Civil Rights | Dolan Law Firm

You too, Us too: The Strength in Numbers

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Fatima in the Bay Area:

I am a woman of color working at a big tech company in the Bay Area. I have been stuck in the same position for nearly seven years, while several of my white, male co-workers and even subordinates have been given opportunities for advancement. I’m worried my supervisor doesn’t consider me a serious candidate for a promotion, despite my excellent performance reviews. When there is a menial task to get done, it always seems to be assigned to me. At company events, my supervisor introduces me by first name only to corporate representatives, though he introduces the male members of my team using their full names. In meetings, I am frequently interrupted by male team members when I am trying to share feedback or ideas. I am hesitant to approach HR about this. I feel I will be told I have no proof and I am just imagining things. I’ve heard rumors that women in other departments have had similar experiences, but I’m not sure who they are and I’m too worried about my job security to go asking questions. Do I have any options here?

Thank you for your question, Fatima. Let me assure you that you are not alone in your experiences. What you have described, a mixture gender and potentially race-based discrimination and microaggressions, is being experienced on a grand scale throughout the tech industry by women. Men continue to outnumber women at every level and women are promoted at a lower rate than men, making up only about 38% of managers. While many companies couch themselves as “progressive” and profess to have inclusive diversity platforms, the disparities in the workplace between men and women and, disproportionately, women of color, persist.

Most recently, a group of both current and former Apple employees dissatisfied with the internal responses to their complaints of harassment, discrimination and retaliation have banded together and called for a collective exchange of stories and experiences in the workplace, spurring the #AppleToo hashtag on social media. The group’s website urges its coworkers at every level to collectively call for systemic change in the workplace, stating that,

“when our stories are collected and presented together, they help expose persistent patterns of racism, sexism, inequity, discrimination, intimidation, suppression, coercion, abuse, unfair punishment, and unchecked privilege.”

In circumstances such as yours, Fatima, there are several actions you can take to both protect yourself and connect with other women and/or persons of color with similar experiences. First, it is essential to document any incidences or circumstances you feel could be related to gender or race discrimination, including discussions with your boss regarding your interest in advancement opportunities and his response, instances of microaggressions and/or evidence of disparate treatment in the workplace. If possible, your written record should be created contemporaneously with the incidences they document and be marked with a date and time stamp. Contemporaneous records, especially those bearing a date and time stamp, are afforded more credibility than ones created after the employee suffers a termination or a disciplinary meeting. Your description should include the date, time, setting, potential witnesses involved and what was said. Be a meticulous historian and leave emotion out of it, if possible. Always assume an outsider, with no knowledge of you, your character, or your performance record, may someday be reading and evaluating your account of what occurred. While you can certainly share how the experience made you feel, resist the urge to vent.

The second step you can take is keeping your eye out for allies and sharing your experiences with them in a safe environment outside the workplace. It may feel intimidating to ask other women or persons of color if they, too, feel discriminated against or marginalized in the workplace. Therefore, it is often easier to share your own experiences with them first. If they have faced something similar, they are more likely to feel comfortable volunteering it on their own terms than they would if you questioned them about it directly. If they do end up sharing similar experiences, approaching human resources together can be a powerful approach. It is easier to dismiss one employee’s experience as an outlier, than it is to dismiss two or three similar ones, especially where the reporting structure is shared.

Nonetheless, if you find you are your only reliable witness, go to HR and report your concerns, preferably in writing. Do not operate under the assumption your concerns will be dismissed. Even if they are, it is unlawful for your company to retaliate against you for voicing your complaints about suspected gender and/or race discrimination. Your company has a vested interest in responding to discrimination claims appropriately, as a failure to investigate, only increases their liability. As always, documenting all communications you have with your supervisor and HR is an important tool to keep track of what has occurred and protect yourself should retaliation occur after filing an informal or formal complaint.

If you feel you are being harassed, discriminated against, or retaliated against because of your race or gender, contact an attorney that specializes in employment law. Making real, transformative change in the struggle against institutionalized implicit bias and overt bias, takes courage and numbers. The good news is the tech industry does not lack either.

Written By: Mari Bandoma Callado, Senior Associate Attorney and Director, DE&I

Dolan Law Firm hopes you and your family have a wonderful and safe Labor Day Weekend. To help you safely enjoy the end of the summer, we put together these safety tips:

Social Gatherings

Over the course of the last 18 months or so, we learned that social gatherings may lead to the spread of COVID-19. With hospitalizations and deaths due to the highly contagious delta variant of COVID-19, we encourage you to stay vigilant.

If you are attending a social gathering this holiday weekend please avoid being in a crowd and poorly ventilated spaces as much as possible, try to maintain a physical distance of 6 feet, wash your hands often, and wear a mask when outside your home, in public, and around others. If you are feeling sick or have been exposed to someone with COVID-19, we urge you to stay home.
Click here for more information on safely gathering and here on how to protect yourself and others. If you are not yet received the COVID-19 vaccine but are interested in learning more, click here.

Drive Safely

If you are going on a road trip or just driving around town this weekend, please drive safely. The National Safety Council estimates approximately 390 deaths and another 44,400 serious injuries over Labor Day weekend this year. Please wear your seatbelt, don’t drink and drive (designate a driver instead), and maintain a safe speed.
For more safety tips while driving, click here.

Swim and Boat Safely

If you are heading to the beach or the pool this weekend, please be cautious. Do not swim alone (in case you become incapacitated). If you are swimming with children, designate a responsible adult to supervise children at all times as they swim or play by the water. If you are going to the lake or a river, please wear a life jacket.
For more swimming safety tips click here.

If you will be on a boat, please do not underestimate the dangers of the water. According to the U.S. Coast Guard, most boating accidents occur because of excessive speed, lack of experience, and distractions. Do not drink and boat. It is against the law in California to operate a boat or water ski with a blood concentration (BAC) of 0.08%.
For more boating safety tips click here.

Written By Christopher Dolan and Lourdes De Armas

This week’s question comes from James P. in Daly City: I recently received a Jury Duty Summons. With everything that is going, do I still need to serve on a Jury? Should I ignore it?

Thank you for your question James.

It is true that many courtrooms have begun hearing jury trials, but many courts are prioritizing criminal cases. The Los Angeles Courts have been focusing on the 7000 criminal cases that are currently backlogged, according to Presiding Judge Eric Taylor.

This is pushing aside civil cases leaving many victims anxiously waiting for their personal injury trial. The delayed cases include:

people badly injured in car accidents,
medical malpractice,
workplace accidents,
sexual assault and
workplace harassment

The delays are primarily attributable to the pandemic shutdown of 2020. The apparent second surge of COVID-19 cases in various California counties are reinstating previous pandemic restrictions and quarantines. This trend may soon cascade to every county across the state and that could mean additional trial extensions that will continue to backlog all cases. This legal landscape is justifiably frightening to those awaiting verdicts.

There is another reason for delays that is plaguing every court across the state. So much that even criminal trials are being delayed. Jury trials whether criminal or civil are paralyzed without a key component: JURORS.

Within the past few months, courts from Sacramento to San Francisco, Los Angeles, and San Diego had to delay trials because too few people responded to jury duty summonses. Across the state, the non-response rates are much higher now than they were before the pandemic.

San Francisco’s Superior Court gives potential jurors the option to report online or in person is experiencing an online trend. Just in July, in one case, out of 135 jurors instructed to report, 127 reported remotely and 8 people reported in person to the courthouse. Of the 8 people who showed up to court, half of them were dismissed, leaving just 4 in person prospective jurors for the trial.

A television station in San Diego recently reported that a criminal case had to be postponed last month because too few people showed up for jury duty. Officials twice summoned 900 people, but only about 40 people showed up each time, KGTV reported.

“What the real question boils down to are people willing to show up to that court and sit in a jury trial?” said Bill Raftery, a senior analyst with the National Center for State Courts. “Many courts have been responsive to jurors who have said that they’re not comfortable with coming to court and doing jury duty and therefore offering deferrals simply because of concerns over COVID.”

These shortages of jurors have created delays in criminal trials that infringes on the constitutional rights of many. The law says that individuals facing criminal charges are presumed innocent. For some defendants who have not been convicted and are awaiting their day in court, can’t make bail or are being held without bail, it is more time behind bars as a pretrial detainee.

What can you do if you receive a jury summons? Do not ignore it. You are needed. “Justice has not shut down. Justice has slowed down,” said Deborah Chang, president of the Consumer Attorneys of California.

There is currently a big impact on civil proceedings. Victims of personal injury are often disabled and maybe out of work because of some tragic incident and cannot wait months or years for a trial date or settlement. “It is devastating on the clients and the family who are desperate,” according to Chang. The side effects of these delays are devastating to victims who are in the weakest health. They may be clinging to life due to an injury in an accident, or perhaps a workplace exposure to a harmful substance. “It is so devastating to lose a plaintiff before they reach the trial date because they die. Sometimes the claim dies with them,” said Chang.

The system cannot function without you. Jury trials provide an opportunity for citizens to participate in the process of governing. Serving on a jury is the most direct and impactful way for citizens to connect to the constitution. Citizens can help perpetuate our system of laws and stabilize our democracy.

Jurors perform a vital role in the American system of justice. The protection of our rights and liberties is largely achieved through the teamwork of judge and jury who, working together in a common effort, put into practice the principles of our legal system. In both civil and criminal cases, it is the jury’s duty to decide the facts in accordance with the principles of law and guided by the assigned judge. The decision is made on the evidence introduced, and the jury’s decision on the facts is usually final.

Juries provide the perspective of the citizen to our developing body of law. Exercise your constitutional right to participate in a process that is a cornerstone of American democracy: the jury trial!

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The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly available federal, state and local health organization guidance and government mandates.

Written by Christopher B. Dolan and Kimberly Levy

This week’s question comes from Matty G. in San Francisco: I got my recall ballot in the mail today. It is a little confusing. To start with, it’s asking me two questions. Do I answer the second question even if I vote “no” on the recall? Also, there are more than 40 candidates. Is there a minimum percentage of votes that the winner would need if Newsom were recalled? How did we end up here?

Thank you for your important questions, Matty.

Recall Vote Background:

On September 14, 2021, California voters will decide whether Governor Gavin Newsom should be recalled (removed) from office, and if he is removed, who should replace him. Forty-six candidates, including nine Democrats and 24 Republicans are vying to replace Governor Newsom.

Orrin Heatlie, a retired Patrol Sergeant, is the man behind this, and multiple previous recall campaigns, against Newsom. According to his twitter page, he began his efforts to remove Newsom from office in August 2019, months before Coronavirus hit. The efforts didn’t really pick up steam until Newsom’s French Laundry dinner—a year and some months later. As the story goes, Newsom attended a dinner party with a dozen friends at a luxurious restaurant in the wine country. It didn’t help that this party was a few weeks before he announced sweeping stay-at-home orders in mid-November 2020.

This perceived hypocrisy was used to anger voters. How dare Newsom prohibit others from doing that he himself did not refrain from doing? It didn’t matter if Newsom and his dinner guests were seated outside and complied with state guidelines at the time.

Recall supporters used this momentum against Newsom to gather sufficient signatures necessary to trigger the recall election.

Logistics of the Recall Election: Understanding the ballot

The recall ballot asks two questions:

Shall GAVIN NEWSOM be recalled (removed) from the office of Governor?
If GAVIN NEWSOM is recalled from office, who shall replace him?

Voters are not required to vote on both questions. Instead, a voter may vote on either one or both parts of the recall ballot.

It is important to note that a voter may vote “no” to the question of recalling Governor Newsom from office and also select a replacement candidate.

If one-half or more of the votes on the recall question are “no,” Governor Newsom will remain in office. If a majority of the votes are in favor of recalling Governor Newsom, he will be removed and replaced with the candidate that received the most votes, even if proportionally, that candidate received a smaller percentage of the vote than those who voted for Newsom to remain in office. For example, 49.9% of California voters could vote to keep Newsom in office (essentially a “Newsom for Governor” vote), but he would be removed as he did not earn a majority; he could then be replaced with a candidate earning only slightly more than 3% of the California popular vote.

After the Election

If a majority of voters vote “yes” on the recall, Governor Newsom will be removed from office. After the election, county elections officials have 30 days to complete the official canvass. The election would be certified on the 38th day following the election. The new governor would take the oath of office for the remainder of Newsom’s term, though January 2, 2023.

If half of voters vote “no” on the recall, California will carry on with Newsom as Governor.

If Governor Newsom is Recalled, His Successor May Be Elected with Slightly More Than 3% of the Vote. Is this unconstitutional?:

As has been mentioned, although the recall effort must win more than 50% of the vote to succeed, the successor candidate simply needs to do better than all of the other 45 candidates. Newsom may be removed despite 49% of Californians desiring him to stay. His replacement may be elected with as little as 3% of the vote. This implies that 95-97% of voting Californians disapprove of the candidate selected under this scenario and applies unequal weight to votes.

This inequality could be resolved by simply allowing voters to vote for Newsom to replace himself should the recall vote succeed. Currently, this solution is prohibited by California Elections Code. However, a lawsuit seeking to stop the recall election or to add Governor Newsom’s name to the ballot as his own replacement has been filed in Federal Court. The suit argues that the election, as is, violates the equal protection clause of the Constitution because it allows a sitting governor to be unseated by a candidate who received fewer votes.

Preserving and Restoring Voting Rights Must Become a Priority:

No matter the outcome of this lawsuit and the recall election, US citizens must recognize the importance of preserving the rights of all voters, regardless of political affiliation. Since 2011, 22 laws passed in 14 states that restrict voting. Within the last year, more than 389 bills introduced have been 48 states that include broad restrictions, and nothing is being done to counteract these laws and ensure access of all eligible voters. Although laws can restrict voting and at times make ballots confusing change starts with awareness, research and action. Make your voice count and vote.

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

Written By Christopher B. Dolan and Katelyn P. Dembowski

Gina from San Francisco asks: What is going to happen now that Congress failed to extend the eviction moratorium? What is California doing to protect tenants during this time?

Dear Gina: These are really pressing questions. On September 4, 2020, the Centers for Disease Control and Prevention imposed a nationwide temporary federal moratorium on residential evictions for the nonpayment of rent. Legislatures in California had done this on a state level a few days prior, protecting California residents from eviction during the COVID-19 pandemic. The CDC federal eviction moratorium was set to expire on July 31, 2021. Congress failed to extend it, leaving millions of Americans vulnerable to evictions starting as early as August 1.

Ultimately, House Democrats did not have the votes they needed to extend the moratorium, and Congress adjourned for a seven-week recess (they are expected to be back September 20). The Biden administration is unable to extend the moratorium through executive action, citing a recent court ruling for their lack of power. The Supreme Court held, in a case by landlords against the federal government, that the CDC’s eviction moratorium was beyond their scope of authority as a federal agency. Unfortunately, the end of the eviction moratorium will leave roughly 3.6 million people in the U.S. on the brink of eviction in the next two months, according to the U.S. Census Bureau’s Household Pulse Survey.

On June 28, 2021, California Governor Gavin Newsom signed AB 832 to extend the state’s eviction moratorium through September 30, 2021. This is the third, and likely final, time he has extended the eviction moratorium in California.

In addition to extending the moratorium, the legislation cleared rent debt for low-income Californians who have suffered hardships during the pandemic. AB 832 will also cover 100% of past-due and prospective rent payments, as well as utility bills, for income-qualified tenants from April 2020 through September 2021.

Here’s how to protect yourself as the eviction moratorium comes to an end:

If your landlord gives you a notice to “pay or quit,” you cannot be evicted if you return a Declaration of COVID-19 Related Financial Distress. You must return the declaration to your landlord within 15 business days of receiving the notice to “pay or quit.” If you do not provide the signed declaration within 15 business days, an eviction proceeding may be filed against you. If you are unable to provide the declaration to your landlord within 15 business days, you may still submit the declaration to the court, provided you have “good reasons” for not providing it within the 15 days. This includes, but is not limited to, mistakes, inadvertence, surprise, or excusable neglect under the California Code of Civil Procedure.
Under AB 832, to be eligible for cleared rent debt, tenants must earn 80% or less of the area median income, which varies for each county within the state. To put that into perspective, San Francisco’s median income in 2019 was $96,265. You would need to earn $77,012 or less to qualify for the additional assistance through AB 832.
If you make more than the median income and are ineligible for rent debt clearance, you are still protected from eviction if you pay at least 25% of what you owe your landlord by September 30, 2021.
If your household income is more than 130% of the median household income in your county or more than $100,000, your landlord may demand proof of your COVID-19 related hardships be provided to support your declaration. This could be satisfied by tax returns, pay stubs, statements from your employer, etc.
Until October 1, 2021, a landlord can only evict a tenant if they provide a legally valid reason. For example, you may still be evicted during the moratorium if you break your lease agreement, do something illegal on the property, or the landlord must do necessary renovations. The moratorium is only for past-due rent payments.

The extension of the eviction moratorium in California should give tenants some breathing room as the pandemic goes on. The surge in the COVID-19 Delta variant could potentially be as bad as when the pandemic started. While these are the guidelines in place right now, changes are happening every week, day, and hour, as we have seen throughout the pandemic. Stay safe and keep informed as we continue to navigate this pandemic together.

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Written By: Christopher Dolan and Megan Irish

Alejandro C. from Sunset writes: A good friend of mine’s wife got into a really bad car crash, where she broke her leg and got a concussion. The accident was not her fault, she was hit by a drunk driver who ran a red light. It has been almost two years, and she is still not back to normal. She walks with a limp, and she is forgetful and cranky with him and their children. My friend also told me he and his wife have only been intimate a handful of times since the cast was taken off her leg. He is at his wits end and I do not know what to tell him, nor how to be supportive of him through all this. Do you have any advice?

Dear Alejandro: I’m so sorry your friend’s family is going through these horrible injuries, but it is wonderful that you are there for him and want to be as supportive as possible. First, your friend’s spouse, we can call her Jane, has a claim for her personal injuries. She can, within two years, make a claim for her medical bills and lost wages in addition to her pain and suffering against the driver who hit her. Now your friend, we can call him John, has a claim for his loss of consortium against the driver who hurt his spouse. The California Civil Code allows John to make a claim, assuming:

his marriage was valid and lawful at the time of Jane’s injuries,
his spouse suffered a tortious injury,
he suffered a loss of consortium, and
his loss was proximately caused by the tort defendant’s act. John’s loss of consortium claim will be valued based on his loss of his spouse’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support; as well as the loss of the enjoyment of sexual relations and/or the ability to have children.
(In this context “loss” can also mean a change to, or diminished amount of the attributes listed above)

John’s claim would be for both the past loss of these elements in his relationship with his spouse, as well as what he is reasonably certain to suffer in the future. Because of the changes you have mentioned in their relationship, a loss of consortium claim appears reasonable for John to make. In deciding to make this type of claim they would both have to evaluate the loss and make a joint decision if they want to discuss the changes in their relationship with attorneys and potentially a jury. It can be very private and sometimes, despite the validity of the claim, couples elect not to proceed with it. Alternative forces that change the relationship and/or pre-existing issues, if any, would need to be openly discussed with counsel to make a more complete recommendation in proceeding with a loss of consortium claim before any litigation is commenced. It is also important to note, that despite the similarities of the companionship, care, comfort, society etcetera in the relationship between parents and children, a loss of consortium claim is only available to married spouses. Jane and John’s children would not be able to make a claim for the changes in their relationship with their mother because of her injuries.

Now, separate and apart from the legal claims Jane and John may elect to bring, there are many additional resources you can help your friend locate. Throughout the state, and nationally there are numerous support groups for both traumatic brain injury patients and their families. First, your friend can check with his health insurance coverage. The insurance provider’s website may direct him to support groups, literature, or individualized help. John can also look to the county level, as most counties have resources for injured persons. To demonstrate the breadth of options, San Francisco General Hospital as well as many private local hospitals run a Traumatic Brain Injury support group that meets weekly/monthly. The Brain Injury Association of California educates and provide many resources for survivors, caretakers, family, friends and others. As well, the National Alliance of Mental Illness has many resources for brain injury survivors and their families. Many of these resources are available now, despite the pandemic, through video conferencing.

Your friend should evaluate the options and figure out with his spouse, which if any of these groups, organizations and resources may aid them, as this decision is an individual one to be made by your friend and his spouse based on their families’ needs.

As a friend it is wonderful you are there to support him, listen and help when he needs it. We are very sorry for the loss your friend’s family is enduring, and wish him the best in locating resources that will help his family forge their way forward.

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By Mari Bandoma Callado, Dolan Law Firm Senior Associate Attorney and Director, Diversity, Equity and Inclusion.

Black Women’s Equal Pay Day is August 3 because it takes an additional 214 days for Black women to catch up to what white, non-Hispanic men made in 12 months.

Black women are typically paid only 63 cents for every dollar paid to white men. The pay discrimination can follow someone from job to job and actually compounds over time. According to the National Women’s Law Center, the wage gap adds up to a typical loss of $24,110 a year and nearly $1 million over a 40-year career.

In California, several laws and regulations attempt to bridge the pay gap such as California Equal Pay Act (Labor Code section 1197.5) which prohibits an employer from paying its employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially-similar work.In addition, employers are prohibited from using prior salary to justify any sex-, race-, or ethnicity-based pay difference. Additionally, Labor Code Section 432.3, prohibits employers from asking job applicants about their salary history information, including compensation and benefits.

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

Written by Christopher B. Dolan and Mari Bandoma Callado

This week’s question comes from Geraldine W. in San Leandro:

My employer informed us that we will be returning to the office three times a week beginning in August. I am fully vaccinated against COVID-19 but I am worried about safely returning to work because I believe some of my co-workers are not vaccinated. What measures are required for employers to re-open safely and reduce the risk of COVID-19 infections at work? Now that California lifted the mask mandate, can employers require masks indoors? Are we still required to maintain physical distance? Can employers require employees to get a COVID-19 vaccine? Is there anything I can do if my employer does not appear to be doing what they are supposed to do to protect workers from getting COVID-19?

Dear Geraldine: Thank you for asking several important questions. Cal/OSHA and other state agencies have developed guidance on the steps employers should take to reduce the risk of COVID-19 at work. Employees have a right to a safe and healthy workplace. Employers must establish, implement and maintain an effective COVID-19 Prevention Program, provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under the law, and exclude employees who have COVID-19 symptoms and/or not fully vaccinated.

Unless they are covered by the Cal/OSHA Aerosol Transmittable Diseases standard, employers must comply with the COVID-19 Prevention Emergency Temporary Standards (ETS) which were revised on June 17, 2021. These revised standards set forth requirements for employers relating to training, testing, face coverings, exclusion of employees with COVID-19 and those who had close contact with them, and more.

MASKS AND PHYSICAL DISTANCING REQUIREMENTS IN THE WORKPLACE

Key amendments to the Cal/OSHA ETS on June 17, 2021 with regards to masks and physical distancing requirements include:

	Fully Vaccinated Employees	Unvaccinated Employees
Face Coverings Indoors (including in vehicles)	Not required except for certain situations during outbreaks and in settings where CDPH requires all persons to wear them. However, employees are explicitly allowed to wear a face covering without fear of retaliation from employers. Note: Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.	Required.
Face Coverings Outdoors	Not required.	Not required.
Physical Distancing	Not required except where an employer determines there is a hazard and for certain employees during major outbreaks.	Not required except where an employer determines there is a hazard and for certain employees during major outbreaks.
Access to Respirators		May request N95 respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.
Testing Requirements	Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.	Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.

Note that there are Cal/OSHA industry-specific mandates and local orders that may have different requirements. Also, employers can have policies that are stricter than those required by the Cal/OSHA, but accommodation must be made for those:

Who cannot wear face coverings due to a medical or mental health condition or disability;
Who are hearing-impaired or communicating with a hearing-impaired person; and
When an employee performs specific tasks which cannot be performed with a face covering.

VACCINATIONS

Under the California Fair and Employment Housing Act, employers may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as employers do not discriminate against or harass employees on the basis of a protected characteristic, provide reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and do not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

EMPLOYERS’ DUTY TO MAINTAIN A SAFE AND HEALTHY WORKPLACE

If you believe that your employer is not doing what they are supposed to do to protect workers from getting COVID-19, you may communicate with your employer using the pre-designated channels of communication that they are required to have in place for employees with regards to matters of workplace safety and health. You may also file a confidential complaint with the nearest Cal/OSHA district office. Whether you choose to raise your concerns directly to your employer or by filing a complaint with Cal/OSHA, the law prohibits your employer from discriminating or retaliating against you for complaining about safety or health concerns in the workplace.

Written By Christopher Dolan and Allison Stone

Angie from Walnut Creek writes: Can I stop wearing my mask now that I am fully vaccinated? When I go out, I see some people wearing a mask and others without. What’s the right call on this?

As of May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that fully vaccinated people no longer need to wear masks and do not have to social distance in both outdoor and indoor settings. On Tuesday, June 15, 2021, California lifted its mask mandate. This is, of course, a huge milestone for Californians. However, do not throw out your masks just yet. It is important to understand what this really means. There are still situations where individuals, even those who are fully vaccinated, are required to wear masks.

In California, even if fully vaccinated, all people aged two and over must wear masks in schools, health care and long-term care facilities, prisons, homeless and emergency shelters, and on public transit. Even fully vaccinated individuals are required to wear masks in settings like hospitals and care facilities such as assisted living and nursing homes. As for schools and childcare settings, people including teachers and students who are fully vaccinated must still wear masks when they are indoors, but they do not have to while outdoors. This may change as updated K-12 schools’ guidance is forthcoming from the CDC. Additionally, even if fully vaccinated, immune-compromised individuals should speak to their doctors before getting rid of their masks. You are considered fully vaccinated if you are at least two weeks beyond the second dose of the Pfizer or Moderna vaccine or the single dose of the Johnson & Johnson vaccine.

In California, masks are still required for unvaccinated individuals in indoor public settings, which includes but is not limited to stores, markets, movie theaters, retail shops, meetings, restaurants, salons, government offices serving the public, and any other indoor business. According to the CDC, unvaccinated individuals should continue to wear masks and social distance as they remain at risk of illness, death and spreading COVID-19 to others.

Moreover, regardless of vaccination status, many businesses and private entities are continuing to require masks. Businesses have the right to create and enforce their own mask policies and require customers to wear masks. Indeed, private businesses have property rights including the right to require patrons entering their business to wear a mask. Businesses and hosts may allow vaccinated individuals to self-attest that they are fully vaccinated or meet an approved masking exemption prior to entry, they may implement vaccine verification to determine whether individuals are required to wear a mask, or they may require all customers to wear masks. If you as a customer, decline to wear a mask and are asked to leave a business and refuse, you may be committing criminal trespass. Similarly, a business can choose to limit capacity to enforce social distancing. Some businesses may operate with guidelines using the honor code, meaning no mask is required if you are fully vaccinated but unvaccinated people still need to wear masks. Because there is no way for a business to know who has been vaccinated, you, as a customer, may choose to wear a mask in these situations. No one can be prevented from wearing a mask as a condition of entry into a business.

Likewise, large scale events such as sporting events, concerts, music festivals, shows, marathons, conventions, work or professional conferences or expos, etc. will all have different requirements concerning masks. Many events will require proof or verification of full vaccination status prior to entry and/or negative COVID-19 test results for attendees prior to entry. Some events will allow individuals to attend even without vaccinations and without a negative COVID-19 test, so long as you are wearing a mask. Be sure to check the rules for the specific event you plan to attend because the rules will differ.

Next, all travelers, including fully vaccinated people, are required to wear face masks on airplanes and at airports, and U.S. airline companies will enforce the requirement on flights. This is a Federal rule. It is important to take these rules seriously. The Federal Aviation Administration in January implemented a “zero tolerance” policy for travelers and fines can go up to $35,000 for unruly and/or disruptive passengers who refuse to wear a mask.

Further, it is not just air travel that is affected by the Federal mandate. Per the Transportation Security Administration (TSA), the Federal rule requiring all air, rail, bus and other travelers on public transportation over the age of two to wear a mask is still in effect. Other examples of transportation where masks are required include ships, ferries, subways, taxis, and ride-shares. Masks are required in transportation hubs, including but not limited to bus stations, rail stations, airports, seaports, marinas, subway stations, bus stations and any other areas that provide transportation. Of course, this includes inside BART stations and onboard trains. According to BART, all stations have free masks available, see the Station Agent if you need one. According to current CDC guidance, persons in outdoor areas of transit stations are encouraged, but not required, to wear a mask. You are required to wear a mask on your next trip via public transport, regardless of whether you are fully vaccinated or not. This Federal policy is currently set to be in effect through September 13, 2021.

If you are planning on traveling outside of California, be sure to check to see where the state you are traveling to stands on mask use. Some states now require masks only for unvaccinated people, other states require masks in certain instances like California (i.e. when in schools, nursing homes or riding public transportation), and other states have no mask requirement whatsoever.

Finally, despite California lifting its mask mandate, as the delta variant is becoming the dominant strain of the COVID-19 virus, the World Health Organization announced that even fully vaccinated people should wear masks and social distance when around others. So, for these reasons, keep your mask, at least for now.

Written By Christopher Dolan and Aimee Kirby

Adriana from the Bay Area writes: On May 25, 2020 we brought our small dog Piper to a dog park. We have visited this park a number of times and never had an issue. The dog park has a section for large dogs and also a separate section for smaller dogs, to keep everyone safe. While my husband and I were in the small dog park an elderly woman entered the small dog area with what looked like a Sheppard mix that was about fifty pounds and a Chihuahua. Immediately having the big dog in the small dog park concerned me. My husband and I decided to leave. As we were putting on Piper’s leash, the Sheppard mix suddenly darted towards Piper and grabbed her neck. In a matter of seconds, blood was everywhere and my husband and I were desperately trying to get Piper out of the dog’s mouth. The owner of the dog just stood there screaming and crying. The dog ended up biting both of us as we tried to rescue Piper. Before we left my husband took a picture of her car insurance card, and she told us she had homeowner’s insurance with the same company. We rushed Piper to her vet, but her injuries were so significant and she was in so much pain, the doctor advised us to put her down. We are both very upset and don’t know what can be done to hold this dog owner responsible.

Dear Adriana, I am so sorry to hear what occurred to poor Piper. Our dogs are like members of our family and seeing them in pain is hard for us. The law hasn’t really caught up to how we, in our hearts, feel about our animals. Our little furry family members are still considered property under the law, and the food, training, and hours of love that we put into making them happy are not something the law recognizes as damages in California. Neither is the immense joy and love that they provide to us. Insurance companies will reimburse you the cost of repair or replacement of your property. It is immensely sad that the law does not recognize that we see our pets different than our cars.

Under Negligence and Strict Liability legal theories, you may have a potential claim for any physical injuries you and your husband suffered by the dog attack on this day. California law defines negligence as the failure to use reasonable care to prevent harm to oneself or to others. A person is negligent if he or she fails to do something that a reasonably careful person would do in the same situation. In California, you aren’t required to prove that someone acted unreasonable to seek your damages, as we have a Strict Liability regarding dog bites. Strict Liability imposes liability by the act itself and you don’t have to prove the owner acted unreasonable to seek this damage. In addition to being able to seek your veterinarian bill, money, when you are ready welcome another dog into your life, and your own medical expenses and pain and suffering, you also have a claim for what is called Negligent Infliction of Emotional Distress. Negligent Infliction of Emotional Distress allows you to collect damages for witnessing your husband getting bitten and damages for him for watching you get bitten. We often refer to this claim as a bystander damage claim.

You were very wise to get a picture of her insurance card. If you do a web search for the carrier, often times, you can submit your claim online through a portal on their webpage. They will want the veterinarian bill, pictures of your injuries and any medical bills/medical records that document your losses. If you missed any work, they will want to see a paystub to determine your rate of pay and a medical provider note verifying you needed the time off work. Sometimes the carrier will ask for your statement or for you to sign authorizations to get your medical records. You are not required to give a statement and you are not required to sign authorizations. Once the carrier has this information, they will make you an offer based on the damages presented. Remember you are not required to accept their first offer, and can negotiate with them. Once a final number is agreed upon a release will be sent. Once the release is signed, the insurance company will forward the settlement proceeds.

When a case resolves, meaning you have signed a release and received the settlement, that will be the total amount of money your will receive. You cannot come back and seek additional sums for injuries that get unmasked later as you begin moving farther away from this loss. It is very important you know the full nature and extent of your injuries.

We are very sorry for the loss your family has suffered and give you strength in this difficult time.

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Written By Christopher B. Dolan and Vanessa C. Deniston

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