Flower World, Inc. v. Sacks

43 F.4th 1224

FLOWER WORLD, INC., Plaintiff-Appellant,

v.Joel SACKS, Director of the Washington Department of Labor and Industries; Craig Blackwood, Acting Assistant Director of the Washington Department of Labor and Industries, in their personal capacities; Doe, through X, in their official capacities as employees of the Washington Department of Labor and Industries, Defendants-Appellees.

No. 21-35641

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2022 Seattle, Washington

Filed August 11, 2022

Richard M. Stephens (argued), Stephens & Klinge LLP, Bellevue, Washington, for Plaintiff-Appellant.

Anastasia R. Sandstrom (argued), Senior Counsel; Sarah Kortokrax, Assistant Attorney General; Robert W. Ferguson, Attorney General; Attorney General's Office, Seattle, Washington; for Defendants-Appellees.

Before: Sandra S. Ikuta and Eric D. Miller, Circuit Judges, and Dean D. Pregerson,^* District Judge.

IKUTA, Circuit Judge:

This cases raises the question whether certain mandates issued by the Governor of Washington to address the public health crisis caused by the spread of coronavirus (COVID-19) are preempted by the Occupational Safety and Health Act (OSH Act). We hold that the mandates at issue are not preempted by the OSH Act.

I

The OSH Act requires that every employer provide a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (the "general duty" clause) and "comply with occupational safety and health standards promulgated" by the Occupational Safety and Health Administration (OSHA). 29 U.S.C. § 654(a). An "occupational safety and health standard" is defined as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8). "The general duty clause applies when there are no specific standards." Donovan v. Royal Logging Co. , 645 F.2d 822, 829 (9th Cir. 1981).

"[T]he OSH Act pre-empts all state ‘occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated.’ " Gade v. Nat'l Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 105, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality) (quoting 29 U.S.C. § 667(b) ).¹ A state which "desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated" must submit a state plan for approval. 29 U.S.C. § 667(b). Because "Congress intended to subject employers and employees to only one set of regulations, be it federal or state," Gade held that "the only way a State may regulate an OSHA-regulated occupational safety and health issue is pursuant to an approved state plan that displaces the federal standards." 505 U.S. at 99, 112 S.Ct. 2374. If the state does not have an approved plan, the federal standards concerning an issue preempt state standards concerning that same issue. Id.

Washington State adopted a workplace safety plan in 1973, see Washington Industrial Safety and Health Act (WISHA), Wash. Rev. Code § 49.17, which was subsequently approved by OSHA, see 29 C.F.R. § 1952.4. Like OSHA, "two distinct duties arise from" WISHA: a " ‘general duty’ to maintain a workplace free from recognized hazards," and "a ‘specific duty’ for employers to comply with WISHA regulations." Afoa v. Port of Seattle , 176 Wash. 2d 460, 471, 296 P.3d 800 (2013) (citing Wash. Rev. Code § 49.17.060 ); see also Wash. Admin. Code § 296.307-045(1) (WISHA's general duty clause). WISHA is administered by Washington's Department of Labor & Industries’ Division of Occupational Safety and Health (L&I).

II

Beginning in early 2020, the COVID pandemic posed unprecedented challenges for the federal and state governments to protect public health and safety. In February 2020, in response to the COVID challenge, the Governor of Washington declared a state of emergency and issued multiple proclamations addressing the public health and safety issues raised by the pandemic. In May 2020, the Governor issued Proclamation 20-57, "Concerning the Health of Agricultural Workers," and an addendum, "Agricultural COVID-19 Requirements" (collectively, the "Proclamation"). The Proclamation acknowledged the hazards posed by "the worldwide spread of COVID-19" and prohibited "any agricultural employer from continuing to operate beyond June 3, 2020, unless the employer complies with all provisions of the Agriculture COVID-19 Requirements – Provisions for All Worksites and Work-Related Functions." The Agricultural COVID-19 Requirements, which were applicable to all "orchards, fields, dairies," all operations listed as agricultural in WISHA regulations, "all fruit-and vegetable-packing warehouses," and "employer-or operator-provided transportation and housing," included the following provisions:

(c) PPE. Employers, operators, and providers must supply, at no cost to employees, all PPE mandated by these requirements, including gloves, goggles, face shields, face masks, and face coverings. PPE must be clean and available each workday.

Face coverings must be worn by all employees in accordance with the governor's Proclamation 20-25.6, subsequent iterations of the proclamation, and the related interpretive guidance and exemptions set forth by L&I ...

(d) Physical Distancing. Employers, providers, and housing operators must ensure physical distancing of six feet or more during all interactions within the scope of employment.

When strict physical distancing is not feasible for a specific task, other prevention measures, such as more protective PPE, barriers, and negative pressure ventilation, are required....

(j) At the beginning of each day, employers must conduct a temperature check and review the symptom checklist with employees concerning themselves and their households. All thermometers must be properly sanitized between each use or each day. Any worker with a temperature of 100.4°F or higher is considered to have a fever.

Employers are not required to maintain logs of the check-ins described by this subsection.²

Flower World, Inc. is a horticultural business in Washington that grows and sells plants to the general public. It employs approximately 100 workers. On July 28, 2020, L&I issued a citation to Flower World which stated:

The employer did not ensure to furnish to each employee a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to employees.

In this instance, the employer did not ensure that the addendum to the Governor's Proclamation 20-57 (5/28/20) was met. The addendum discusses the requirements concerning the Health of Agricultural Workers.

The following instances were not met:

-Social distancing of six (6) feet at all times by all employees.

-Masks/Face coverings were not worn at all times by all employees.

-Temperature checks at the beginning of each work day are not being conducted.

Not following directed guidance for work potentially exposes employees to the Coronavirus which has been found to have the potential for death.

NOTE: Employers must comply with all conditions for operation required by emergency proclamation issued under RCW 43.06.220, including Safe Start phased reopening requirements for all business and any industry specific requirements.

This violation was corrected during the inspection. Assessed penalty: $4,200.00.

Along with this citation, L&I issued a citation invoice. It stated that the penalty was for a serious violation of Wash. Admin. Code § 296-307-045(1) (WISHA's general duty clause), in the amount of $4,200.00. It also stated that payment was due within "15 working days from receipt of this citation."

In response to this citation, Flower World filed an appeal with the review board for WISHA appeals. See Wash. Admin. Code § 263-12-059.³ Flower World then filed suit in federal district court against Joel Sacks and Craig Blackwood, two L&I officials in charge of enforcement, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 on the ground that the state standards set forth in the Proclamation for which Flower World was cited were preempted by OSH Act.

The district court granted the L & I officials’ motion to dismiss Flower World's amended complaint for failure to state a claim, and denied Flower World's motion for reconsideration. Flower World timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

III

The L&I officials first argue that we lack jurisdiction over Flower World's challenge to the Proclamation because it is not ripe. We review this issue de novo. See Wolfson v. Brammer , 616 F.3d 1045, 1053 (9th Cir. 2010). An issue is constitutionally ripe only if it is "definite and concrete, not hypothetical or abstract." Thomas v. Anchorage Equal Rts. Comm'n , 220 F.3d 1134, 1139 (9th Cir. 2000) (citation omitted). Where a plaintiff brings a pre-enforcement challenge, the ripeness inquiry turns on "whether the plaintiffs face a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement, or whether the alleged injury is too imaginary or speculative to support jurisdiction." Id. (cleaned up).

The L&I officials’ ripeness challenge turns on their argument that L&I lacks authority to enforce the Proclamation because it is not a WISHA regulation or standard. According to the L&I officials, the Proclamation can be enforced only by law enforcement officials as a criminal offense. See Wash. Rev. Code § 43.06.220(5) ("Any person willfully violating any provision of an order issued by the governor under this section is guilty of a gross misdemeanor."). The citation issued to Flower World, according to the L&I officials, enforced WISHA's general duty clause, and the citation's...