The battle over workplace regulation

Remember back when we used to go on long family road trips, driving for hours while the kids in the back seat repeatedly shout, "Are we there yet?" To them, the trip is interminable and the boredom unnecessary; they have no idea how you are going to get from here to there or which way the wheel will turn.

That sums up the frustration of a lot of employees and employers wondering where employment rules and practices are headed and what they will be like once we stop moving. Perhaps surprisingly, there's a lot of agitation about which way we're going. We have seen disagreements in the streets about the "safety versus independence" continuum; now we see them in the California courts.

California, like many other states, has established interim rules for the pandemic. As always, the rules are vehicles to promote public policy. A bit different today is that public policy isn't geared toward individual protection but, rather, toward communal good.

While most employers and employees are embracing that shift, many are not, as evidenced by a new lawsuit filed in San Francisco Superior Court by a variety of retail associations seeking an injunction against the California occupational safety and industrial relations agencies to invalidate the COVID-19 Emergency Temporary Standards (ETS), found in 8 C.C.R. §§ 3205, 3205.1, 3205.2, and 3205.3 (https://www.dir.ca.gov/dosh/coronavirus/ETS.html).

Emergency regulations skipped usual procedure