As we reported here, Cal/OSHA’s revised COVID-19 Emergency Temporary Standards (“ETS”) took effect on January 14, 2022. The controversial emergency regulations, which have caused employers countless headaches, survived their first major challenge when the Court of Appeal, in Western Growers Association v. Occupational Safety and Health Standards Board affirmed the trial court’s order blocking a preliminary injunction.

A coalition of agricultural business organizations argued that Cal/OSHA undermined existing workplace safety laws and regulations and exceeded its statutory authority when it implemented the ETS. They filed for a preliminary injunction in early 2021. The trial court denied the petition, finding the Plaintiffs did not show a likelihood of success on the merits.

Last week, the Court of Appeal affirmed the trial court’s decision, agreeing that the regulations are a proper exercise of authority within Cal/OSHA’s “area of expertise,” and that they are a necessary immediate action because existing workplace safety regulations were insufficient to tackle the unprecedented risks of COVID-19 transmission.

Therefore, as burdensome as they may be, the ETS live to see another day.