Medical disability rights in the era of COVID-19 (Part 2)

By: Dianna Albini & Christopher Dolan

 

Jordan V. asks

Q: “My medical condition falls within a class of persons at greater risk for contracting COVID-19 and I have a doctor’s letter documenting this risk. I went to a nationwide grocery store chain during hours designed for high risk shoppers. The store manager refused to give me access, despite my showing the manager the letter my doctor provided. Were my rights violated?

A: Jordan, thank you for asking an important question.

The Americans with Disabilities Act became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure people with disabilities have the same rights and opportunities as everyone else. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications.

The specific facts you have described — that despite showing the store manager your medical documentation, you were arbitrarily refused entrance during special hours set aside to shop for a limited number of individuals at high risk for contracting COVID-19 — would be a violation of your rights pursuant to the ADA.

If you feel you experienced discrimination based on a medical condition in violation of Title III, Disability by Public Accommodations and in Commercial Facilities you should contact an attorney experienced in disability rights to explore your rights and discrimination with the following federal, state and local agencies:

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Medical disability rights in the era of COVID-19 (Part 1)

This week’s question comes from Domenic A. who writes:

Q: “I have a medical respiratory condition that makes breathing difficult when wearing personal protective equipment. I was out of town on business staying at a well-known hotel chain. The hotel requires all guests to wear personal protective equipment at all times, unless actively eating or drinking and enforces social distancing requirements. I informed the hotel manager of my medical condition that made wearing personal protective equipment harmful to my health and asked for an accommodation for my medical condition. The manager of the hotel chain refused to accommodate my medical condition and required me to wear my personal protective equipment. Do I have any legal recourse based on the hotel manager’s failure to accommodate my medical disability and requiring me to wear a face covering?”

A: Domenic, thank you for asking a great question.

According to the Americans with Disabilities Act, Disability by Public Accommodations and in Commercial Facilities Title III Regulations – 61. 28 CFR Part 36, protects individuals who are targets of discrimination including, but not limited to mental and medical disabilities. Determining the existence of discrimination is complicated as we are currently navigating unprecedented waters due to the COVID-19 pandemic.

On June 30, 2020, U.S. Department of Justice Assistant Attorney General for the Civil Rights Division, Eric Dreiband issued press release 20-603 warning the public that placards, signs, social media posts and other documents bearing the Department of Justice seal claiming that the Americans with Disabilities Act exempts individuals from face mask requirements are fraudulent. There is no blanket exemption.

On June 18, 2020, Gov. Gavin Newsom ordered all Californians to wear face coverings. As updated on June 29, the California Department of Public Health website, the following individuals are exempt from wearing a face covering:

  • People younger than 2 years old. These very young children must not wear a face covering because of the risk of suffocation.
  • People with a medical condition, mental health condition or disability that prevents wearing a face covering. This includes people with a medical condition whose wearing a face covering could obstruct breathing; or who are unconscious, incapacitated or otherwise unable to remove a face covering without assistance.

Note: People exempted from wearing a face covering due to a medical condition who are employed in a job involving regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom edge, as long as their condition permits it.

While there are exemptions to the governor’s mandatory face covering order for those with medical disabilities, in light of the COVID-19 pandemic, if the hotel manager is unable to accommodate any documented medical condition related to personal protective equipment, there is no basis for legal action under these circumstances.

If you feel your rights have been violated, you may file a federal, state and local complaint form with the appropriate governmental entity listed below.

  1. U.S. Department of Justice: https://www.ada.gov/t2cmpfrm.htm
  2. State of California, Department of General Services: https://www.documents.dgs.ca.gov/dgs/ADA-form.pdf
  3. City and County of San Francisco: https: //sfgov.org/mod/ada-complaint-request-assistance
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Your Rights When You Are Detained: Do You Really Get A Phone Call?

Detained? No. Arrested and booked? Yes.

If a person is “detained,” the police officer is holding a person for a short amount of time. If a reasonable person would not feel free to leave, or police prevent a person they are questioning from leaving, that detention turns into an arrest. Police take arrestees to a local jail precinct, where they are then booked. In either scenario, the Fifth Amendment right to remain silent applies and should be invoked.

After a person is arrested and booked, they are entitled to phone calls. California Penal Code Section 851.5 provides that arrestees are entitled to three phone calls immediately upon booking except where physically impossible, and no later than three hours after arrest. Arrestees are entitled to make at least three phone calls at no expense if they are within the local calling area and at the arrested person’s own expense (if outside the local calling area). Local calling areas do not necessarily refer to anything within the same area code as the jail. A sign posted near the telephone booth will provide information about what phone numbers are considered local. Collect calling is also an option for making phone calls to a number outside of the local area. Arrestees may call an attorney, a bail bondsman, or any friend or relative.

If the arrestee is a parent with custodial responsibility for a child, then the arrestee has the right to two additional phone calls for the purpose of arranging for the care of a minor child or children during the arrested person’s absence. These phone calls must also be given immediately upon request, or as soon as practicable.

The right to post-booking phone calls is protected by the Fourteenth Amendment of the U.S. Constitution because California Penal Code Section 851.5 creates a liberty interest. Denying arrestees the opportunity to make a telephone call is a civil rights violation. The Fourteenth Amendment guarantees the right to due process, and is particularly protective of the minimal liberty interests granted to prisoners, such as the ability to make a phone call when arrested and booked.

However, this right to phone calls is not without complications.

First, assume that the police will record any phone call made from jail. These phone calls are not private and may be used against you. Police routinely record the outgoing portion of the phone call, so long as that phone call is not with an attorney.

Additionally, know that in practice, police officers have ways to deny phone calls. Here is one trick: A police officer denies an arrestee their constitutional right to a phone call, then entice with the opportunity to sit the arrested person in a waiting room with a television, instead of a holding cell with concrete and metal benches. The catch to get in the waiting room, which has cushioned chairs and a television, instead of the holding cell?: Sign a statement that says the police provided the opportunity to make three phone calls within three hours of booking. If an arrested person asks for clarification since the police did not, in fact, provide the opportunity to make three phone calls, the arrestees returns to the holding cell instead of the waiting room. After several hours, a cushioned chair and a television look better than a metal bench, concrete floor and a toilet within public view of anyone walking through the area.

If the police denies arrestees their constitutionally protected right to phone calls from jail, then there may be a civil cause of action against the police officers. Police officers are not entitled to qualified immunity for this civil rights violation. Qualified immunity purportedly balances the interests in the vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The goal is to make it possible for officials to reasonably anticipate when their conduct may give rise to liability for damages.

But qualified immunity does not immunize police officers where the civil right is so clearly established under law that no reasonable officer could have believed that they were not violating a constitutional right.

The right to phone calls after booking is such a right because the statute establishes that police officers do not have discretion to decline phone calls to arrestees, and the consequences for not allowing someone the ability to call family members or an attorney and let them know where they are can be dire.

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What the impact of the Supreme Court’s decision will mean for LGBTQ employees

Written by: Matt Gramly 

On Monday June 15, 2020, the United States Supreme Court handed down a decision stating with firmness and clarity that any employer who fires an employee for being gay or transgendered is in violation of the law. The law being violated in that instance would be the Title VII of the 1964 Civil Rights Act. Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The basic argument is that if an employer has two employees, one male and one female, but only fires the male employee because he dates men, but doesn’t fire the female employee because she dates men, the employer has discriminated against the male employee on the basis of his gender. The employer accepts behavior from the female employee that he does not accept from the male employee and the only difference between the two employees is their gender.

This ruling is monumental for LGBTQ rights. The full complement of anti-discrimination employment protections found within the Civil Rights Act have now been extended to the LGBTQ community across the country. It is now illegal in the United States for any employer to fire an employee on the basis of their sexual orientation or gender identity. Prior to Monday’s decision it was still legal for an employer to do so in 26 states. With Pride celebrations and parades being canceled across the country because of the coronavirus pandemic, it is also fitting that this decision was handed down by the Court during Pride month.

Also of great importance is which Court Justice wrote this opinion. The decision itself was a 6-3 majority with conservatives Chief Justice John Roberts and Trump-appointed Justice Neil Gorsuch joining the Court’s four more liberal members.  The forceful, no-nonsense opinion was written by Justice Gorsuch in very clear language leaving no ambiguity to the Court’s decision.

An immediate backlash formed on the right in this country. Many religious conservatives decried the ruling as an attack on religious freedom. Evangelical leader Franklin Graham issued a fiery response to the ruling on Facebook, stating, “I believe this decision erodes religious freedoms across this country. People of sincere faith who stand on God’s Word as their foundation for life should never be forced by the government to compromise their religious beliefs. These are the freedoms our nation was founded on.”  He is arguing that his religious freedom is negatively impacted and should be prevented from firing someone from his church for being gay or transgender. The law now disagrees with him.

His argument strikes at a fundamental misunderstanding of the term “religious freedom” specifically as used by someone like Mr. Graham. Religious freedom means the freedom to practice whatever religion you choose. It also means, as stated in the First Amendment, that the government cannot force you to practice any particular religion against your will. For example, “I cannot do something because it goes against my religious beliefs,” is a perfectly distilled illustration of this. However, “YOU cannot do something because it goes against MY religious beliefs,” the position taken by Mr. Graham, is twisting the concept of religious freedom to a degree that is both unacceptable in this country and is in violation of the ideals of individual freedom embodied by our Constitution and Bill of Rights, as affirmed Monday by the Supreme Court. Very often, those who use the term “religious freedom” the loudest and most frequently leave off the two words that actually define this idea for them, “religious freedom to discriminate.”

Many take the position that their religious freedom, their freedom to BE a religious person and to practice their religion in the United States, is being destroyed because they will no longer be permitted to discriminate against members of the LGBTQ community in their hiring practices. Understand that no rights have been taken from Mr. Graham’s evangelicals or any other religious group in this Court ruling. Justice Gorsuch, as he wrote in his opinion, simply read the plain text of the 1964 Civil Rights Act and said, “it is a violation of the law for any employer to discriminate against an employee because of their gender,” which is exactly what the Act says. One astute observer put it this way; Equal rights for others does not mean fewer rights for you – it’s not pie. Another observer, Jesus Christ, put it this way, “You must love your neighbor as yourself.”

The Dolan Law Firm has fought tooth and nail for the rights of the LGBTQ community for decades and will continue to do so. We celebrate the Supreme Court’s ruling as we celebrate Pride month with our families, friends, co-workers, and community. Happy Pride everyone!

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Is it legal to shoot video of police?

This week’s question comes from Kimmy who writes:

Q: “I have attended recent Black Lives Matter protests to bring awareness to excessive force by Police against African Americans. At the last protest I attended, a police officer blocking an intersection told me to put my phone down and said I couldn’t film him. I have seen many videos from these protests and I wanted to document the protest myself. Am I allowed to film police officers?”

A: Kimmy, you raise a very important question. Many have seen the sickening cell phone footage of George Floyd with a police officer’s knee on his neck. We have seen even more cell phone video images of police abuse during some recent protests. These recordings have made a significant impact in the public perception of systemic racism within police forces and are acting as an import catalyst for change. This makes the conditions under which citizens may rightfully document the activities of law enforcement officers increasingly important to understand. Especially when, as happened to you, the police ask you to stop filming. The right to film police officers raises a number of legal questions including Constitutional First Amendment issues as well as California state laws.

The First Amendment of the United States Constitution prohibits the Government from passing laws that would infringe upon, among other things, free speech, and the freedom of the press.

Most courts have held that the First Amendment gives individuals the right to document police officers in public while they are performing their duties.

Inherent in the First Amendment is the right to freely discuss our government, as well as the freedom of the press and right to public access to information. Now that cell phones and other compact filming devices are ubiquitous and social media has become a primary source for people to receive their information, “news” is increasingly gathered and disseminated by members of the public. Fittingly, courts have recognized this change and held that the freedom of the press also applies to citizen journalists and documentarians just as it does to formal members of the press. (Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)

There are limits, however. In California, an individual may record an on-duty police officer, but may not do so surreptitiously (the camera must not be concealed or hidden). Under California Penal Code Section 647, audio recording, and potentially videotaping, a police officer with a concealed camera may constitute a misdemeanor. While openly recording an officer is legal, the conduct of others included in the audio and video may be protected. California Penal Code 632 makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the participants’ consent.

When filming the police, one must not interfere with the duties the officer is performing. It is not legal to interfere with those duties simply because one is recording. For example, an officer may need a reasonable amount of space to effectively detain a person. Even if one disagrees with the right of an officer to detain a person, it is not lawful to interfere with an arrest. If the officer is not impeded, it is entirely legal to record the officer.

Another important limitation to the right to film police is that it is lawful only on public areas such as streets, sidewalks, or other public lands. California has anti-stalking and “anti-paparazzi” laws which make it unlawful to record anyone on private property without consent. These laws also apply to off duty officers. To lawfully document a police officer, the officer must be in the performance of their duties and on public land.

While it is entirely legal for a person to film a police officer in California within these restrictions, it is important to use common sense. As you discovered, the right to film does not mean that the police will not confront a person who is filming them and ask them to stop. If this happens, it is best to remain calm and polite, and simply explain that you are exercising your First Amendment rights. It is always important to make sure the officer does not perceive a physical threat. If using a phone or small recording device such as a GoPro, have a colorful case or cover and never hold it in a manner that may allow it to be confused by an officer as a weapon. It is not advisable or legal to threaten an officer’s safety.

Finally, even though filming is lawful, a citizen journalist may still lawfully be questioned by a law enforcement officer, though there is no requirement to respond or answer any questions. And, unless a person is driving, there is no California law that requires a person to provide an officer with identification. If questioned or asked for ID, simply ask “am I being detained, or am I free to go.”

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Constitutional rights must balance with need to protect public health

Written by Matt Gramly and Christopher B. Dolan:

Does the First Amendment’s “right of the people to peaceably assemble” still apply during a pandemic or to protest marches during a pandemic?

The First Amendment to the Bill of Rights as attached to the Constitution of the United States of America reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

However, as with any right also comes responsibility. Rights may be regulated by the state. The First Amendment also guarantees freedom of speech, but it is illegal to yell “Fire!” in a crowded movie theater if there is no fire. The Second Amendment guarantees the right to bear arms, but private ownership of military style assault rifles or machine guns in California is heavily regulated if not outright banned. Such is the case with the right to assemble. The right is guaranteed under the Constitution, but it can be regulated by the state, especially if the public health is at issue.

The First Amendment right to assemble is as important today as it was when it was written in 1791. The state’s right to regulate this right is particularly important today as we confront a global pandemic and nationwide protests in response to the murder of George Floyd by police in Minneapolis, Minnesota. This issue was addressed directly by the U.S. Supreme Court in the 1905 case of Jacobson v. Massachusetts. The question before the court was whether or not the state could force people to get the measles vaccine during a measles epidemic even if they did not want the vaccine.

Justice John Marshall Harlan wrote the following in the decision to allow states to require measles vaccinations: “The Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. A community has the right to protect itself against an epidemic and may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” The Court ruled that the state may regulate or curtail an individual’s freedom, even though it is guaranteed within the Constitution, in the context of preventing the spread of disease during an epidemic.

The same principle has been applied to the coronavirus pandemic with states issuing shelter in place orders. One type of gathering of particular significance is church gatherings. The First Amendment guarantees the right to free expression of religion, along with the right to peaceably assemble, such as in a church. Shutting down religious services is a very important issue for millions of Americans who argue that nothing is more individual or important than religious faith. Many argue that church services are essential and must remain open to worshippers. How can a Safeway or a Home Depot or a marijuana dispensary be deemed essential, but not a church? It’s a valid question but the courts have mostly sided with the states’ right to regulate.

Churches involve gatherings of large numbers of people in confined spaces indoors and frequently involve singing. Since the coronavirus can spread easily through respiratory system activities such as talking or coughing, singing is an ideal way to spread it, especially indoors. Churches that continued to meet in violation of state orders have become virus transmission “hot spots” as a result.

On May 25, George Floyd, an African American man, died in police custody. Following soon after the killing of Breonna Taylor by Louisville, Kentucky police as she lay sleeping in her bed, and the murder of Ahmaud Arbery by three white men in Georgia, we have seen many protests against police brutality and the killings of African Americans by police. Large protests, like church gatherings, seem like the perfect environment for spreading the coronavirus, except for the fact that they take place outside instead of indoors.

Protest marches with people assembling peacefully petitioning the government for redress of grievances are a clear example of our First Amendment rights; but, we are still in the midst of a dangerous global pandemic. Thousands of people marching in very crowded settings are a big concern for medical professionals and many believe the marches will become hot spots of disease transmission.

Why can the government shut down churches and businesses, but not protest marches? One major distinction is that protests occur outdoors unlike churches and church services, which are generally indoors. Ultimately, local governments struggling to protect their citizens’ First Amendment rights to protest or worship must balance those rights with the important need to protect public health.

Massachusetts Gov. Charlie Baker said on June 1: “As we combat the pandemic, we remain in a real struggle with how to carry out the bedrock principles of democracy with the best medical guidance available to fight an infectious, contagious disease.”

The bottom line is that the First Amendment’s right to assemble can be regulated or curtailed by the state, especially during a pandemic. As of the writing of this article, the U.S. has more than 2 million confirmed coronavirus cases and 112,000 deaths from the disease.

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Our first amendment right to peacefully protest is sacrosanct

By: Lourdes DeArmas and Christopher Dolan

For the past 9 days, in response to the death of George Floyd at the hands of Minneapolis police, people across the US and throughout the world have taken to the streets to demand racial justice and an end to police brutality and systematic racism against Black people. Some of the responses of our Federal, State, and Local governments in the past 72 hours are raising red flags and calling into question the police response to the protests and the curfews that have been imposed.

The right to protest is fundamental to our democracy and sacrosanct. The Founding Fathers thought that the right was so important that they wrote it into the first 45 words of the Bill of Rights and labeled it the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As the Supreme Court observed in 1958, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”

In an eerie coincidence of numerical proportions, the 45th President is aiming to thwart, limit, or outright eviscerate the fundamental right to protest and have grievances heard. On Monday, President Trump left the White House, walked across Lafayette Park in Washington, D.C. and posed in front of St. John’s Episcopal Church while holding a Bible. The path to this photo op was cleared by the U.S. Park Police, Secret Service, Department of Homeland Security, and other agencies. The overwhelmingly peaceful protesters and members of the media were driven from the area using aggressive and violent crowd control tactics which included tear-gas, rubber bullets, smoke canisters, pepper spray pellets, and good ole’ brute force.

It has been widely debated as to whether tear gas or smoke were really used on the protesters. However, that debate is hollow. It was a crowd of American citizens engaged in constitutionally protected protests against police violence. So it does not matter what was used because it was fired into a crowd of people just wanting their voices to be heard and fighting to prevent the injustice that was suddenly thrust upon them. Imagine the heartbreaking absurdity of sanctioning police brutality at a protest against police brutality.

The simple reality cannot be brushed aside by rhetoric or partisan sound-bites. The clear and undeniable fact remains that law enforcement officers who harass peaceably assembled citizens are violating the First Amendment, no matter the tactic used. It is unlawful and those rights must be protected.

Even though the incident on Monday in Washington, D.C. occurred before the curfew set by the mayor, curfews in and of themselves violate civil liberties. Public officials at every level of government are making arbitrary decisions about when, where, and what time citizens are allowed to have their voices heard. Just like it is wrong to forcefully disperse protesters before curfew, it is just as wrong to disperse them after curfew.

Under state law, cities and counties can impose curfews during a state of emergency “to provide for the protection of life and property.” However, there must be actual or imminent violence beyond the means of the government to address the issue.  That threshold must be met. Unfortunately, curfews are enforced in very arbitrary and discriminatory ways. Historically, curfews have been used to suppress the voices of the people.

Even if curfews are being enacted for a legitimate purpose, there is an added danger for continued police misconduct. This is not a fear but a reality that is broadcast not only on the television news but throughout social media. The chilling scenes play out daily since the imposition of curfews where law enforcement rush crowds of peaceful protesters as soon the curfew time begins. Like a ticking time-bomb that explodes as soon as the clock strikes. Many of the violent confrontations have occurred under the cover of curfew enforcement. Unfortunately, depending on the particular law enforcement officer enforcing the curfew, a crowd could encounter a warning to go home, a ticket, mass arrests, or even rubber bullets. Those are just the mild encounters.

But the risk is not just one sided. We cannot also deny that a heavy-handed response to protests and the imposition of curfews also place the lives of law enforcement officers at risk. Violent confrontations sometime become unavoidable when fight or flight takes over. Additionally, there are those that are just waiting for an opportunity to inflict harm on law enforcement. Those consequences are not considered by those in power when the goal is to eviscerate the fundamental right to protest government action. It is very easy to make demands and insist on “dominating” the protestors with a heavy hand of “law and order” when you sit behind a desk or hide in a bunker.

In short, there is no denying that government and law enforcement have a goal of curtailing the rioting, looting, and destruction of property. But those interests must be weighed against a sweeping infringement of a fundamental right. The use of force, such as arrests, or the use of less-lethal weapons, should not be imposed against protesters unless strictly unavoidable. Otherwise the intended effect would be muzzling voices that need to be heard and censorship.

We will gladly represent anyone whose rights have been infringed.

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Aid is available for unemployed immigrants during the pandemic

Today’s question comes from Arturo R. in the Mission who asks:

Q: “I have lost my job because of the virus. I am not permitted for work even though I have lived here 10 years. My wife lost her job because she has to care for the kids. They tell me that I can’t get unemployment but I read that I can get a check from California. Can I? Can my wife? Thanks.”

A: Dear Arturo, this virus has harmed so many people and its impact seems to fall hardest on one of the hardest working populations, immigrants. As California Governor Gavin Newsom recently stated, “California is the most diverse state in the nation. Our diversity makes us stronger and more resilient … Every Californian, including our undocumented neighbors and friends, should know that California is here to support them during this crisis. We are all in this together.”

The Federal Government, through legislation, created a “stimulus program” under the CARES act which gave one-time payments of up to $1,200 per person, $2,400 per household, and up to $500 per qualifying child. This relief is only available to people with permission to work in the U.S.

Governor Newsom, through an executive order, created the Disaster Relief Assistance for Immigrants (DRAI) project which has authorized up to $75,000,000 in state funding to go to undocumented Californians affected by the coronavirus. An additional $50,000,000 is being raised through private contributions. Eligible applicants can receive up to $500 per adult, with a maximum of $1,000 per household.

A person is eligible if they can provide information demonstrating that they (1) are an undocumented adult (person over the age of 18); (2) are not eligible for federal COVID-19 related assistance, like the CARES Act tax stimulus payments or pandemic unemployment benefits; and, (3) have experienced a hardship as a result of COVID-19.

To be eligible you must provide information and documentation to verify your identity, home or mailing address, and to demonstrate that you have been impacted by COVID-19 (showing you lost your job, couldn’t work because of caring for an sick relative or a child who couldn’t go to school, a member of your household lost their job affecting the ability to pay for the rent, food, etc.).

The program and funds are being administered by 12 non-profits throughout the state. In the Bay Area (Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara) the program is being administered by Catholic Charities of California which can be reached at (866) 490-3899 and by internet at www.cceb.org (Alameda and Contra Costa) , www.catholiccharitiessf.org (Marin, San Francisco & San Mateo and www.catholiccharitiesscc.org (Santa Clara). They can provide additional information on eligibility and help you make an application.

People are often afraid that receiving public funds may make them a “public charge” and affect their ability to gain legal status and/or subject them to deportation. According to the State of California’s website, “This disaster relief assistance is not means-tested and is one-time assistance. The Federal Government does not list this assistance as a public benefit for a public charge consideration.”

The information you provide to the nonprofit organization will only be used to confirm your eligibility and provide the assistance to you. The nonprofit organizations will provide general information (e.g. age, gender, preferred language, etc.) to the State, but none of your personal information (e.g. name, address, etc.) will be given to any government agency. Money will be distributed through the non-profit agency in the form of “payment cards” which will function like debit cards.

You should apply immediately if you qualify as the money will run out fast. Arturo and everyone else, this is a time for coming together and supporting each other, we are all one family. Stay safe and be kind everybody.

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Protecting doctors who voice concerns about inadequate patient care

Last week’s question was posed by a doctor, who wanted to remain anonymous, who asked what her/his rights were in a situation where they were working around COVID-19 patients, were told to re-use their personal protection equipment (PPE) such as masks, goggles and gowns, in violation of hospital policy.

The reader indicated that they were aware that PPE had been diverted from the treatment floors for the personal use of administrators and, she/he believed, for their families. The reader stated that she/he voiced concerns for patient safety, and her/his safety, caused by the reuse of PPE. Upon expressing those concerns the reader was told that they should, in essence, “mind their own business if they know what’s good for them.” Last week, I addressed the issue of an employer’s responsibility to provide a safe workplace with the required and appropriate safety gear and equipment. This week I am addressing the issue of a physician’s rights to express concerns about patient care without fear of retaliation.

A doctor who voices her concerns about inadequate patient care and safety is supposed to be protected against retaliation by California Business and Professions Code Section 2056. It is the public policy of the State of California that a physician is to be encouraged to advocate for medically appropriate health care for his or her patients. To advocate for “medically appropriate health care” includes protesting a decision, policy, or practice that the physician reasonably believes impairs the physician’s ability to provide medically appropriate health care to his or her patients.

Any person who renders a decision to terminate or penalize a physician employee or contractor for advocating for medically appropriate health care is in violation of the law. Section 2056 states: “No person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, or in any way discourage a physician and surgeon from communicating to patient information in furtherance of medically appropriate health care.” So the law goes beyond just advocating for patient care internally, it could also protect a physician who brings those concerns to the attention of the patient, outside regulators, and even the press.

When a physician is retaliated against they can bring a civil action for retaliation and/or termination in violation of public policy, a whistleblower complaint under the Labor Code, and several other common law causes of action. A prevailing physician could receive both past and future economic losses, non-economic damages for emotional distress, shame, humiliation, etc., and, in some cases where malice, fraud or oppression can be demonstrated, punitive damages to deter the individuals or facility from repeating the behavior.

When analyzing what is “appropriate patient care” the determination must factor in the locality and other circumstances under which treatment was given. For example in San Francisco, it may be the standard of care to do an MRI with contrast (radioactive dye). In a very rural urgent care facility, with no MRI, the standard of care would be different.

The same is true with COVID-19. Care and treatment of COVID-19 patients will have to be examined under the conditions which existed at the time of the care. There are circumstances wherein there may not be enough ventilators for everyone who needs one to get one. A doctor may be forced to “triage” the patients and determine who is more likely to survive and withhold treatment from a patient who is more likely to die. In your case, had there truly been a shortage of PPE, as we see across the country, the fact that PPE would be changed between patient visits in pre-coronavirus times, does not set the standard in coronavirus-time. Your question, however, involves members of the administration taking PPE for themselves and their families thereby diverting them from both employee safety and patient care. As I said last week, California Labor Code Section 6406 makes it illegal for anyone to remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment. If they are diverting safety equipment from you and patients, for their own personal use, it should not be justified because of COVID-19. In my eyes, it makes it that conduct much more despicable.

You should document all important facts concerning the inadequate patient care, who is taking the PPE home, and any claims or complaints you make, to whom, when, and who witnessed it. You want witnesses or, preferably, a date and time stamped (e-mail) contemporaneous writing. I would suggest that you examine your personnel folder before making a complaint so that if you later see backdated documents, you can identify them. If you feel strongly enough about what’s happening and are principled enough to take action, you should file a written complaint with the Medical Board.

Be aware, hospitals wield a lot of power. Doctors, hospitals and practice groups, will often terminate a doctor who advocates for patient care and then claim it was a result of a physician’s clinical deficiencies, or that they were psychologically unstable. I have handled three such cases. The hospitals’ conduct was despicable. Fortunately, on the whole, there are many more good doctors than that are unscrupulous ones and, if you properly document and escalate your complaint, hopefully proper action will be taken. If you are retaliated against then get yourself a good trial lawyer as the hospitals have legal specialists who do nothing but fight to cover up wrongdoing.

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What rights do physicians have when being denied protection from COVID-19?

This week’s question comes from an Anonymous who asks:

Q: “I work in health care in the Bay Area as a physician. I don’t want to say too much as I am afraid I might get fired. I am frequently exposed to COVID-19 patients. I love my job and I am proud to be on the front lines helping people who are suffering. That’s why I became a doctor in the first place. What is different now is that we are literally laying our lives, and the lives of our families, on the line every day we go into this battle.

I’m willing to do that as long as I have the proper equipment. You wouldn’t send a soldier into war with a gun and no bullets, but we are being sent into work with inadequate PPE [Personal Protective Equipment] every day. I get that we have to make do with what we have but I know that there are stores of supplies which senior medical and administrative staff have diverted for themselves and their families.

I am also fearful that we are putting patient safety at risk. I brought this up and I was told to mind my own business if I knew what was good for me. I was told that I should not get involved with things that don’t concern me and that we had to re-use our PPE. My work brings me into contact with COVID and Non- COVID patients. I am afraid that the lack of PPE is placing patients, and health care workers, at an increased threat of COVID and its complications. I am afraid that I may get fired or disciplined if I keep asking for PPE. What rights do we health care workers have under these circumstances?”
P.S. Please tell your readers to take this seriously, follow all safety precautions, and socially distance. Once you are a patient, the distance you worry about is the distance between life and death, and that’s out of your control.”

A: Thank you for the years you spent studying and training to be prepared for this emergency, reporting to duty and placing your life on the line for us all. Your question involves two areas of law:

  1. the right to a safe workplace, and
  2. freedom from retaliation for advocating for patient care.

The first question invokes the California Labor Code; the second invokes the Business and Professions Code. This article will address the application of the Labor Code. Next week’s column will address the Business and Professions Code.

  • California Labor Code § 6401, Duty to furnish safety devices and adopt safe practices and procedures, reads as follows: “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
  • California Labor Code § 6403, Failure to furnish safety devices or adopt safe practices and procedures, reads as follows: “No employer shall fail or neglect to do any of the following:

(a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.

This code provision requires your employer to provide you with PPE and an environment, which under the circumstances, are reasonably adequate to render your workplace safe. Healthcare employers and facilities are also required to have a set of practices and policies in place to provide for workplace safety including policies dealing with the handling contagious patients and the use of PPE to protect employees and others.”

(a) Remove, displace, damage, destroy or carry off any safety device, safeguard, notice, or warning, furnished for use in any employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for the protection of any employee, including himself, in such employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary to protect the life, safety, and health of employees.

There is “no private right of action” to sue an employer to force compliance with these safety standards. An employee can call CAL-OSHA and report an unsafe work environment and they can inspect and enforce them. However, if an employee is retaliated against, in any way, for opposing violation of these laws, disclosing the violations to a supervisor or government agency, or demanding a safe workplace, an employee can maintain a legal action for what we refer to as the “wrongful termination, or retaliation, in violation of public policy” and for “whistleblowing” under California Labor Code Section 1102.5. This provides for a potential for recovery of lost wages, past and future, damages for emotional distress and, in some circumstances, punitive damages.

I suggest that you document your concerns so if you are retaliated against it is clear that it was in response to your exercising your rights to have a safe work environment. These are trying times. Hopefully nothing retaliatory will happen to you as all of our energies need to be focused on supporting you on the front lines and not in fighting legal battles. If something untoward does happen, contact an experienced employment trial lawyer to help you navigate the legal system.

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