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Ag employers target state's new COVID-19 emergency rules

A coalition of farm and business groups has sued state workplace safety officials over month-old emergency safety rules it calls unnecessary in light of steps already taken to slow the spread of COVID-19.

The suit filed late last month in Los Angeles Superior Court alleges the California Occupational Safety and Health Standards Board overstepped its authority by imposing rules that Dave Puglia, head of Western Growers Association — one of six plaintiffs — called "unrealistic, unfounded and economically harmful."

Cal-OSHA's rules require a number of preventive steps to help protect workers during the pandemic, such as testing employees exposed to the novel coronavirus and notifying local health authorities if three or more workers come up positive.

The rules' physical distancing requirements are of particular concern to local ag. The coalition expressed specific concern about a rule that beds in employer-provided housing be spaced at least six feet apart in all directions.

"A reduction in already-scarce housing will directly impact farmworker communities and harm rural economies across the state that depend on agriculture," said a news release issued Thursday by the California Farm Bureau Federation.

Cal-OSHA declined to comment on pending litigation.

A spokesman for the United Farm Workers labor union said by email Monday it supports the new emergency workplace standards.

"These emergency standards give the government the best chance to keep farm workers and rural communities safe from the deadly spread of COVID-19, which is disproportionately devastating farm workers and other rural Californians," spokesman Marc Grossman wrote.

There have been several COVID-19 outbreaks in Central Valley agriculture, including one that sickened dozens of workers at a Wasco nut processing facility. That led the state Department of Industrial Relations to issue $77,500 in fines to the plant's owner and three staffing employment contractors it works with.

The lawsuit criticizes the state's case for instituting emergency measures in the first place.

"While no one doubts that the COVID-19 pandemic constitutes a public health emergency," the suit states, "the board failed to provide substantial evidence or a reasoned explanation as to why these 'emergency regulations' are necessary to avert immediate and serious workplace harm, why the board delayed, for months, before deciding that there was an urgent need to promulgate the (emergency rules) on five working days’ notice, or why the (set of rules) was even needed at all."

"The (set of rules) does not solve a crisis," it adds, "as much as it creates one."

The lawsuit takes aim at the new rules' definition of an "exposed workplace" as including an agricultural field or production floor used by employees during an infectious period. It says sending home all people who work in such an area "could have catastrophic consequences across every part of this critical infrastructure sector."

It further asserts ag employers responded quickly and decisively to the pandemic, developing "best practices based on actual experience."

The president of the Grower-Shipper Association of Central California, Christopher Valadez, said in the news release Cal-OSHA also could have done a better job drawing up the new rules.

“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,” he stated.

Cal-OSHA board members and senior staff are listed as the suit's defendants.

Besides Western Growers, the plaintiffs are the California Association of Winegrape Growers, California Business Roundtable, the California Farm Bureau Federation, the Grower-Shipper Association of Central California and the Ventura County Agricultural Association.

Follow John Cox on Twitter: @TheThirdGraf