By Craig W. Anderson
A lawsuit brought by agriculture organizations seeks to set aside emergency rules from the California Occupational Safety and Health Standards Board (Cal/OSHA) because the regulations do not “solve a crisis as much as it creates one,” according to the suit.
Plaintiffs in the suit include California Farm Bureau, California Association of Winegrape Growers, California Business Roundtable, Grower-Shipper Association of Central California, Ventura County Agricultural Association and Western Growers.
The suit was filed in Los Angeles County Superior Court and the lawsuit says the new regulations are “unprecedented and sweeping” and “place unprecedented financial and operational costs on all employers in this state.” It also “imposes unique threats to the agricultural industry.”
The mandate for continuous COVID testing of employees is unrealistic for employers in remote areas “with limited access to testing services,” noted the lawsuit.
CFBF President Jamie Johansson said the standards represent “only the latest manifestation of the California government’s regulatory overreach, with constantly new and changing regulator dictates imposed on our members businesses … that now seem to be handed down on a daily basis.”
Members of the CFBF-led ag coalition are confident their case is strong and they hope the suit may encourage Gov. Gavin Newsom and Cal/OSHA to “reconsider this hasty and ill-considered action,” Johansson said.
The rules became effective on Nov. 30, 2020, accompanied by AB 685 which covers the same COVID-19 issues, creating angst among the more than 250 farmers, processors, employers, attorneys and consultants at a ZOOM-based virtual webinar.
Conducted by Bryan Little, CEO of the Farm Employers Labor Service (FELS) and Seth Mehrten, FELS Group Legal Service Program and partner with the law firm Barsamian & Moody, the program has been receiving inquiries “every day,” Little said.
Compliance with Cal/OSHA’s Emergency Temporary Standard (ETS) is being pursued by Cal/OSHA with the “intent of really enforcing this set of regulations,” he said.
Workers come first
Their suit is intended to stress their ongoing desire to assure the health and safety of employees at farms, ranches and agricultural businesses, according to the agricultural organizations.
“We want to keep our workers healthy and when the pandemic hit, farmers and agriculture reacted immediately and kept employees healthy and the food chain moving,” said Paul Sanguinetti, SJFB board member. “We’re continually the government’s second thought and they’re behind the times. We’ve learned from the pandemic and we’ve implemented what needed to be done.”
Bureaucrats lack ag knowledge
Sanguinetti also commented that, “I think the bureaucrats writing these regulations don’t know what they’re doing. If they’re not creating regulations, they write more whether we need them or not.”
Some of the mandates presented by this new ETS include: employers must provide no cost testing during working hours for employees with “potential” COVID exposure; new regulations have cut room occupancy in half; housing set aside by employers to isolate workers testing positive may not be available thus increasing COVID spread “rather than alleviating the problem,” Little said.
The regulations were termed by the lawsuit as being “complex, prescriptive and unprecedented” and should have been “publicly vetted” via “formal notice-and-comment procedures.” The only version of the regulations was available for review only a week before being adopted on an emergency basis by Cal/OSHA’s board.
Small family farms hurt
“This is one more thing that hurts small family farms,” said SJFB President David Strecker. “Regulations such as this cause farmers, ranchers and businesses associated with agriculture to spend their time indoors, away from what we love to do.”
CFBF counts more than 20,000 small family farms among its membership.
Strecker added, “Family farms usually aren’t able to hire attorneys or someone to monitor compliance.”
“The health and safety regulators shifted into overdrive with this Emergency Temporary Standard,” Little said. “The regulatory foundation shifted under our feet with these standards which will be in effect until at least October 2021.”
He said the short time allowed for ag to review the regulations left farmers bereft of sufficient knowledge about the program, resulting in citations for violations beginning immediately after the ETS debut in November but “no penalties will be collected until after Feb. 1.”
Legislature not involved
The government is moving right along and leaving the agricultural community behind and, said SJFB Executive Director Bruce Blodgett, “It’s one step after another to use COVID to pass laws and not do it legislatively. Public input is needed but there was no time for it and therefore no comments to the Legislature as they’re not involved in this process.”
It’s frustrating attempting to move forward and being stymied by a state agency and governor that doesn’t communicate with those they’re supposed to help, Blodgett said, adding, “Newsom’s putting more and more liability on agriculture.”
The regulations also insist that employers provide free testing and available COVID benefits under federal, state and local laws and there is more, said Seth Mehrten. “Regulations are changing almost daily and currently developing an area of new law. Any court challenge will be unlikely to yield any relief in the near future.”
However, Mehrten said, “Likely this area of law will continue to evolve rapidly, so ag businesses need to keep up to date. I advise consulting an attorney to help with that.”
“There is a lot here that hasn’t been revealed yet by Cal/OSHA,” Mehrten said.
Ag already doing it
Jack Hamm, Lodi dairy farmer, said Cal/OSHA has required “us to do something we’re already doing.”
Hamm has instituted distancing protocols in his dairy facilities along with masking because his employees “feel comfortable with it and they’re able to do what’s necessary with communicating while at work.”
Locals not consulted
“I doubt anyone in the San Joaquin County ag community was consulted by Cal/OSHA when these regulations were being written; our officers weren’t,” said SJFB Second Vice President Jake Samuel.
And that causes “more protocol and regulations that will make little difference because ag has already been doing what’s needed without asking for duplicating regulations,” Samuel said.
What it comes down to is that “everybody wants a safe environment and we – agriculture – have been instituting our own, logical, workable and successful procedures relating to the COVID pandemic for almost a year,” he said.
A nine-month “emergence”
Johansson and other employers’ said the Cal/OSHA board waited nine months after the pandemic arrived to enact the “emergency rules” without demonstrating there was a need for such draconian measures that will shrink an already dangerously narrow profit margin and reduce the ability of farmers and ranchers to maintain a profit level to ensure continued success.
“This emergency should have been addressed long ago,” said SJFB First Vice President Ken Vogel. “Agriculture’s moved forward and already instituted best practices for COVID regarding worker’s safety. But this Cal/OSHA regulatory splurge defies common sense.”
“We always want to help our workers, to keep them healthy, because without them we couldn’t make it,” he said. “We’d be better off if the bureaucrats would apply practical ideas and logic to do something that works. Ag took the lead in 2020 and the state government has yet to catch up.”
“These new regulations require a large increase in paperwork, time and recording,” Strecker said. “There are forces that are forcing small farms out of business and some freedoms are no longer there for farmers.”
More information is available on the FELS website at CFBF website.
The California Farm Bureau Federation contributed to this article