I Was Laid-off because of COVID-19

By Christopher Dolan and Mari Bandoma Callado

“I was laid off, along with my whole crew, when COVID-19 first hit. I worked for a company that provided janitorial and building maintenance to a commercial building. Now, my company is hiring again. Can I reapply to my old job, or are they supposed to notify me if I can come back? I have only found spotty employment, in the meantime, I would really like to go back to my old job.” – Ray B. from Concord.

Thank you for this excellent question, Ray. We are sorry you were one of the many people laid off from your position because of COVID-19.

As COVID-19 restrictions are generally being lifted, many businesses have opened back up and, thankfully, rehiring many of the people who had been placed out of work during the shutdown. Before the pandemic, California businesses without a collective bargaining agreement were generally unrestricted in their discretion to pick and choose which, if any, employees would be recalled to work following a layoff. However, during the pandemic, many cities adopted “right to recall” ordinances that restricted employer hiring discretion after a layoff.

Last April, California followed suit by enacting Senate Bill 93, which created Labor Code Section 2810.08 which requires employers in certain industries (see covered employers below) to make written offers to employees laid off because of a reason related to the COVID-19 pandemic (e.g. public health directive, government shut down order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic). This law does not expire until December 31, 2024.

Covered Employers

Covered employers generally include:

hotels with 50 or more guest rooms;
private clubs that operate a building or complex of buildings containing at least 50 guest rooms;
publicly or privately-owned event centers of more than 50,000 square feet or 1,000 seats used for public performances, sporting events, business meetings, or similar events;
airport hospitality operations that provide services related to the preparation of food or beverages for aircraft crew passengers, and to the public at an airport;
airport service providers that provide services directly related to the air transportation of persons, property or mail; and
employers that provide janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings.

Covered Employees

To be protected by Labor Code Section 2810.8, an employee must have worked at least two hours per week by the covered employer, been employed by a covered employer for at least six months in the twelve months preceding January 1, 2020 and be separated from active service due to a reason related to the COVID-19 pandemic. Any employer of a covered enterprise must comply with the recall provisions regardless of the number of its employees.

Employers’ Obligations to Covered Laid-Off Employees

Within five business days of establishing a position, a covered employer must offer its laid-off employees all job positions that become available for which the laid-off employees are qualified in writing.
A laid-off employee is “qualified” for a position if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer.
A laid-off employee who is offered a position has to be provided at least five business days from the date of receipt to either accept or decline the offer. We recommend responding in writing as soon as possible and keep a written copy of your acceptance. If your contact information has changed, please make sure to update your former employer with all current contact information to facilitate the employer contacting you and avoid missing a recall opportunity.
Simultaneous, conditional offers of employment may be made by the employer to more than one laid-off employee, with the final determination of which laid-off employee gets the position determined by seniority. Seniority is based on total length of service with the employer, not on the basis of job seniority.
In the event that an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer is required to provide the laid-off employee with written notice within 30 days. The notice must specify the length of service with the employer of those hired in lieu of that recall and all reasons for the decision.
Labor Code Section 2810.8 also contains anti-retaliation provisions and requires employers to keep records for three years. The records must include the laid off employee’s full legal name, job classification at time of layoff, date of hire, last known residence, email address, and phone number, as well as lay off notices and all communications regarding employment offers made under Labor Code section 2810.8’s requirements.

Enforcement and Remedies

The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over the enforcement of Labor Code Section 2810.8. While there is no private right of action, laid-off employees may file a complaint for a violation of Labor Code Section 2810.8 with the DLSE, and the DLSE may bring a civil action in court.

Remedies for violations include reinstatement, back pay, benefits, and interest on all amounts due and unpaid, Civil penalties may also be imposed, including $100 for each employee whose rights are violated, and liquidated damages of $500 per employee, for each day an employee’s rights have been violated.

If you believe that your recall rights were violated, you may report the violation to the DLSE for investigation.

City and County Ordinances

Cities and Counties may enact greater protections through local ordinances. Labor Code Section 2810.8 does not preempt right-to-recall ordinances adopted by multiple cities throughout California. Some of the cities and counties which have enacted such ordinances include Carlsbad, Glendale, Los Angeles County, Los Angeles City, Long Beach, Monterey County, Oakland, Pasadena, San Francisco, Santa Clara, San Diego, and Santa Monica.

If you believe that your employer used COVID-19 as a cover for discriminatory lay-offs during the pandemic, and/or if you have questions about whether Labor Code Section 2810.8 applies to you, please contact an employment attorney and/or the DLSE.

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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, Steven Balogh and Nancy Villatoro

This week’s question comes from Fred in Oakland: Every year, it seems laws get changed or updated. Can you share some laws that your firm may be looking out for in 2022?

Thanks for your question, Fred. During the first of the year the California legislature and Governor enact numerous bills that affect the courts or are of interest to the judicial branch. This year is no exception and the same thing happened in 2022. This is not a complete summary of all the laws, but here are some laws that we believe are worth mentioning as they relate to personal injury and employment law:

AB 855 Judicial Holidays

Native American Day (4th Friday in September: 9/23/22) replaces Columbus Day.

SB 241 More Efficient Courts

Remote appearances are extended until 2023. The general rule that other case deadlines are also extended for the same length of time as a continuance or postponement now also applies to arbitration. Courts are required to hear minor’s compromise petitions within 30 days of filing and, if the petition is uncontested, to issue a decision upon the hearing’s conclusion.

SB 447 Pain & Suffering in Survival Actions

Updates CCP 377.34 puts a deceased person’s non-economic damages back on the table for their survivors. Applies to all causes filed starting this year through to the end of 2026. Learn more here.

SB 331 Silenced No More Act

The prohibition on NDAs in settlement agreements has been expanded from just those involving sexual harassment, assault, and discrimination to cover settlement agreements for all forms of harassment or discrimination. SB 331 also expands the prohibition on overly broad confidentiality and non-disparagement clauses to include workers who have to sign one as part of a severance agreement. This only applies to agreements made after 1/1/22.

SB 93 Rehiring and Retention

Employers are required to essentially give laid-off workers right of first refusal for their old jobs. Requires an employer to keep records of these offers for three years.

AB 1033 Expanding the California Family Rights Act

Employers with at least 5 employees must provide employees up to 12 weeks of job-protected leave from work, on an annual basis, to care for a parent-in-law with a serious medical condition.

AB 849 Undoing Jarman v. HCR Manorcare (2020) 10 Cal.5th 375

Caps violations of regulatory resident rights (at skilled nursing and intermediate care facilities) at $500 per violation. The new caps apply to violations occurring after March 1, 2021.

AB 654 Covid-19 Exposure Employer Notification Requirement

Employers must provide local public health agencies with notice within 48 hours or a business day, whichever is later, upon learning of a potential exposure event. The Employer is also required to notify the employees, customers, and anyone else on site who may have been exposed. Only applies through to the end of 2022.

AB 701 Warehouse Workers Quota and pace-of-work standards Disclosures

Requires disclosure of quotas and workers cannot be fired or retaliated against for falling to meet an unsafe quota. The bill focuses on the relationship between quotas and incidence of workplace injury.

SB 762 Arbitration Invoice Payment Requirements

Amends Code of Civil Procedure §§ 1281.97 and 1281.98 to change the default rule to all arbitrator invoices are due upon receipt, unless the parties’ arbitration agreement sets a number of days. Extensions for invoice payments must be agreed upon by all parties to the arbitration.

SB 974

Minors on horses on highways must wear approved helmets.

SB 286 Delivery App Tips

Tips for delivery cannot be retained by the apps but go to the delivery driver. Tips for pickup still go to the restaurant.

SB 389 Alcohol to go

Restaurants can sell alcohol to go through to the end of 2026.

AB 177 Judicial Evaluation of Remote Proceedings

The judicial counsel is to collect data on how many and how well remote proceedings are doing and present this information to the Legislature and governor by January 2023. This law also requires the Judicial Council to come up with guidelines on how to administer remote proceedings in the same timeframe.

For more information on CA Bills take a look at the links below:

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Cindy W. from Oakland: I am immune compromised and have a number of related health conditions that make me much more susceptible to serious and life-threatening symptoms if I contract COVID-19. Even the less severe strains could send me to the hospital and threaten me. I have a good job and want to keep it, but I am concerned that I will be exposed. Is there anything I can do to make sure I can continue working, but that I remain safe? – Cindy W.

Thank you for your question, Cindy.

Fortunately, there are protections that may be available to you and the many others who are immunocompromised, or otherwise highly susceptible to severe reactions to COVID-19.

For individuals with a disability, an employer has an obligation to provide reasonable accommodations that would allow that person to perform the essential functions of the position. These protections come Federally pursuant to the ADA (Americans with Disabilities Act) and in California from the FEHA (Fair Employment and Housing Act). There are some differences in the laws, but the ADA acts as a floor, or minimum protections, and where the FEHA has more protection available, that will control.

For an employer to be required to make accommodations, a worker must notify the employer of the fact that they have a disability and that they require accommodations. To be what the law refers to as a “qualified person with a disability,” one must have the skills and experience required for the position and have a physical or mental impairment that limits a “major life function.” Being seriously immunocompromised, as you are, is likely to meet that standard.

Once an employer is aware of the disability and a need for accommodations, both the worker and the employer must engage in a good faith interactive process to find suitable accommodations. It is important to understand that an employer is not obligated to provide the worker’s preferred accommodation. It must, however, provide an accommodation which will allow the worker to perform the essential functions of the position. Keep in mind, no employer is required to offer an accommodation which creates an “undue hardship.” An undue hardship is an action requiring “significant difficulty or expense.” Each potential accommodation is very fact specific, but to determine if it is an undue hardship, courts have looked to many factors including the nature and cost of the accommodation, the financial resources and structure of an employer, as well as the type of operations of the employer and its facilities.

In the context of those who are ill, or afraid to come to work because exposure to the virus may create severe health issues, there are a number of potential accommodations worth exploring, depending on the type of work a person performs. Historically, it did not used to be reasonable for a worker to request an accommodation to work from home. Previously, it was often considered to be an “undue hardship.” However, over the last two years, for many job functions, it has become the norm for many positions. Obviously, for many positions, such as labor, customer service, and similar positions, this is not feasible. However, for many office workers, it may now be a “reasonable accommodation.”

For others, another option in an office. An office may be requested, for protection, as an accommodation to work from rather than an open-air cubicle where foot traffic is high.

For more hands-on positions, it may be possible to work later in the day, or at night, where there are not so many people in the workplace presenting a danger to COVID transmission.

If the job can be done remotely for the most part, but the position requires some in-office time, such as filing paperwork, it may be a reasonable accommodation to work part-time from home and part time in the office, thus reducing the exposure.

Importantly, there is no set list of accommodations. The law requires the interactive process for the worker and employer to come to a set of accommodations which allow the worker to perform the position without causing an undue hardship on the employer. Whether an accommodation is reasonable can truly only be understood on a case-by-case basis.

No employer can legally retaliate against a worker for requesting accommodations. The request counts as a “protected activity” such that, if an employer were to retaliate against the person requesting, they could be liable and made to pay damages in a civil lawsuit.

Cindy, I hope this article helps you get the accommodations you deserve.

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from Jordan from Emeryville: As people have started to get out more, I keep hearing about pedestrians being struck by cars. I know this is nothing new but seems to be coming up a lot more lately. Do you know what the trend is, I hope I am just paranoid, and whether or not anyone is doing anything to address the issue, if there is one?

With the holiday season upon us, and despite the cold weather, people are out shopping and just being out more. With the current status of COVID-19, ridership on public transportation is still down, so those without vehicles, have taken to walking. But unfortunately, you are correct, though not a new problem, accidents involving pedestrians are on the rise. Earlier this year, the Governors Highway Safety Association (GHSA) projected that 2020 had the largest ever annual increase in the rate at which drivers struck and killed pedestrians, and they were correct.

According to the GHSA the likely culprits are speeding, drunk driving, drugged driving, and distraction, which were rampant on U.S. roads during the COVID-19 pandemic. In addition, the March GHSA report also examined the 2019 FARS data to provide insights on trends regarding these issues. Some of the findings include the following:

Pedestrians accounted for 17% of all traffic deaths in 2019, compared to 13% in 2010. While pedestrian deaths have risen by 46% over the past decade, the number of all other traffic deaths has increased by only 5%
Drivers struck and killed a larger proportion of pedestrians that were minorities, including Black, Indigenous and People of Color, than expected based on the population. On the other hand, white/non-Hispanic pedestrians accounted for a considerably smaller proportion based on population
Most pedestrians are killed on local roads, in the dark and away from intersections. During the past 10 years, the number of pedestrians struck and killed after dark increased by 54%, compared to a 16% rise in pedestrian fatalities in daylight
Alcohol impairment by the driver and/or pedestrian was reported in nearly half of traffic crashes that resulted in a pedestrian fatality
Although passenger cars make up the largest categories of vehicles involved in fatal pedestrian crashes, over the past decade the number of pedestrian deaths in crashes involving SUVs has increased at a faster rate – 69% – than deaths in crashes involving passenger cars, which increased by 46%.

“Last year was filled with so much death and loss as COVID swept across the country. As America gets vaccinated and returns to normal, we need to treat pedestrian safety like the public health emergency that it is,” said GHSA Executive Director Jonathan Adkins. “We must strengthen our efforts to protect those on foot from traffic violence by implementing equitable and proven countermeasures that protect people walking and address those driving behaviors that pose the greatest risk.”

However, given the wide-open roads that existed following the stay in place order, many drivers have failed to adjust to more people being out and about. “The wrecks that are occurring are at higher speeds,” said Dr. James Augustine, the medical director for emergency medical services in Atlanta, as well as a spokesman for the American College of Emergency Physicians.

To help with this issue, AB43 was introduced by State Assemblymember Laura Friedman out of Glendale, to assist cities struggling to combat pedestrian fatalities. Beginning in 2022, cities will be able to force drivers to slow down on accident-prone streets. AB43 gives cities new authority to reduce limits in increments of 5 mph by factoring the safety of pedestrians and cyclists in traffic surveys. The state’s existing standards set limits based upon certain findings determined by an engineering and traffic survey and on the speed drivers feel comfortable driving at, rather than what’s actually safe.

Unfortunately, while it should be the ultimate duty of drivers to pay attention and follow the rules of the road, pedestrians should be mindful of the hazards and follow a few basic tips:

Increase your visibility at night by carrying a flashlight when walking and wearing reflective clothing, such as reflective vests.
Cross streets at a designated crosswalk or intersection whenever possible.
Walk on a sidewalk or path instead of the road. Walk on the shoulder and facing traffic if a sidewalk or path is not available.
Avoid using electronic devices like earbuds or walking if you have been using alcohol or drugs. They can cause distractions and impair judgement and coordination.

Written By Christopher B. Dolan

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work. My husband and I had a real hard time during COVID and taking time off work right now would be difficult.

Frank, I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage. (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation. If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, were no members of the LGBTQ community to heed the call to jury service, you would not receive a jury of your peers.

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McAllister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.

Since COVID-19 began, I have tried two cases to verdict, one in September against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and spend millions of dollars annually, contributed by members such as myself who believe in this right, to help elect pro-justice, pro-civil rights and pro-7th Amendment legislators to help preserve the right to trial by jury.

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably.

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Ramon P. from East Bay who asks: I have a favorite Mexican food place, and during the pandemic I was able to get their margaritas to go. It was a great treat amidst all the chaos that was the pandemic. Is that going to continue, and if so, now that so many people are back to work and, on the road, is it safe for us to do so?

Thank for your question, Ramon. Yes, people will still be able to order alcohol to go now and for the near future. Last month Governor Newsom extended the ability of restaurants to sell ‘to go’ alcohol, with food orders, through December 31, 2026, by signing Senate Bill 389. The bill was introduced by Napa representative, Bill Dodd and is ultimately stated in section 23401.5 of the Business and Professions Code. There are several safety mechanisms built into the law as well as an automatic deadline for the law to expire.

We all recognize that restaurants were hit hard when the pandemic shutdowns took effect. Countless small businesses were forced to figure out how to go from a thriving restaurant to a ‘to-go’ spot virtually overnight. Modifications to the rules, helped restaurants who were struggling to stay open. This ability to sell ‘to go’ drinks came from the emergency orders of the Alcoholic Beverage Control (“ABC”), which is the governing body that oversees restaurant and bar’s liquor licenses. The rule change came at the end of March, 2020, just as the pandemic was settling in on Californians. As alcohol sales can make up a quarter to a third of a restaurant’s revenue, the ability to make these sales was crucial for restaurants to make it through the pandemic.

While State Bill 389 requires a food purchase in order to sell “to go” alcohol to the customer, it allows patrons to continue to take home their favorite adult beverage with their takeout meal. Here are some important points to keep in mind:
Alcohol cannot be purchased alone. The law also requires the order to be picked up by the actual customer, and not a driver from a delivery service. As well, the restaurant selling the ‘to go’ beverages is required to have a liquor license, and the beverage must be sold in a container that is sealed. A customer must store the sealed containers in the trunk of the car, or otherwise away from the passenger compartment for the drive home. There are also size limitations on the drinks that can be sold. The cocktails cannot exceed four- and one-half ounces of liquor and wine is limited to three hundred and fifty-five milliliters. As well there is a two-beverage maximum per meal purchased.

The requirement that sales are coupled with meals means smaller establishments, think your favorite dive bar, cannot sell to go beverages if they don’t have an in-house food menu. The law has restrictions, requiring a “bona-fide” meal be purchased such that prepackaged products will not meet the requirements, and the food cannot be catered in, like with a food truck. Unfortunately, the small alcohol only spots will not be able to take advantage of this law to serve its cocktails to go. The local bars will remain limited to on premises consumption only.

While all of this is under the guise of keeping restaurants going, it also brings home a lot of safety concerns just like mentioned in your question. DUIs is the first thing that comes to mind. Distracted driving is also a concern. Will people abide by the rules to leave the alcohol in the trunk until they are safely home? If the container is sealed and transported home in the trunk, there is little concern the driver of the vehicle would become intoxicated or distracted by the beverages, but what if they do not follow the rules?

California hasn’t given up all its regulations, by any means. These containers are considered “open containers” which are regulated by the Business and Professions Code, which make it an infraction to possess or consume alcohol in public. So, it is imperative that the ‘to go’ drinks stay in the trunk until the customer is safely home. That protects everyone on the road from risks associated with drinking while driving, or distractions. Additionally, the twenty-one year minimum age requirement is still in full effect, and the purchaser must be able to show ID when they pick up their order. The 2:00 am last call is also still in effect, and no one is selling drinks between the hours of 2:00 am and 6:00 am. This law, permitting the sale of ‘to go’ drinks will automatically expire on December 31, 2026. This will give Californians plenty of time to evaluate if these rule changes are helping the restaurant industry, but also importantly, to confirm if alcohol ‘to go’ is safe for Californians.

Written by Christopher B. Dolan and Mari Bandoma Callado

Sandra F. from Castro Valley writes: I work at a grocery store and contracted COVID-19 in July. I have since tested negative and have been told by my medical provider that I am outside the contagious window for spreading the virus. Unfortunately, some of my symptoms have not gone away, and have been told that I have “Long COVID”. I still have fatigue, shortness of breath, lightheadedness or dizziness when I stand, headaches, loss of taste and smell, and brain fog. My job requires me to stand and walk a lot but I am having a hard time doing that for long periods of time before feeling overly tired, having shortness of breath, or getting dizzy. I am worried that I will fall or hurt myself. I would like to ask my employer for accommodation but I am not sure how. Will I get in trouble for asking for a chair or a different position while I am recovering?

Thank you Sandra for reaching out. We are sorry to hear that you are still experiencing COVID-19 symptoms. As you mentioned, for some people, the symptoms from contracting COVID-19 do not go away and some studies indicate that 10% of COVID-19 patients may become long haulers.

Is Long COVID Classified as a Disability Under the ADA or FEHA?

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect California workers from disability discrimination in the workplace. The ADA has classified Long COVID as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”

Under the FEHA, Long COVID is also classified as a disability but the FEHA requires only that a mental and physical disability “limit” a major life activity (not a substantial limit, but a limit).

In other words, having Long COVID does not automatically mean that a person has a “disability” under the ADA or the FEHA. Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the ADA or the FEHA. It is necessary to make an individualized assessment to determine whether someone’s Long COVID condition or any of their symptoms (substantially) limits a major life activity. Major life activities include but are not limited to caring for oneself, eating, performing manual tasks, walking, standing, communicating and working. You described your symptoms as something that limits your ability to work, walking and standing. It is likely that you would be considered as a person with a disability under the ADA or the FEHA, entitling you to reasonable accommodations.

What are Reasonable Accommodations?

Both the FEHA and the ADA require most California employers to give employees with disabilities “reasonable accommodations”. Employers who are covered by the ADA or the FEHA are required to provide reasonable accommodations unless the accommodation would be too difficult for your employer to provide, or doing so would endanger the health and safety of others, or change your job in a significant way.

An accommodation is reasonable when changes are made so that the employee with a disability can perform the essential functions of the job. This can be changing job duties or work schedules, providing leave for medical care, device, or technology. Essentially, these are changes that would allow employees to do their job safely and well.

How to Request Reasonable Accommodations:

The first thing you should do is to inform your employer that you have Long COVID in writing.
Note: your employer may request medical records directly related to disability and need for accommodation to determine whether you are a person with a disability.

Once you inform your employer, they must not discriminate against you and begin engaging in a good-faith interactive process to explore potential reasonable accommodations to help you perform your job effectively and safely.

Your employer can provide many different reasonable accommodations. It is very important that you maintain communications with your employer so you can explore together the accommodations that are right for you and your job. For example, you could get access to a chair so you can sit down when you feel dizzy while performing your job or you could be temporarily reassigned to a different position or be given different tasks that would allow you to sit down more frequently. You could also request a leave of absence under the Family and Medical Leave Act or the California Family Rights Act, which would entitle you to up to twelve weeks of unpaid job-protected leave.

Retaliation is Prohibited:

Retaliation is anything that changes the terms and conditions of your employment. Examples of retaliatory conduct include but are not limited to the following:

Increased harassment or verbal abuse for opposing unlawful conduct;
Changing schedules to an undesirable shift;
Assigning undesirable job duties;
Demotion or denial of promotion;
Relocation to an undesirable location;
Reduction in hours or pay;
Change in compensation plans or programs;
Denial of training or opportunity for advancement;
Discipline such as warnings, suspension or probation for trumped-up charges; and
Termination.

An employer must not retaliate against an employee for requesting accommodations. As such, you should not “get in trouble” for requesting accommodations for your medical condition.

If you feel that you have been discriminated against because of your disability and/or medical condition, or retaliated against for standing up for your rights and/or requesting accommodations, contact the employment attorneys at the Dolan Law Firm.

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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 Aimee E. Kirby

This week’s question comes from Nancy G. from San Francisco: Recently, I moved to San Francisco for a job opportunity. Like many people here, I sold my car and now get around by either walking, biking or taking Bart to work. While walking to and from work, I noticed many used needles on the ground. I know the City of San Francisco tries their best to provide services to those in need, I am worried about the increased number of uncapped and used needles on the ground. Although my shoes are protecting my feet, in the chance that I do not see a needle and it goes through my shoe, what are my rights or the rights of other people if we get pricked by a needle on the ground?

Thank you, Nancy, for reaching out and for your question. This issue is one that San Francisco residents and the community at large have been dealing with for a while now. San Francisco is known for our amazing people, culture, food, arts, cable cars, and bridges. But San Francisco is a major city in the world, and we have many city issues to deal with. In 2018 NBC did a report and looked at 153 blocks in San Francisco. They found discarded needles in 41 blocks and human feces on 96 of the city blocks. It appears that the problem has increased due to COVID-19. The concern with uncapped needles, as you are aware, is that they can be contaminated and can be a health hazard. The city of San Francisco and city leaders are in a constant struggle to maintain clean streets and free of discarded needles. The reality is that this is a very difficult job.

Our office has handled actions against hospitals for improper storage of needles, but your question about needles on the ground in public areas, is a very good question. The cause of action for having an unsafe premise would generally be one that would arise in Negligence. Negligence as a cause of action requires that the person sued:

had a duty to do something,
breached that duty by acting unreasonably,
the Plaintiff who sued the person was injured, and
the damages are casually related to the injury. Generally, business owners must keep the regress and ingress (exit and entrance) safe to their businesses.

Therefore, if the needle is close to any of these areas, and they were aware of this situation, you would arguably establish the first two prongs of Negligence. In much of San Francisco there are also local ordinances that make the business owners responsible for maintaining the sidewalk outside their property, which help you argue what is called negligence per se.

If your inquiry is how to hold the City of San Francisco responsible, that is a little more difficult. For a case against the City of San Francisco, the standard is different. You would have to allege that the needles make the walkway a Dangerous Condition of Public Property. For this cause of action, you have to prove the walkway was dangerous when used in a reasonable manner, that the City of San Francisco had knowledge of it, had the time and money to fix the condition, and you were harmed by the condition. Assuming you prove the needles constitute a Dangerous Condition, the City of San Francisco has a strong argument that they are doing everything possible to try to combat this problem.

A problem you have with both a cause of action against the property owners adjacent to the sidewalk and the City of San Francisco, is also what harm was suffered by you stepping on the needle. This may seem strange, because of course the emotional and physical response to stepping on a uncapped needle, not knowing what is in it, is extreme. Often times when a person is pricked accidentally, the needle is tested, the person is put on antiviral prophylactics and told to wait for the results of testing. The pain and worry someone has in this situation goes way beyond the momentary prick you feel. However, the law states that you may not recover damages, unless there was a physical harm caused by the needle. In the Macy’s California, Inc. vs. Superior Court case, a Plaintiff sought emotional distress damages for the fear she suffered after being pricked by an uncapped needle hidden in a returned jacket she bought. In finding that her case could not go forward, the court said:

The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. Macy’s California, Inc. vs. Superior Court, (1995) 41.Cal.App.4th 744.

Therefore, the courts are not ready to recognize the emotional response to this case, without an actual exposure to material within the needle that causes a detrimental change to the body. Thank you for your question. I am sure many people have thought about this when they see needles on the ground. Please continue to be safe and stay alert as you explore this wonderful city.

Written By Mari Bandoma Callado, Senior Associate Attorney & Director, Diversity, Equity & Inclusion

The Dolan Law Firm recognizes National Disability Employment Awareness Month this October to commemorate the many contributions of people with disabilities to America’s workplaces and economy.

This year, the theme for NDEAM 2021, “America’s Recovery: Powered by Inclusion,” reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the economic recovery from the COVID-19 pandemic.

Some people who have had COVID-19 have not completely recovered and instead, continue to experience ongoing symptoms for months afterward, known as Post-Acute COVID-19 Syndrome or long COVID-19 – and it has caused a wide variety of limitations.

If you’re experiencing long COVID-19, and it’s affecting your ability to work, you may be entitled to accommodations under the Americans with Disabilities Act and the California Fair Employment Housing Act. Even if you don’t think of yourself as having a disability, you may meet the ADA or FEHA’s definition. Contact the Dolan Law Firm’s employment team to learn more.

Other Resources:

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.