Lawsuit Filed Today Accuses Cal/OSHA of Illegal Overreach

Date: December 16, 2020

Plaintiffs claim state agency did not legally establish its latest COVID-19 workplace regulations, adding financial burden to small business employers

SACRAMENTO, Calif., Dec. 16, 2020—A lawsuit filed late this afternoon in San Francisco accuses California’s Division of Safety and Health of ignoring legal procedures in establishing its latest COVID-19 workplace rules, and it warns of dire financial consequences for the remaining businesses left in California if they are forced to comply.

“Since March, California employers have worked hard to ensure their workplaces are safe. Despite this fact, Cal/OSHA failed to follow the proper legal procedures that would benefit from the real-world experiences of business owners across the state, and, instead, rushed forward with this rule that imposes another significant financial burden on small businesses at a time when they can least afford it,” said Karen Harned, executive director of the NFIB Small Business Legal Center, a public interest law firm supporting NFIB, the nation’s largest small-business advocacy association.

NFIB is a co-plaintiff in the lawsuit, along with the National Retail Federation and three California small business owners, who are also NFIB members. NFIB argues that the emergency regulations are flawed because they require employees to be excluded from the workplace for 14 days, even if they receive a negative test result, which is in conflict with CDC guidelines that say, “quarantine can end after Day 7 if a diagnostic specimen tests negative and if no symptoms were reported during daily monitoring.”

Specifically, the lawsuit accuses Cal/OSHA of violating the state’s Administrative Procedure Act by not giving prior public notice and not holding public hearings on its new rule. Additionally, by attempting to regulate wages, the new rule exceeds the limits placed on Cal/OSHA by the California Occupational Safety and Health Act.

“These regulations will be expensive for all California businesses to implement, especially smaller businesses,” said John Kabateck, California state director for NFIB. “As pointed out in the lawsuit, the retail industry alone has already spent $8 billion to implement protocols to combat COVID-19, and retailers will have to spend millions more if the new Cal/OSHA rule is allowed to go forward. This has sadly become the standard operating procedure for California policymakers in recent years. When the Legislature is not heaping more new laws on the soon-to-be-broken backs of businesses, its entrenched bureaucracy can’t resist adding its own burdens. We are nothing if not pioneers as the nation’s trailblazers for destroying as many enterprises and jobs as possible.”

The 14-day exclusion rule is particularly costly and would make it almost impossible for business owners to find skilled replacements for that period.

The NFIB Small Business Legal Center has prepared a summary of the new Cal/OSHA rule, which took effect November 30.

Contact: Karen Harned, Executive Director, NFIB Small Business Legal Center, 202-631-4610, [email protected]; or John Kabateck, California State Director, 916-956-9027, [email protected]; or Tony Malandra, Senior Media Manager, 415-640-5156, [email protected]

Keep up with the latest on California small-business news at or by following NFIB on Twitter @NFIB_CA or on Facebook @NFIB.CA.

For more than 77 years, NFIB has been advocating on behalf of America’s small and independent business owners, both in Washington, D.C., and in all 50 state capitals. NFIB is a nonprofit, nonpartisan, and member-driven association. Since its founding in 1943, NFIB has been exclusively dedicated to small and independent businesses and remains so today. For more information, please visit

921 11th St. Ste. 400
Sacramento, CA 95814
Twitter: @NFIB_CA
Facebook: @NFIB.CA


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