to implement dramatic new safety practices aimed at mitigating the spread of COVID-19 in the workplace,” said Dave Puglia, President & CEO of Western Growers. “While these measures helped reduce transmission in workplaces, this virus has swept through communities large and small in spite of lockdown orders and mask mandates, and through every sector of the economy as well despite extraordinary efforts by employers and employees alike. The Board imposed unrealistic, unfounded and economically harmful standards in total disregard of these realities. We have no choice but to seek judicial relief.”
The standards promulgated by the Board are unprecedented and sweeping. They were adopted with little public notice or opportunity for comment based on a purported “finding of emergency” and a declared need for immediate action, even though it took the Board nine months to enact these rules. Furthermore, Cal/OSHA staff insisted the ETS were not necessary for the agency to enforce the continually evolving general and industry-specific guidelines for the prevention of COVID-19. As stated in the complaint, “the ETS does not solve a crisis as much as it creates one.”
“We take this unfortunate yet serious action because we believe there are unconsidered mitigation steps that have and would continue to better protect farm workers 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. “As this pandemic has shown us over the last several months, it is imperative that science and data drive policy. That is at the core of what we seek in this lawsuit.”
The ETS create significant new obligations and liabilities for employers, and subject well-meaning California farmers and other businesses to additional enforcement actions and substantial penalties. The practical effect of these emergency standards is to shift the public health and economic costs of COVID-19 monitoring, investigation, compliance and remediation onto employers, all without any consideration of the financial damage inflicted on businesses already struggling to recover from the pandemic.
“These regulations will disrupt food supply operations all along the line, but it will be especially hard on our 20,000 small family farming members,” said Jamie Johansson, President of the California Farm Bureau Federation. “They and their employees are the unsung heroes of the pandemic but once again, they must react to a rule handed down by fiat instead of going through a deliberate regulatory process where the voices of farmers would be heard. We hope the court forces government to follow the law.”
It is important to note that the ETS will have a disproportionate impact on California farmers and their employees since one aspect of the regulations is to substantially reduce and eliminate vitally needed agricultural housing during a statewide housing crisis. A reduction in already-scarce housing will directly impact farmworker communities and harm rural economies across the state that depend on agriculture.
The lawsuit filed by lead attorney David A. Schwarz, Kent R. Raygor and Barbara Taylor, with Sheppard Mullin, argues that in enacting the emergency regulations without due process, the Board failed to explain the causal link between the ETS and the emergency situation to be addressed, or to adequately justify the necessity of the new rules. Additionally, the complaint contends that many of the regulations have nothing to do with workplace health or occupational safety but are designed to address non-work-related COVID-19 exposure risks.
Click here for a fact sheet that details the basis for the legal challenge.
Click here for the full text of the complaint with exhibits.
The six plaintiff organizations are listed below:
COVID-19 is a health crisis in the United States but major industries, like agriculture, chemical manufacturing, oil and gas exploration and production, all need to keep functioning as essential businesses in the midst of the crisis. The response to COVID-19 has core parallels to major industrial accident response, which involves deploying the right resources for the task. Every incident, be it a fire, explosion, or a government inspection and citation for regulatory compliance failures involves four key elements of response: (1) the immediate response; (2) the extended response; (3) compliance and prevention; and (4) preparedness/lessons learned to improve. This lifecycle of an incident applies equally to a COVID-19 contact among your employees or customers. Make no mistake. The stakes are high. Recently, Cal/OSHA issued COVID-19 related citations to two companies of over $200,000 each, one to a frozen food manufacturer and the other to a temporary employment agency. New legislation that becomes effective next year gives Cal/OSHA expanded authority to issue Orders Prohibiting Use for workplaces that pose risk of an “imminent hazard” relating to COVID-19. In other words, they can shut your plant down if you don’t have the right procedures in place to respond to a COVID-19 incident.
Processing plant managers are accustomed to incidents, such as injuries, agency inspections, or citations (hopefully not too frequently with respect to citations); applying the process in the context of COVID-19 can work extremely well, even where handling these situations requires adjustment for the particular crisis at hand. In every crisis, the approach needs to be tailored, and COVID-19 incidents are no different.
Examples of how a COVID-19 response needs to be tailored include determining work-relatedness to a positive test to COVID-19, identifying close contacts, identifying the agencies to whom notifications must be provided, and contact tracing for potentially exposed employees, testing, and implementing isolation protocols. In the context of COVID-19, agriculture companies need to be keenly aware of increased Cal/OSHA oversight, as the agency has identified agricultural processing as a priority for enforcement because agricultural processing facility workers have been disproportionately impacted.
When confronting a COVID-19 incident, follow these useful tips to help minimize liability and potential for citation by the government.
There’s a saying in incident response: your greatest exposure is not the incident itself but whether you follow the regulations for reporting and responding to the incident. That’s true for a major chemical release from your operations and a COVID-19 incident, alike. When the crisis emerged, several federal and state agencies provided guidance documents to companies on how to address potential cases of COVID-19. Like the crisis, the guidance is evolving. The government continues to update its approach and has even offered tailored to specific industries. Following the agency guidance will put a facility in a much stronger compliance position when faced with a compliance inspection or determination of work-relatedness.
Some key recent government guidance specific to the agricultural processing industry is listed below:
Understand requirements for reporting employee cases to Cal/OSHA. Any serious injury, illness, or death occurring in any place of employment or in connection with any employment must be reported by the employer to the local Cal/OSHA district office immediately. For COVID-19, this includes inpatient hospitalizations and deaths among employees.
On September 17, 2020, Governor Newsom also signed into law AB 685 which enhances reporting requirements to local health authorities in the event of a COVID-19 outbreak in the worksite. The law takes effect on January 1, 2021.
Employers should also check local guidance to determine if there are other investigation, reporting, or recording obligations triggered by a positive COVID-19 case.
Finally, recognize that if an employee is out with COVID-19 or quarantined, other government obligations, like environmental reporting may fall by the wayside in their absence. Develop a plan to ensure your ongoing government reporting obligations are being met, even those not COVID-19-related. Having an employee out due to COVID-19 is likely not going to serve as an acceptable excuse for environmental noncompliance.
To comply with Cal/OSHA requirements, plant managers should ensure their companies are investigating positive COVID-19 determinations in a timely manner to identify any work-related factors and to identify close contacts. This will protect employees, comply with Cal/OSHA requirements, and provide information that may be needed to in regards to the “disputable presumption” that exists in California for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023.
COVID-19 related citations recently issued by Cal/OSHA included a failure to investigate about 20 COVID-19 illnesses and one death for a food manufacturer. Cal/OSHA’s news release highlighted that Cal/OSHA created guidance for many industries in multiple languages including videos, daily checklists and detailed guidelines on how to protect workers from the virus. This guidance is meant to provide a roadmap for employers on their existing obligations to protect workers from COVID-19. If you don’t conduct required investigations, you will be placing your company at risk of being shut down through Cal/OSHA’s expanded authority to issue Orders Prohibiting Use for workplaces that pose a risks of an “imminent hazard” relating to COVID-19.
As part of the investigation, additional employee cases and close contacts (within six feet for fifteen minutes or more) should be identified in accordance with the regulations and guidance. The facility will then need to conduct testing or alternative methods (e.g., contact tracing or quarantining) in consultation with the local health department to control the outbreak.
All potentially exposed employees must be notified and employers must meet obligations regarding confidentiality of employees with suspected or confirmed COVID-19 infection as required by the Americans with Disabilities Act (“ADA”) and Health Insurance Portability and Accountability Act (“HIPAA”).
In the July 29, 2020 COVID-19 Guidance for agriculture and livestock, the state of California recommended that each facility establish a written, workplace-specific COVID-19 prevention plan, perform a comprehensive risk assessment of all work areas and work tasks, and designate a person at each facility to implement the plan. The plan should include sanitation practices, physical distancing, individual control measures, screening, and other incidental practices to prevent the spread amongst workers. Upon completion of the incident investigation, the facility should update the plan as needed to prevent further cases.
Conclusion
COVID-19 presents unique challenges to processing plant managers responding to incidents because of the difficulty in determining the source of infection, agency notification and attention, contact tracing, employee notification, testing, control measures, and return to work. Like any incident, COVID-19 incident response should focus on: (1) the immediate response by making required agency notifications and dealing with the immediate employee concerns including contact tracing; (2) the extended response by conducting an incident investigation; (3) compliance and prevention by conducting testing or implement isolation protocols; and (4) preparedness/lessons learned to improve by reviewing and updating the facility COVID-19 plan. Processing plant managers who work quickly and diligently to respond to a COVID-19 incident will reap the benefit of minimizing regulatory scrutiny protecting employees and comply with legal reporting and notification requirements. They should also regularly check local, state, and federal guidance to determine if there are new or revised investigation, reporting, or recording obligations triggered by a positive COVID-19. – By Daniel J. Grucza & Shannon S. Broome
Dan Grucza is Counsel with Hunton Andrews Kurth LLP. He regularly advises companies on health and safety issues and has been a speaker and author on COVID-19 response issues and is a lead member of the firm’s incident response practice.
Shannon S. Broome is the Managing Partner of Hunton Andrews Kurth’s San Francisco office and leads its environmental practice in California. She routinely advises clients on Cal/OSHA compliance issues and on major accident and other incident response for industrial facilities.
COVID-19 is a health crisis in the United States but major industries, like agriculture, chemical manufacturing, oil and gas exploration and production, all need to keep functioning as essential businesses in the midst of the crisis. The response to COVID-19 has core parallels to major industrial accident response, which involves deploying the right resources for the task. Every incident, be it a fire, explosion, or a government inspection and citation for regulatory compliance failures involves four key elements of response: (1) the immediate response; (2) the extended response; (3) compliance and prevention; and (4) preparedness/lessons learned to improve. This lifecycle of an incident applies equally to a COVID-19 contact among your employees or customers. Make no mistake. The stakes are high. Recently, Cal/OSHA issued COVID-19 related citations to two companies of over $200,000 each, one to a frozen food manufacturer and the other to a temporary employment agency. New legislation that becomes effective next year gives Cal/OSHA expanded authority to issue Orders Prohibiting Use for workplaces that pose risk of an “imminent hazard” relating to COVID-19. In other words, they can shut your plant down if you don’t have the right procedures in place to respond to a COVID-19 incident.
Processing plant managers are accustomed to incidents, such as injuries, agency inspections, or citations (hopefully not too frequently with respect to citations); applying the process in the context of COVID-19 can work extremely well, even where handling these situations requires adjustment for the particular crisis at hand. In every crisis, the approach needs to be tailored, and COVID-19 incidents are no different.
Examples of how a COVID-19 response needs to be tailored include determining work-relatedness to a positive test to COVID-19, identifying close contacts, identifying the agencies to whom notifications must be provided, and contact tracing for potentially exposed employees, testing, and implementing isolation protocols. In the context of COVID-19, agriculture companies need to be keenly aware of increased Cal/OSHA oversight, as the agency has identified agricultural processing as a priority for enforcement because agricultural processing facility workers have been disproportionately impacted.
When confronting a COVID-19 incident, follow these useful tips to help minimize liability and potential for citation by the government.
There’s a saying in incident response: your greatest exposure is not the incident itself but whether you follow the regulations for reporting and responding to the incident. That’s true for a major chemical release from your operations and a COVID-19 incident, alike. When the crisis emerged, several federal and state agencies provided guidance documents to companies on how to address potential cases of COVID-19. Like the crisis, the guidance is evolving. The government continues to update its approach and has even offered tailored to specific industries. Following the agency guidance will put a facility in a much stronger compliance position when faced with a compliance inspection or determination of work-relatedness.
Some key recent government guidance specific to the agricultural processing industry is listed below:
Understand requirements for reporting employee cases to Cal/OSHA. Any serious injury, illness, or death occurring in any place of employment or in connection with any employment must be reported by the employer to the local Cal/OSHA district office immediately. For COVID-19, this includes inpatient hospitalizations and deaths among employees.
On September 17, 2020, Governor Newsom also signed into law AB 685 which enhances reporting requirements to local health authorities in the event of a COVID-19 outbreak in the worksite. The law takes effect on January 1, 2021.
Employers should also check local guidance to determine if there are other investigation, reporting, or recording obligations triggered by a positive COVID-19 case.
Finally, recognize that if an employee is out with COVID-19 or quarantined, other government obligations, like environmental reporting may fall by the wayside in their absence. Develop a plan to ensure your ongoing government reporting obligations are being met, even those not COVID-19-related. Having an employee out due to COVID-19 is likely not going to serve as an acceptable excuse for environmental noncompliance.
To comply with Cal/OSHA requirements, plant managers should ensure their companies are investigating positive COVID-19 determinations in a timely manner to identify any work-related factors and to identify close contacts. This will protect employees, comply with Cal/OSHA requirements, and provide information that may be needed to in regards to the “disputable presumption” that exists in California for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023.
COVID-19 related citations recently issued by Cal/OSHA included a failure to investigate about 20 COVID-19 illnesses and one death for a food manufacturer. Cal/OSHA’s news release highlighted that Cal/OSHA created guidance for many industries in multiple languages including videos, daily checklists and detailed guidelines on how to protect workers from the virus. This guidance is meant to provide a roadmap for employers on their existing obligations to protect workers from COVID-19. If you don’t conduct required investigations, you will be placing your company at risk of being shut down through Cal/OSHA’s expanded authority to issue Orders Prohibiting Use for workplaces that pose a risks of an “imminent hazard” relating to COVID-19.
As part of the investigation, additional employee cases and close contacts (within six feet for fifteen minutes or more) should be identified in accordance with the regulations and guidance. The facility will then need to conduct testing or alternative methods (e.g., contact tracing or quarantining) in consultation with the local health department to control the outbreak.
All potentially exposed employees must be notified and employers must meet obligations regarding confidentiality of employees with suspected or confirmed COVID-19 infection as required by the Americans with Disabilities Act (“ADA”) and Health Insurance Portability and Accountability Act (“HIPAA”).
In the July 29, 2020 COVID-19 Guidance for agriculture and livestock, the state of California recommended that each facility establish a written, workplace-specific COVID-19 prevention plan, perform a comprehensive risk assessment of all work areas and work tasks, and designate a person at each facility to implement the plan. The plan should include sanitation practices, physical distancing, individual control measures, screening, and other incidental practices to prevent the spread amongst workers. Upon completion of the incident investigation, the facility should update the plan as needed to prevent further cases.
Conclusion
COVID-19 presents unique challenges to processing plant managers responding to incidents because of the difficulty in determining the source of infection, agency notification and attention, contact tracing, employee notification, testing, control measures, and return to work. Like any incident, COVID-19 incident response should focus on: (1) the immediate response by making required agency notifications and dealing with the immediate employee concerns including contact tracing; (2) the extended response by conducting an incident investigation; (3) compliance and prevention by conducting testing or implement isolation protocols; and (4) preparedness/lessons learned to improve by reviewing and updating the facility COVID-19 plan. Processing plant managers who work quickly and diligently to respond to a COVID-19 incident will reap the benefit of minimizing regulatory scrutiny protecting employees and comply with legal reporting and notification requirements. They should also regularly check local, state, and federal guidance to determine if there are new or revised investigation, reporting, or recording obligations triggered by a positive COVID-19. – By Daniel J. Grucza & Shannon S. Broome
Dan Grucza is Counsel with Hunton Andrews Kurth LLP. He regularly advises companies on health and safety issues and has been a speaker and author on COVID-19 response issues and is a lead member of the firm’s incident response practice.
Shannon S. Broome is the Managing Partner of Hunton Andrews Kurth’s San Francisco office and leads its environmental practice in California. She routinely advises clients on Cal/OSHA compliance issues and on major accident and other incident response for industrial facilities.
Cal/OSHA is reminding employers that California’s protection from wildfire smoke standard is still in effect, and they must take steps to protect their workers from harmful exposure to unhealthy air due to wildfire smoke.
“Employers are obligated to protect their outdoor workers and must evaluate the health hazards posed by wildfire smoke,” said Cal/OSHA Chief Doug Parker. “If employers cannot move operations indoors where air is adequately filtered and they do not have access to respiratory protection, they may need to halt operations until the outdoor air quality improves.”
Smoke from wildfires contains chemicals, gases and fine particles that can harm health. The greatest hazard comes from breathing fine particles in the air (called PM2.5), which can reduce lung function, worsen asthma or other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing. These types of respiratory conditions also make the effects of COVID-19 more severe.
If employers move operations indoors or into enclosed spaces, they should be sure to follow guidelines for prevention of COVID-19 transmission in the workplace.
When wildfire smoke affects a worksite, employers must monitor the air quality index (AQI) for PM2.5. Employers can monitor the AQI using the following websites:
If the AQI for PM2.5 is 151 or greater, employers must take the following steps to protect employees:
“Cal/OSHA is working diligently to identify viable available temporary alternatives that would provide workers with an acceptable alternative to a compliant respirator such as an N-95 mask,” added Chief Parker.
CalOES and the California Department of Food and Agriculture are working in partnership to provide approximately one million N-95 masks to help protect farmworkers from wildfire smoke. County Agricultural Commissioners in affected counties will distribute the masks.
If the AQI for PM2.5 exceeds 500, respirator use is required. Employers must ensure employees uses respirators and implement a respiratory protection program as required in California’s respiratory standard. For information or help on developing a respiratory protection program, see Cal/OSHA’s Respiratory Protection Fact Sheet.
Guidance for employers and workers on working safely in conditions with smoke caused by the wildfires is available on Cal/OSHA’s web page, including information for protecting outdoor workers, details on how to protect indoor workers from outdoor air pollution, and frequently asked questions about N95 masks.
Information on current wildfires is available from CalFire and the Incident Information System website.
Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employers and workers who have questions or need assistance with workplace health and safety programs can call Cal/OSHA’s Consultation Services Branch at 800-963-9424.
Complaints about workplace safety and health hazards can be filed confidentially with Cal/OSHA district offices. Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734).
Cal/OSHA is reminding employers that California’s protection from wildfire smoke standard is still in effect, and they must take steps to protect their workers from harmful exposure to unhealthy air due to wildfire smoke.
“Employers are obligated to protect their outdoor workers and must evaluate the health hazards posed by wildfire smoke,” said Cal/OSHA Chief Doug Parker. “If employers cannot move operations indoors where air is adequately filtered and they do not have access to respiratory protection, they may need to halt operations until the outdoor air quality improves.”
Smoke from wildfires contains chemicals, gases and fine particles that can harm health. The greatest hazard comes from breathing fine particles in the air (called PM2.5), which can reduce lung function, worsen asthma or other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing. These types of respiratory conditions also make the effects of COVID-19 more severe.
If employers move operations indoors or into enclosed spaces, they should be sure to follow guidelines for prevention of COVID-19 transmission in the workplace.
When wildfire smoke affects a worksite, employers must monitor the air quality index (AQI) for PM2.5. Employers can monitor the AQI using the following websites:
If the AQI for PM2.5 is 151 or greater, employers must take the following steps to protect employees:
“Cal/OSHA is working diligently to identify viable available temporary alternatives that would provide workers with an acceptable alternative to a compliant respirator such as an N-95 mask,” added Chief Parker.
CalOES and the California Department of Food and Agriculture are working in partnership to provide approximately one million N-95 masks to help protect farmworkers from wildfire smoke. County Agricultural Commissioners in affected counties will distribute the masks.
If the AQI for PM2.5 exceeds 500, respirator use is required. Employers must ensure employees uses respirators and implement a respiratory protection program as required in California’s respiratory standard. For information or help on developing a respiratory protection program, see Cal/OSHA’s Respiratory Protection Fact Sheet.
Guidance for employers and workers on working safely in conditions with smoke caused by the wildfires is available on Cal/OSHA’s web page, including information for protecting outdoor workers, details on how to protect indoor workers from outdoor air pollution, and frequently asked questions about N95 masks.
Information on current wildfires is available from CalFire and the Incident Information System website.
Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employers and workers who have questions or need assistance with workplace health and safety programs can call Cal/OSHA’s Consultation Services Branch at 800-963-9424.
Complaints about workplace safety and health hazards can be filed confidentially with Cal/OSHA district offices. Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734).