Investigators Looking if Warning Signs Were Missed in VTA Yard Shooting Case

 

 

Chris Dolan was called to act as a legal employment expert today on NBC news regarding the horrible workplace shooting at the VTA yard shooting that took place at San Jose Valley Transportation rail yard where a gunman opened fire and killed long time employees. When questioned about workplace safety, Mr. Dolan said that you have to “balance the rights of everyone…an employer has responsibilities to maintain a safe workplace. That includes that the workplace is free of violence.”

Our condolences go out to the families and friends of the victims identified by Santa Clara County Medical Exaniner-Coroner as: Paul Delacruz Megia, 42; Taptejdeep Singh, 36; Adrian Balleza, 29; Jose Dejesus Hernandez, 35; Timothy Michael Romo, 49; Michael Joseph Rudometkin, 40; Abdolvahab Alaghmandan, 63; Lars Kepler Lane, 63; and Alex Ward Fritch, 49.

Further information about this is on the link below.

CLICK HERE

 

 

 

 

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Recognizing Mental Health Awareness Month

Written by: Corinne Orquiola, associate attorney & Diversity, Equity & Inclusion Committee Member

 

Dolan Law Firm takes a moment to recognize #MentalHealthAwareness Month. This past year has presented many challenges that tested our strength and resiliency. Throughout the pandemic, those who have never experienced mental health challenges have found themselves in crisis for the first time. More than ever, we need to combat the stigma surrounding mental health concerns. Dolan Law Firm wants to assure those who are struggling that you are not alone.

More than 51 million adults in the United States face the reality of managing a mental illness everyday. Fewer than half of those adults who experience mental illness get the help they need facing common barriers to treatment including the cost of mental health care and insurance, prejudice and discrimination and structural barriers like transportation. The stigma and discrimination still surrounding mental illness causes so many to suffer. 

Dolan Law Firm recognizes and supports all who struggle and this month is highlighting #Tools2Thrive- what individuals can do throughout their daily lives to prioritize mental health, build resiliency, and continue to cope with the obstacles of COVID-19.  Mental health is essential to everyone’s overall health and well-being, and mental illnesses are common and treatable. 

How do I seek help for mental health?

One way to check in with yourself is to take a mental health screen at MHAscreening.org. It’s a quick, free, and private way for someone to assess their mental health and recognize signs of mental health problems. Mental health conditions such as depression or anxiety are treatable and recovery is possible. Dolan Law Firm encourages you to take the time to take care of your mental health and to reach out to others and check in on them. End the silence around mental illness. 

For more information, visit:

In California, people are protected against discrimination and harassment on the basis of actual or perceived disability – whether it is physical or mental. The disability discrimination attorneys at the Dolan Law Firm have represented numerous disabled people in achieving access and/or compensation when they have been treated unlawfully. 

If you would like to learn more about your right to mental health accommodations at work, CLICK HERE.

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Seeking Mental Health Accommodations Post-Pandemic

Written by: Vanessa Deniston and Christopher Dolan

Lenora from California asks: Before COVID hit, I felt extremely stressed out at work and pushed to my limits emotionally, to the extent that I believed I might have an anxiety disorder. I regularly experienced panic attacks, feelings of dread and trouble concentrating, but never spoke to a medical professional about it. Unfortunately, working from home during the pandemic presented its own challenges from having anxiety around the virus itself to juggling a high-pressure job while caring for two young children attending school on Zoom. My symptoms seem to have worsened. I worry about how I will readjust once I am asked to physically return to the office and how my anxiety will affect my performance. Do I have any options that might ease my return-to-work? 

Lenora, thank you for writing in about your sensitive issue. The COVID-19 pandemic can certainly be described as a global traumatic event, that has created unique stresses on many, including the exacerbation of preexisting mental health conditions. This is particularly acute with working mothers such as yourself who struggle with their mental health. 

It is important to first understand that the general stress and anxiety we all feel from time to time regarding work, family life and yes, even the pandemic, does not constitute a disability under California law. Anxiety disorders, depression and related mental health conditions, however, can constitute disabilities under the law. If your employer employs five or more persons and if you are found to be qualified person with a disability under the Fair Employment and Housing Act (Cal. Gov. Code § 12900) you are entitled to reasonable workplace accommodations to help you perform you job. To be a “qualified person with a disability” you must meet the skill, experience, education and job-related requirements and be able to perform the essential functions of your job with or without a reasonable accommodation.

If you are found to have a mental health condition that effects your ability to perform your essential job functions, it is important to place your employer on notice as soon as possible if you wish to explore workplace accommodation options. Any notice and request for a workplace accommodation should in writing, when possible.

Once an employer receives the notice, the California Fair Employment and Housing Act requires  the employer to engage in an interactive process with the employee to explore reasonable accommodations that would assist the employee in performing the essential functions of their job. The key word there is reasonable. What is considered reasonable? After the year we’ve just had, the answer to that question is not as clear as it once was.  

The most evident shift is the work-from-home arrangement. Statewide regulations surrounding the COVID-19 pandemic, have essentially forced the hand of employers to experiment with work-from-home arrangements. Some businesses floundered, some thrived and others simply course corrected. Every job environment is unique, and every employer has had to adapt to the pandemic in its own unique way. While working-from-home accommodations may have been an unfeasible in early 2020, they may now be considered a more reasonable option if an employer was able to successfully adopt a work-from-home business model.  Work-from-home options post-pandemic will not be feasible for all businesses, however, and you should not assume a work from home accommodation is necessarily reasonable one. An employer cannot be forced to extend accommodations that would cause their business to suffer undue harm or significantly disrupt their operations. 

While working from home part or full time might be an option for you, reasonable accommodations can take many other forms. It may take experimenting with different reasonable accommodations before you and your employer settles on one or more that work best for both of you. Common accommodations for mental health disabilities may include flexible scheduling, intermittent leave for the employee to attend health appointments, frequent breaks, removal of distractions, a task reminder system, and/or a quieter work environment. While you can suggest reasonable accommodations unique to your situation during the interactive process, employers are not obligated to grant every accommodation you might propose. It can often be more difficult to find a workplace accommodation that works for both the employer and the employee when dealing with a mental health disability as compared to a physical disability, so it is important to stay flexible and open-minded when engaging in the interactive process.

It is also important to know, that while they may not elect to do so, your employer has a right to request medical authorization from your healthcare provider, which should indicate what medical restrictions you have, if any. This will assist your employer in determining what accommodations they can or cannot reasonably accommodate. The interactive process is a two-way street and both parties must engage in good faith. If you find your employer is willfully ignoring your requests for reasonable accommodations, refusing to engage in the interactive process or creating unnecessary obstacles for you during the interactive process, contact an attorney to fully understand your rights.  

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Employers: Requiring COVID-19 Vaccination

Written By: Christopher B. Dolan and Emile A. Davis

This week’s question comes from Giuseppe J. in Orinda: I run a small business. Having survived the worst of this pandemic, I am reopening my store soon. Some of my staff have received the COVID-19 vaccination, but not all of them. For the safety of all of the employees, and to protect the public and selfishly, my own potential liability and health, I would like to require all of my employees to be vaccinated in order to return to the worksite. Is that something that I can do without breaking the law? 

Dear Giuseppe: Thank you for this important question. As vaccines become widely available and more businesses are reopening, this question will affect employees and business owners throughout California. Generally, pursuant to both federal Equal Employment Opportunity Commission (EEOC) guidance, as well as the California Department of Fair Employment and Housing (DFEH), an employer may require an FDA approved COVID-19 vaccine as a condition of employment or return to the workplace. However, there are several areas to pay special attention to and/or which may allow an exemption to individual employees.

Disability Accommodation

A qualified individual with a disability may be entitled to an exemption from an employer required vaccine policy. The FEHA requires employers to make reasonable accommodations to an employees’ known disabilities. If an employee objects to vaccination on a disability related basis, the employer must engage in an interactive process to reasonably accommodate the employee. If an accommodation is available that does not create an undue hardship on the employer, it must be provided to the disabled employee. However, if the employee cannot perform the essential functions of their position in a manner that doesn’t endanger the health or safety of others, even with reasonable accommodations, the employer may exclude the employee from the workplace. 

Religious Accommodation

If an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. The accommodation analysis is not as stringent as with disability. Unless specifically requested by the employee, a religious based accommodation is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace. 

But I Don’t Trust the Vaccine — Employee Refusal 

Some people are afraid of, or uncomfortable getting the vaccine. If an employee refuses to be vaccinated with an FDA-approved COVID-19 vaccine but does not have a disability reason or sincerely held religious reason for not being vaccinated, the employer does not have to accommodate that employee. The employee may be refused access to the worksite. 

Employer Inquiry

As part of returning to work, employers may seek limited medical information. Employers may generally ask their employees entering a workplace whether they are experiencing COVID-19 symptoms and/or require proof of vaccination.

Requesting proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination since there are other unprotected reasons a person may not be vaccinated.  However, because such documentation could potentially include disability related medical information, an employer should specifically omit any other medical information from that documentation.  Importantly, if a mandatory vaccine policy is enacted at a workplace, information obtained would be considered a confidential medical record and that information must be kept private and maintained separately from regular personnel files.

The scope of permissible inquiry may change over time.  As cases decrease or increase, these standards could change — employers should rely on the CDC and other public health authorities for guidance.

If you would like further guidance as to the DFEH or EEOC, the following links may be helpful.

Thank you, Giuseppe, for the opportunity to discuss this important and emerging legal issue.

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How to Safely Reopen Schools During COVID-19

Written By Christopher B. Dolan and Allison L. Stone

Most of California’s approximately 6 million students, grades K-12, have not been in the classroom since March of 2020 due to COVID-19.  Indeed, Governor Newsom has come under significant pressure to get California’s public schools open. Everyone – teachers, parents, and students alike – are eager to get students back to in-person school as soon as possible. There is little dispute about that. The question is: How do we do this safely? 

Many teachers are still not vaccinated. The strong California teachers’ unions have maintained that teachers getting vaccinated is necessary to reopen schools. However, Governor Newsom and other lawmakers disagree.

Similarly, guidance from the Centers for Disease Control and Prevention (CDC), does not require that all teachers be vaccinated to reopen schools. Rather, the CDC advises that schools can safely open for some in-person learning, even with moderate levels of virus transmission in the community, by following other safety measures including wearing masks, maintaining physical distance, keeping smaller class sizes, providing personal protective equipment to schools, and increasing availability of testing facilities.

With that said, the CDC has asserted that teachers and school staff should be included in phase 1b of vaccination programs along with frontline workers and those age 75 or older. Likewise, on March 2nd President Biden announced that he was directing all states to prioritize teachers, staff and childcare workers for the COVID-19 vaccination, with the goal of them obtaining their first shots by the end of March. 

However, states ultimately make the decision on what groups are prioritized for receiving the COVID-19 vaccine, and every state is handling this CDC guidance differently. Teachers and other school staff members are on many state priority lists, but certainly not all of them. As of the beginning of March 2021, the available data suggests that some or all teachers are eligible to receive the vaccine in only 34 states, the District of Columbia, and Puerto Rico. This has left many teachers across the country feeling abandoned, undervalued, and demoralized by the vaccine rollout. 

Recently, groups of parents in California have been demanding that schools reopen without delay. Based on the CDC’s guidance, various school districts throughout California are eagerly working on plans to bring students back into classrooms. 

However, teachers’ unions have said that teachers are simply not comfortable returning to school buildings until they are fully vaccinated. Furthermore, continued research on how children respond to the vaccine is needed and it will still be quite some time before many students can get vaccinated. The risk to teachers may be even greater for teachers of younger students that neither understand social distancing nor understand the need to keep masks on. The lack of vaccines for younger children is therefore a serious consideration for many teachers faced with the question of when it will be safe to return to in person learning. Teachers are dying from COVID-19 in states that have hastily reopened.  Thus, some unions—including in California—contend that even after teachers and staff are vaccinated, virus transmission must decrease to ensure a safe return to in-person teaching.  Importantly, no matter how much we all want to reopen schools, California has limited power to do so unless unions agree. 

Research shows that not just teachers, but also many parents in California are extremely concerned about a hasty reopening. To date, Governor Newsom has not stated whether he would consider forcing schools to reopen or using his emergency powers to suspend local bargaining. 

As of March 8th, San Francisco officials plan to reopen classrooms for younger students starting April 12, under a tentative agreement reached with the teacher’s union. The agreement was announced after months of debating how and when children and teachers could safely return to in-person school. It is still unclear how many of the district’s students will be able to return to in-person school before the end of the school year in June. 

As of March 9th, after eight months of negotiation, Los Angeles Unified School District and its teachers’ union reached a tentative deal to reopen in-person instruction starting in mid-April. This agreement is subject to approval by the LAUSD school board and ratification of the membership of the union, United Teachers Los Angeles. 

Unfortunately, there is simply no quick fix as to when and how to safely reopen schools. While the path to reopening schools continues to be anything but clear, the good news is that on March 11th, President Biden promised rapid vaccination progress, stating that all adult Americans will be eligible for the vaccine by May 1st and announced the launch of a national website to facilitate those vaccinations.

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