Legal Protections for Employees During COVID-19

Written by: Christopher B. Dolan

Today’s question comes from Darlene in the Excelsior who asks: “I have been really scared during Covid about losing my job. For the last 2 years I have worked in a relatively small company, with 20 employees, and I have to have a surgery for a total knee replacement soon. I have delayed because of Covid but I can’t put it off much longer. My doctor told me that as soon as the number of Covid cases goes down I should be scheduled for surgery. My company has a lot of workers younger than I am, and I am afraid they may replace me with a younger person who doesn’t have health issues. I also have asthma and I have been very careful to socially distance myself. I am deemed an, “essential worker,” and don’t have the luxury of working from home. I don’t trust my company (in case you hadn’t picked up on that) and I know one of my co-workers had Covid and they didn’t tell us. I found out through his teammate. What are my rights to take time off for my knee surgery and what obligation does my employer have to tell me when someone gets sick with Covid?”

Dear Darlene: These are some very stressful times and with so many people unemployed, I can see why you would be concerned about your job and your right to seek health care, as well as want to know if you have been exposed to Covid. Starting with your need to take time for your knee replacement, I can say that the delay due to Covid has worked in your favor.  

Under the California Family Rights Act (CFRA), California’s version of the Family Medical Leave Act (FMLA), you would not have qualified for a job-protected medical leave for your knee surgery in 2020, but you will qualify in 2021. Currently, under CFRA if you have worked for an employer for 1250 hours or more during the last 12 months, you may take up to 12 weeks of unpaid leave (all at one time, or intermittently) for a serious health condition of yourself, your parents, children, spouse or registered domestic partner. CFRA leave doesn’t have to be taken all at once. An employee may take intermittent leave, if needed. Additionally, any parent may also take CFRA leave to bond with a newborn child. Prior to 2021, only employers with 50 or more employees within a 75 mile radius had to provide this leave. Starting January 2021, the law has changed (Fair Employment and Housing Code Section 12945.2) to require employers with 5 or more employees to grant CFRA (with certain limited exceptions) to a worker for themselves or a child, parent, grandparent, grandchild, sibling, spouse or domestic partner. Therefore, the law now has a much broader reach both in the number of employers who will be obligated to grant CFRA and the scope of the relationship to the employee, which has now been expanded to include grandparents, grandchildren and siblings. 

When possible, an employee must request CFRA leave within a reasonable period of time in advance of the anticipated leave. An employee, “shall,” make a reasonable effort to schedule the treatment or supervision to avoid disruption to the operations of the employer. In case of an emergency, no notice is required before taking leave, but a prompt request must be made to the employer as soon as possible.  An employer may require that an employee’s request for leave be supported by a certification issued by the health care provider of the individual requiring care. When CFRA leave is granted, the employer must continue to pay the employer’s share of their medical insurance, the employee is still obligated to pay the employees portion, and the employer must, upon granting of the leave, provide an employee with a guarantee of employment in the same or a comparable position upon return. An employer can have a policy that requires the employee to obtain certification from the employee’s health care provider that the employee is able to resume work, so long as that policy is applied uniformly.

As to the second issue raised in your question, regarding an employer’s obligation to notify you if a co-worker has been diagnosed with COVID, the Labor Code was amended to add Section 6409.6, requiring an employer, within one business day of receiving notice of potential exposure, to provide written notice to all employee and subcontractors who were on the same premises or worksite as an infected person that they may have been exposed. The employer must also provide all exposed employees with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave (CFRA), supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee. The employer must also notify the employees of the disinfection and safety plan the employer plans to implement and complete per the federal guidelines of the Center for Disease Control and Prevention. The law also prevents an employer from retaliating against an employee for disclosing a positive Covid test or an order to quarantine or isolate. This law expires on January 1, 2023.

If you feel that your rights have been violated, make sure to document it in a verifiable manner (email, memo, text, etc.) and contact a good trial lawyer with expertise in employment cases for a consultation.  Our office has an employment law department that focuses on employee rights. 

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Workers’ Compensation Could Cover COVID-19 exposure

This week’s question comes from Brenna in San Leandro who asks: My employer still isn’t taking COVID-19 seriously! We have the most basic safety measures at our office, and people take their masks off all the time, regardless of where they are in the shared office space or other offices. My coworkers are posting pictures all over social media of themselves out at bars and in large groups, without wearing any masks; they aren’t social distancing. I think people are faking their temperatures when they come in to work, and then they are telling people they, “just have a stomach bug.” I’m terrified of getting sick.  My family and I are taking every precaution we can. My kids are home schooling, we wear masks, and have stayed away from large crowds, even though it meant missing our traditional Thanksgiving with all my brothers and sister’s families. This is not to mention all the summertime activities we did not engage in this year. I’m limiting my exposure opportunities and I’m washing my hands regularly, so if I get sick I’m positive it’ll have come from my office. Would my employer be held responsible? Am I covered by workers compensation?

Dear Brenna: I’m so sorry to hear that despite all the evidence available and the incredible loss of life our country has suffered you are working in an environment where your coworkers are not taking the pandemic seriously. Recently there was a law signed by Governor Newsom that codified the executive order he issued back in May. It is called Senate Bill 1159 and it codifies the presumption that an employee’s illness related to the coronavirus is an occupational injury, and if particular criteria are satisfied, then the injured worker would be entitled to workers compensation benefits.  

There are specific categories of workers that this rule protects, which includes first responders and health care workers, but the coverage would also be triggered if there is an, “outbreak,” at an office. An, “outbreak,” is found if, within fourteen days, any of the following three scenarios are met:

1) if an employer has 100 employees or less, and four employees test positive,

2) if an employer has 100 employees or more, and four percent of the employees test positive, or

3) a place of employment is shut down by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection for COVID-19.

This law should encourage employers to comply with, and enforce the local health orders and guidelines appropriate to their office.  Any efforts the employer makes to protect its employees will be evidence the employer can introduce to counter the presumption that the illness an employee claims came from the workplace.  Each of their efforts will be a tool to use against an employees claim. The less the employer has done to protect its workers, the less the employer will have to argue the infection did not come from the workplace. If the standards are met, and the presumption has been triggered, the employer will bear the burden to prove the injury did not come from the office.

Workers, however, must make efforts at home to stay safe. The employee’s efforts will provide them with evidence that supports the presumption that the infection came from the office. So workers, such as yourself, should continue to make sure you are following the suggested safety measures, including wearing a mask, washing your hands, avoiding crowds and social distancing when you do have to go out. Taking these steps will be your evidence to contradict efforts made by the employer to claim the source of your infection is outside of the office.

If an employee becomes sick, they can request a workers compensation claim form from their workplace. Employers are required to give their employees the form. Here is a link with information on filing a claim form here.

However, feeling sick isn’t enough to qualify for these benefits. For this coverage to apply workers need to have their diagnosis confirmed by an approved Polymerase Chain Reaction (PCR) test. A PCR test confirms a current infection as opposed to an antibody test which shows the worker suffered a previous infection.  The test itself is looking for the presence of the viral RNA. If your doctor encourages you to self-quarantine and treat at home, keep in mind the absence of a test-based diagnosis may preclude your opportunity to make a claim for workers compensation benefits. If you believe your infection came from work and you would like the option of making a claim for these benefits, make sure you get a test approved by the United States Food and Drug Administration. Workers should keep copies of all their medical records to use in the claim process. Even if a worker’s illness does not meet the criteria to establish this presumption, it may be deemed related to their work if the worker can provide enough evidence of it.  

Despite having a potential compensation claim, instead I hope you stay healthy.

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Travel Refunds During COVID-19

Written By: Christopher B. Dolan and Aimee Kirby

This week’s question comes from Sylvia who asks: My family and I had some questions about refunds regarding our airline travel due to COVID-19 over the holidays. Every year my family travels to the east coast from the west coast to see my parents. Because the price tends to increase as it gets closer to the holidays, we bought tickets over a year in advance. We also do the same thing with summer vacation for the kids. Our June vacation with my children was reasonably easy to cancel. Now they are telling me I can’t get my money back, but I can re-book upto a year from the ticket without any service charges. This seems unfair since COVID-19 is so unpredictable. Instead of them holding our money back with conditions and hoping we can travel next year, do you know any way to force them to return my money?

Dear Sylvia: COVID-19 has changed the entire way the world and our community interact. At the beginning of the pandemic, many airlines were issuing full refunds because little was known about the virus or how someone could safely fly during these times. There is a concept in the law called “Force Majeure” when dealing with contracts. Essentially, Force Majeure means that one person cannot fulfill their obligations under the agreement because of unforeseeable circumstances. When the pandemic hit, many airlines realized that they had to rework how they did business, and those that traveled with the airlines would not be able to do so until they were able to understand their own health needs and status of infection. The concept of Force Majeure was used, often without knowing its name, by both the airlines and the travelers to cancel or reschedule thousands of flights.

Now that we know a little more about COVID-19, some people have decided that with the changes the airlines are making, they would like to travel. This change in the attitudes of some travelers, and the changes made by the airlines, have made seeking a refund increasingly difficult. Because different policies exist for various airlines, and because the wait times to talk to a representative are relatively high, many have contacted the Department of Transportation to resolve their ticket refund status.

At the beginning of the pandemic, the U.S. Department of Transportation obligated airlines to immediately provide a prompt refund to travelers with flights to, within, or from the United States if their flights were delayed or re-routed significantly to the virus. However, even at the beginning of the pandemic, many airlines were not issuing refunds and instead they were trying to rectify flight cancellations by re-routing passengers, issuing travel vouchers, or changing flight dates. According to U.S. Department of Transportation webpage, no further directives have been issued regarding cancellations due to COVID-19.

The first place for you to start is the airline with which you booked your flight – begin by researching and understanding their change and cancellation policy. Nearly every airline has made some modifications to their change and cancellation policy. Most airlines are not charging fees for cancellation or changing flights, and also refunding and extending miles if your flight was booked with miles. However, nearly all the airlines are not allowing a cash refund and instead offering a voucher that must be used in a certain amount of time from the date of cancellation. This is true, even for the airlines with no fee, and allowed easy cancellations and refunds before the pandemic. Some airlines are increasing the amount of the voucher and/or giving more miles or points to travel with to those that have had their flights changed on them, This is the airlines form of recognizing how difficult this decision is to make.

Sadly, you cannot sue in small claims to get your cash back like a simple auto accident. Depending on your purchase’s terms and conditions, where the ticket was purchased, and the ever-changing COVID-19 landscape, different laws apply. Depending on how you paid for the flight, the credit card company you used may or may not be willing to refund you the sums you are out given their policy regarding the COVID crisis. After researching your airline cancellation policy, I would contact your credit card company if the flight was not purchased on points or miles. It’s possible that your credit card company will be more flexible than the airlines in providing some refund.

If your situation involves a family member that has tested positive for the virus, and this affects your future travel (as in an elderly relative that will no longer be able to be seen in the near future), I would strongly urge you to gather whatever documents you have to support this fact and ask to speak to a manager at the airline(s) in question. They may look at this situation as different from the many other travelers who have had to or chosen to cancel plans to see their loved ones. 

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COVID-19 and Your Employment Rights under FEHA and FFCRA

Written By: Christopher B. Dolan and Mari Bandoma Callado

 

This week’s question comes from Elena in Dolores Heights, San Francisco who asks:

My child’s daycare had to close for a month due to COVID-19 exposure. I took time off from work to take care of my four-year-old. When I returned to work, my co-workers began treating me differently. They know about what happened at my child’s daycare. When I walk in a room, I see them whispering to each other and/or they leave the room altogether, as if to avoid me. One co-worker specifically asked me if I had the, “Kung-Flu.” I am Asian American and I was offended by this comment. Another co-worker said that it wasn’t fair that I got to take a, “month-long vacation.” I verbally complained to my manager about the racist remark and being treated differently by my co-workers and she assured me that she would take care of it.  

A couple of weeks later, my manager told me that I was being transferred to the graveyard shift. My manager knows that I cannot work that shift because I have a young child. I told her that this was not fair and that I thought I was being retaliated against for taking time off because of a COVID-19 closure of my child’s daycare and/or complaining about my co-workers’ racist remarks. She denied it and said that it was a business need, and that my options are switching to the graveyard shift or quitting. I believe she is singling me out. I have been working for this company for two years and have always had a great relationship with my manager prior to my complaints.  I don’t know what to do.  What are my rights? 

Dear Elena: I’m so sorry that this is happening to you in the midst of what already is such a difficult year. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on race, national origin and disability (among others) in the workplace. The FEHA applies to public and private employers, labor organizations and employment agencies with five or more employees. Employees also have the right to be protected from retaliation for making a complaint or opposing a practice prohibited by the FEHA. Retaliation includes any adverse employment action taken in response to an employee’s complaint, including termination, demotion, pay reduction, job transfer and negative performance evaluation. In other words, your employer cannot punish you or treat you differently if you report race, national-origin or disability-based discrimination or harassment in the workplace. Employers who violate the FEHA’s anti-discrimination, harassment and retaliation provisions may be liable for damages including back pay, lost benefits, emotional distress, punitive damages, attorneys fees and costs, etc.

Your complaint to your manager regarding the, “Kung-Flu,” comment made by your co-worker and being treated differently by co-workers due to taking leave of absence are considered a protected activity under the FEHA as it is likely based on your race or national origin or as a perceived or associational disability (COVID-19 can be a disability, depending on how severe). Your manager forcing you to transfer to the graveyard shift would be considered an adverse employment action under the FEHA. The law requires proving a connection between these two things. The fact that this happened just two weeks after your complaint is some evidence that it is related to the protected activity.

Another source of protection may come from the Family First Coronavirus Response Act (FFCRA). The FFCRA, which expanded the Family Medical Leave Act (FMLA), covers leave and loss of income when an employee needs to care for children because of school or childcare closure and other leave related to COVID-19.  Employers with 500 or fewer employees are required to provide job-protected leave for employees who are unable to work (or telework) due to a need to care for the employee’s child (under the age of 18) if the child’s elementary or secondary school or place of childcare has been closed, or the childcare provider is unavailable due to the COVID-19 emergency. This applies to employees who have been employed by the employer for at least 30 calendar days. This means that employers are prohibited from discharging, disciplining, or otherwise retaliating against any employee who takes leave under the FFCRA. Employers who violate the FFCRA’s expanded FMLA provision may be liable for damages including back pay, lost benefits, emotional distress, attorneys fees and costs, etc.

Assuming your employment has 500 or fewer employees, your leave of absence to take care of your minor child during the daycare closure is protected by the FFCRA and retaliating against you with a transfer to a graveyard shift is in violation of the FFCRA. We recommend that you contact an employment attorney to best protect your rights and to ensure that you do not miss any filing deadlines.

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What is Ascertainment? Here is what you need to know

Written By: Allison Stone and Christopher B. Dolan

What is ascertainment?

President-elect Joe Biden’s transition to power relied on a widely unknown acknowledgement called, “ascertainment.” Under the Presidential Transition Act of 1963 (PTA), the transition to the next presidential administration formally begins once the Administrator of the General Services Administration (GSA) ascertains the, “apparent successful candidate,” for president. But what does this mean?

Generally the GSA is the federal agency that keeps our government running, and the GSA Administrator determines when the transition to a new administration begins.  To do so, pursuant to the PTA, the Administrator ascertains the apparent successful candidate following a presidential election.

What has proved to be problematic is that there is no definition in the PTA as to how an, “apparent successful candidate,” is ascertained by the Administrator. The PTA has been amended over the years, yet the ascertainment requirement has remained vague. Thus, this critical decision is at the GSA’s discretion and based on the Administrator’s reasonable judgment.

This begs the questions: What is reasonable? What should be considered? Historically, the factors that have been relied upon include news media election calls, vote counts reported by states, and the losing candidate’s concession. For the transition to begin, the Administrator signs a letter of ascertainment, which is the current administration’s acknowledgment that a candidate won the election. Only the Administrator can ascertain the winner, thus he controls when the formal transition begins.

Currently, the Administrator is Emily Murphy. She was nominated by President Trump and appointed in 2017. It was therefore, her duty to ascertain who won the 2020 election, and she held the power to decide when to initiate a transition of power.

Why does ascertainment matter?

A letter of ascertainment is the necessary step to make considerable federal funding, resources and services provided by the PTA available to the President-elect and his team, and it allows them into the federal agencies they will take over. This gives them time to organize before Inauguration Day.

Ascertainment is a routine step based on the unofficial election results and the Administrator’s decision was made once a few credible news outlets declared a winner or after a concession. Ascertainment has often been made within a few hours to a couple of days. A prompt transition is necessary so the President-elect can hit the ground running.

Although Joe Biden was widely accepted as the apparent winner on November 7, 2020, and although news outlets and states had called the election for Joe Biden, Emily Murphy did not authorize the transition for 16 days, until November 23rd.  As a result, there was a delay in the dispersal of crucial resources and materials provided by the PTA to ensure a smooth transition. Until November 23rd Joe Biden’s team could not access $9.9 million to create a new administration or to expedite background checks, and they could not go into federal agencies, or obtain intelligence briefings.

What are the consequences of delaying ascertainment? 

This delayed decision has put lives at risk, particularly during this COVID-19 pandemic. Transition experts opine that the 16-day delay will leave the new administration’s coronavirus response team less prepared, may hinder coordination on future economic relief, and may threaten our national security. There was a delay with ascertainment following the contested 2000 election and experts cite 9/11 as a tragic result of the delay in getting the new administration’s national security team situated. Similarly, here, the 16-day delay puts the safety and well-being of Americans in further danger and this time cannot be regained.   

How do we prevent a delay in ascertainment in the future?

Emily Murphy did not authorize the transition process for 16 days, which was well-after all major media outlets and states reported an apparent winner. Notably, in her November 23rd letter, Emily Murphy does not refer to Joe Biden as the, “President-elect,” and never stated that she ascertained that Joe Biden is the “apparent successful candidate.” This is the basic language in the PTA. Instead, Emily Murphy stated, “I have determined that you may access the post-election resources and services described in [the PTA].” Her letter also states, “Please know that I came to this decision independently […] I was never directly or indirectly pressured by any Executive Branch official […] with regard to the substance or timing of my decision.”

 

Also, on November 23rd President Trump tweeted that, “… I am recommending that Emily and her team do what needs to be done with regard to initial protocols…” Although ascertainment is supposed to be an apolitical, independent decision by the GSA, the President’s tweet in conjunction with Emily Murphy’s letter has raised red flags and suggests that the delay was politically driven and influenced by the President.

 

 

To prevent harmful delays in the future, amendments to the PTA should be considered. Some changes should include a definition or clear criteria for determining, “the apparent successful candidate.” This will prevent Americans from relying on the unfettered discretion of one person in such a critical process in our democracy. Further, imposing penalties when an Administrator abuses the duty of ascertainment should also be considered.  Finally, change must be made to ensure that ascertainment is, in fact, apolitical and independent. The 2020 election has taught us that changes to the PTA would be highly beneficial to ensure a smooth and prompt transition of power for the safety of our country.    

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An Interview with SMCTLA’s Treasurer: Kimberly Levy

Today we had the opportunity to catch up with San Mateo County Trial Lawyer Association’s Treasurer and our senior associate attorney Kim Levy from our San Francisco office. Super Lawyers recognized Kim as a Rising Star among Northern California attorneys.

As a senior associate attorney, Kim Levy has experience litigating all types of injury cases.

Kim started her legal career at the Northern California Innocence Project, where she assisted in investigating and exonerating factually innocent clients that had been convicted of felonies or assisted in confirming those convictions. Kim also worked in a civil litigation firm assisting with business and contract litigation as well as elder abuse cases.

In 2011, Kim began practicing personal injury and wrongful death law. From drafting complaints, discovery requests, demands and briefs, to writing and arguing motions, negotiating settlements, and assisting with jury trials, Kim possesses extensive litigation experience.  She is a compassionate attorney, dedicated to fighting for her clients.

Kimberly Levy – Rising Stars Lists (x5)

Interview

Hello Kim, thank you for taking the time to speak to us. How does it feel to be recognized as a Super Lawyer Rising Star in 2020?

Thank you!  I am honored to be recognized by my peers as a Super Lawyer Rising Star this year. With so many wonderful and accomplished lawyers in our community, I am humbled to be acknowledged by my colleagues as providing meaningful contributions to the field.

Who was most influential in setting you on a path to becoming a lawyer? 

There wasn’t really one person that influenced my decision to become a lawyer. My first adult experiences out in the world opened my eyes to the vast disparity, amongst our diverse population, in access to resources. I decided then that I wanted to pursue a profession where I could help close that gap.

What tips would you share with others who are thinking about going to law school?

Law school isn’t easy, but neither is the practice of law.  Don’t expect to skate through.

What tips would you share with new attorneys who are just starting in the P.I. plaintiff side?

  1. Practice with integrity.
  2. Build a community for yourself by becoming involved with professional organizations; reaching out to colleagues for help and support; and finding a mentor. 

With court shutdowns due to COVID-19, has this affected the way you prepare cases for trial? 

While COVID-19 has really changed our ability to get to trial, it shouldn’t change the way we work up cases. The best way to make sure you get great results for your clients is to prepare for trial from day one.

Many industries are changing the way they work and seem to be doing more work away from the office. Do you think the legal industry will change in a similar manner? 

The legal industry has already changed to accommodate remote work with Zoom depositions and court appearances.  Legal writing also lends itself to the remote work environment.  However, in some regards, there really is no substitute for in-person interaction.  I’m a big believer in the power of collaboration and teamwork.  It is much easier to connect with others when we can be physically present, rather than virtually present.  I’m optimistic that we will get back into the office and the Courts. 

 

Thank you for your time Kim and congratulations on being recognized again as a Super Lawyer Rising Star! 

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