New Lawsuits Challenge State COVID-19 Measures
New Lawsuits Challenge State COVID-19 Measures

A lawsuit has been filed against Cal/OSHA regarding its recently instituted regulations requiring employers to adopt numerous COVID-19 measures. In addition, a separate suit was filed against Governor Newsom for the outdoor dining ban that is part of recent COVID-19-related regional restrictions. 

Specifically, the National Federation of Independent Business (NFIB) teamed with the National Retail Federation and three NFIB small business owner members to sue the California Division of Safety and Health (Cal/OSHA), the California agency that recently instituted extensive regulations impacting employers. The suit claims that Cal/OSHA, in instituting these regulations, failed to provide public notice and hold public hearings required under California’s Administrative Procedure Act and that it exceeded its authority under the California Occupational Safety and Health Act. 

The suit also cited the expense the regulations will cause struggling small California businesses who are already struggling during the pandemic. The suit further claims that the regulations conflict with the Centers for Disease Control and Prevention (CDC) guidelines, as the regulations require a 14-day workplace exclusion even if an employee exposed to COVID-19 tests negative, while the CDC recommends a 7-day quarantine in the event of a negative test and no symptoms. The lengthier quarantine period is cited as particularly expensive and burdensome to small businesses, as it causes a need to find qualified replacements for the longer time frame.

In another lawsuit, the owner of the Pineapple Hill Saloon & Grill in Sherman Oaks challenged Governor Gavin Newsom in federal court, seeking to overturn the outdoor dining ban that affects Southern California and other state regions, claiming Governor Newson exceeded his authority in instituting the ban without supporting scientific evidence. The outdoor dining ban is part of the California regional restrictions that apply when intensive care unit capacity drops below 15%. When Southern California and other regions hit that benchmark, the outdoor ban and other restrictions went into effect, at a time when numerous restaurant owners had only recently incurred great expense to permit outdoor dining on their premises. This suit follows the recent suit by Mark Geragos and the California Restaurant Association that challenged an extension of Los Angeles County’s ban on outdoor dining beyond its scheduled end on December 16, 2020. The judge in that case agreed that before the ban can be extended, a risk-benefit analysis must be undertaken to justify the ban. However, the regional ban that remains in effect until at least December 28, 2020 has shut down outdoor dining in Los Angeles County along with most other counties in California.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

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