COVID-19 | Dolan Law Firm

Legal Protections for Employees During COVID-19

Written by: Christopher B. Dolan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written By: Christopher B. Dolan and Aimee Kirby

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

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

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

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

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

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

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

Written By: Christopher B. Dolan and Mari Bandoma Callado

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

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

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

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

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

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

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

By Christopher B. Dolan and Vanessa C. Deniston:

This week’s question comes from Stella M. who asks:

Q: I am interested in volunteering as a poll worker in my county on Election Day, but I am concerned about the health & safety ramifications. Hundreds of people will likely be funneling through polling stations on November 3rd, while we are in the middle of a global pandemic. What steps are being taken to protect the health and welfare of both volunteers and citizens?

A: Dear Stella,

Thank you for your question. Your enthusiasm to volunteer is admirable, as is your healthy respect for the Covid-19 virus. First, you should evaluate if volunteering in person makes sense given your own health. If you are immunocompromised or otherwise fall into a high-risk group, in-person volunteering would pose a considerable risk. If poll working is too great a risk for you, there are a great number of ways to help get out the vote, such as phone banking, ensuring voters have a ride to the polls, helping by talking voters through the mail-in-ballot process, and assisting individuals in obtaining a valid ID.

If you are not in a high-risk category and you want to volunteer in person, the CDC has released guidelines to keep poll workers and citizens safe, though there will always be risk involved. The CDC recommends three strategies in helping reduce risks during the election process.

The first strategy is offering a wide variety of voting options, including: voting by mail, early voting or voting in person. In June 2020, Governor Newsom signed a law requiring counties to drop off mail ballots to every active registered voter, whether or not requested. Counties are also required to open one ballot drop-off location for every 15,000 registered voters 28 days before election day.

The second strategy is offering longer voting periods through early voting periods and longer operating hours on Election Day. Given the economic effects of the COVID-19 pandemic, venues traditionally used as polling places such as community centers, retirement homes and churches are harder to utilize safely. In August 2020, California Senate Bill 423 was approved giving counties the ability to merge precincts, as long as voter ratios remain intact. These consolidated polling places are required to be open from October 31, through Nov. 2 for at least eight hours each day and from 7 a.m. to 8 p.m. on Election Day.

The third method involves implementing rigorous safety protocols at polling stations. California’s Secretary of State has set out a number of measures to be taken before volunteers arrive at their assigned polling place as well as while they are volunteering. Poll workers must make every effort to stay healthy prior to service, including engaging in self-screening, temperature and symptom checks, frequent hand-washing and use of hand sanitizer, wearing a face covering, and observing social distancing guidelines leading up to service.

Once inside the polling place, poll workers should continue to take these safety measures. Polling stations should be configured to ensure traffic flow is conducive to social distancing guidelines and face-to-face interactions are minimized. Check in stations should be placed six feet apart from one another and floor markers should indicate appropriate distances as well as help directional flow. Voting booths should also be placed six feet apart from one another, as well as six feet apart from the check-in desk and scanner. Some sites with limited space may receive plexiglass or other partitions which can block air flow between booths. The scanner station is recommended to be near an exit, preferably at the opposite side of the entrance with an exit through a different doorway. Keeping doors and windows open for extra ventilation is also recommended.

As a poll worker, you will be tasked with routinely disinfecting commonly used surfaces, such as door handles, pens and voting booth equipment. You will also be guiding voters safely through the physical voting process, which will require maintaining social distancing and giving clear and audible verbal instructions. Poll workers are advised to ask each voter to use hand sanitizer and should not provide the voter a ballot until the hand sanitizer has dried.

Poll workers should wear a mask at all times and may need gloves, considering that some voters could be asymptomatic. Should a voter arrive without a mask, free masks will be available for use. It is important to know voters cannot be turned away for failure to wear a mask. This may mean poll workers will have to adjust the flow of traffic to ensure the voter is kept as socially distanced from others as possible. One voting booth should be placed further away than others for mask-less voters. Poll workers should offer verbal assurances that the citizen will be allowed to vote, despite not having worn a mask. Should a citizen become hostile or aggressive, poll workers should have an agreed upon phrase to signal a call to security or law enforcement.

Should you decide to volunteer your time, be sure to review both the CDC guidelines and California State Guidelines for poll workers ahead of your date of service. Good luck, stay safe and we thank you for playing this important role in ensuring a free, fair and accessible election for all Californians.

Written By: Christopher B. Dolan and Aimee Kirby

Ella writes:
Q: “I am a stay-at-home Mom and have two children. My son is in second grade. My daughter, Lilia, is in middle school and has just completed seventh grade. Both children went to remote learning in early March and used iPads to connect with their teachers and classmates. During this time, they used Google to do chats and Zoom for remote video instruction. Lilia has had trouble fitting in at middle school, and she has told me about a particular young boy in her class that has made fun of her throughout this school year. She wouldn’t tell me exactly what he was doing, but said that he was, “very mean.” My husband and I decided not to talk to the school administration as it seemed like typical kid behavior, and my daughter, for the most part, seemed happy, and her grades were excellent.

Just before the school year ended, my daughter came to me in tears, holding her iPad. The boy that she had told me about (let’s call him Chad), had posted horrible things in a Google Chat. My daughter is biracial, and Chad compared her to a fat ape’s picture and commented on her hair, saying it looked, “ghetto.” Because her entire class was on this Chat session, they saw the picture Chad posted and his racist language that embarrassed and upset my daughter. I don’t know if the teacher witnessed this or if the Chat was saved. Chad is white, and both his parents are white. My daughter is one of the few biracial children in this school. I thought the environment was more evolved in Northern California. These actions go beyond childhood stuff, and I would like to press charges against the parents and the child. I want justice for my daughter. What are my options?”

A: Dear Ella,
I am so sorry that your daughter is going through this during an already difficult time. Thankfully, California has realized how detrimental bullying is to the development of our children and enacted several laws to help protect victims. Education Code Section 48900, subsection (R)(1) defines bullying as any severe or pervasive physical or verbal act or conduct, including communications made in writing or utilizing an electronic bill, and including one or more acts committed by a pupil which either:

places the pupil in fear of harm to that pupil’s person or property,
causes a reasonable pupil to experience substantial detrimental effect on the pupil’s physical or mental health,
creates a reasonable pupil to experience significant interference with the pupil’s academic performance, and
causes a reasonable pupil to experience substantial interference with the pupils’ ability to participate in or benefit from services or privileges provided by a school.

Your child is being bullied, and action against Chad is warranted.

The first thing that must be done is to report this act of bullying and any other act of Chad’s bullying to the School District. I would suggest that you do this in writing. You may want to sit down with your daughter so you can go over all the acts, as there may be some that she was unwilling or ashamed to tell you. Rarely does a bully strike only once; bullying is usually a systematic attack on a victim that continues for months. The school must investigate the complaint and take action. This action can result in a layered approach to discipline depending on the severity of the acts. The School District can issue a written warning, give out detention, suspend or expel the offending child. Often parents of the victim child consider a jurisdictional transfer for their child to effectively take them out of the past environment and allow them to start new at another school.

Besides making sure that your daughter’s educational needs are met, you may also consider having her talk to a school counselor or a therapist to process these feelings. In some instances, the shame and torment of bullying can lead to psychological trauma, even including self-harming. A therapist can help your daughter voice her feelings, process them and move forward from them. Often, children can find solace in a trusted therapist, and this helps them deal with the trauma that their hearts and brains can’t process yet.

You may also consider a civil action against the School District. This requires that you take action quickly as the statute of limitations is different for government entities. Various state and federal laws would apply to racial discrimination and bullying. As you may uncover more acts of bullying after speaking to your daughter, I would urge you to consider talking to an attorney to consider civil legal remedies. Always, there is a balancing act between determining what is best for your daughter emotionally and (the level of) legal participation.

Written By: Christopher B. Dolan and Kimberly E. Levy

Danny T. writes:

Q: “My wife and I both work. We have two young children. We just got word that our kids would be in distance learning for the beginning of the school year, maybe longer. We cannot afford to have either of us out of work while we homeschool our kids. We are worried that our kids won’t get the education they need because we have to work to make ends meet. Is there any help available?”

A: Dear Danny T.,
During these uncertain times, many families find themselves in an incredibly difficult position without a safety net. Parents are forced to balance two critical needs:

providing for their families and
helping their children receive a quality education through active participation in distance learning.

Fortunately, there is some support available to help families negatively impacted by school closures and unavailability of childcare. On April 1, 2020, the Family First Coronavirus Response Act (FFCRA) took effect. The Act consists of two major components:

Expansion of the Family Medical Leave Act (FMLA) until the end of December 2020, to cover leave and loss of income when an employee needs to care for children because of school or childcare closures and other leave related to COVID-19; and,
Establishment of the Emergency Paid Sick Leave Act which requires employers to pay an employee up to 80 hours (two weeks) of sick leave at a rate of two-thirds their normal rate of pay if the employee is unable to work due to COVID-19 related childcare needs.

Who is Eligible for Paid FMLA Leave?

Under the expansion, FMLA leave may be used to care for a minor child whose school or care provider is closed or unavailable due to COVID-19. In order to qualify, the employee must be the minor child’s parent (biological or adoptive), foster parent, legal guardian, or standing in loco parentis (a legal status). Additionally, the employee must have been employed for at least 30 calendar days.

While typically paid leave is available to employees of companies with 50 or more employees, expanded FFCRA paid leave applies to all employers, unless subject to an exemption. Benefits under the expanded FMLA are available to teleworking employees as well as those working outside of the home.

What Benefits are Available under the Expanded FMLA?

The first two weeks of leave are unpaid, although the time may be covered by the Emergency Paid Sick Leave Act or other paid time off options already available through the employer. After the initial waiting period, the employer must pay the employee two-thirds of the employee’s normal rate of pay, up to a maximum of $200.00 per day for 10 weeks ($10,000).

FMLA leave may be taken intermittently, allowing an employee to work part-time and care for their child(ren) part-time.
For example, if the employee/parent only needs to take 2-4 hours of leave per day, this arrangement is permissible under the act.

The expanded act also requires employers to reinstate employees to their original position upon return from leave, with some exceptions for employers with fewer than 25 employees. For those smaller employers, reinstatement is required unless the position was eliminated due to economic conditions related to COVID-19. Those employers, however, must make efforts to reinstate the employee in an equivalent position.

When electing to use FMLA leave, employees should give their employer as much notice as possible if the need for leave is known about in advance. To learn more about your rights under the FFCRA, click here.

In addition to the federal protections provided by FFCRA, California recently passed the Workforce Innovation and Opportunity Act which provides funds to assist workers impacted by COVID-19. Under this act, Statewide Worker Supportive Services provides funding to underserved populations to help workers to pay for childcare, housing, utilities, and transportation.
There are two tiers of eligibility:

Individuals receiving at least 50 percent of their previous wages either from their employer directly or Unemployment Insurance (UI) benefit payments may receive supportive services totaling $400.
Individuals who are not receiving at least 50 percent of their wages from their employer directly or through UI benefit payments may receive supportive services totaling $800.

This program is administered through the local Workforce Development Board. To search for the closest board, click here.

If you believe you were unlawfully denied paid leave or were terminated because you requested it, an employment attorney may be able to assist you.

—

Christopher B. Dolan is the owner of the Dolan Law Firm. Kimberly E. Levy is a senior associate attorney in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com.

Written By: Vanessa C. Deniston and Christopher B. Dolan

This week’s question comes from Mason H. who writes:

Q: “I am currently employed by a private company doing contracted work repairing roadways. I am considered an essential worker in California. As the sole breadwinner in my family, I am truly grateful to have steady work and I would never want to put my job in jeopardy. Lately, my manager has been encouraging everyone on my crew to get tested for COVID-19. I feel just fine, but I want to get tested as I am exposed to others on a daily basis. I am worried if I test positive for some reason that will give them cause to fire me. Should I be worried?”

A: Dear Mason, In this strange and challenging new economic reality, I completely understand your instinct to protect your job at all costs. Essential workers like you have to weigh economic survival against their own physical health and family’s safety. Given the ever-changing landscape of the virus and its effect on the economy, many employees are unclear about their rights and many employers are uncertain about their obligations. This can lead to irrational decision-making fueled by panic or fear.

Thankfully, the city of San Francisco has stepped up to address the problem and provide clarity. The City has drafted and introduced a new ordinance that offers special job protections for essential workers like you with respect to COVID-19 testing. The proposed ordinance would make it illegal for an employer to fire, threaten to fire, demote, suspend, discipline, reduce employee benefits or in any way discriminate against individuals who receive a positive COVID-19 test, show symptoms of the virus, or make a decision to quarantine after being exposed to the virus. Employers would not be able to question employees who do not appear ill about whether they have medical conditions that would make them more vulnerable to the virus. Though, employers could request medical exams for incoming employees as long as the policy is applied to all applicants.

These protections would also be extended to job seekers in San Francisco. Under the proposed new ordinance, employers could not ask applicants to be tested for the virus before extending job offers and could not rescind a job offer if the applicant test positive. Employers would be required to make reasonable accommodations for individuals who test positive for the virus or quarantine after suspected exposure.

This proposed legislation, should be signed into law, is a significant expansion of employee rights in San Francisco; previously, employees eligible for certain benefits through their employer (i.e. medical leave) could avail themselves from legal remedies. That is why this new proposed ordinance is vital for essential workers who have already used up their benefits or who never had them in the first place. It should be noted, however, the law would apply only to employers in San Francisco.

California employees outside of San Francisco must still look into the California Family Rights Act and the Americans with Disabilities Act for leave guidelines. Employees outside of San Francisco should also review their current city ordinances, as many cities across California have established their own additional protections for employees in light of COVID-19.

COVID-19 has handed employers a compelling “good faith business reason” for mass layoffs as they are struggling to stay afloat financially amid statewide closures. Many employers, however, are using the virus as an excuse to discriminate against and fire employees who test positive for the virus or elect to quarantine at home as a result of exposure. Such employers often claim they are “restructuring” or “downsizing” in light of statewide shutdowns. In such cases, the true reason, whether it be the fear of a potentially infected employee spreading the virus to others or a general unwillingness to accommodate employees that wish to err on the side of personal safety, is not always easy to establish from an evidentiary standpoint. The new ordinance, however, heightens the scrutiny on employers terminating essential workers and gives employees broader protections.

Many employees may still be skeptical about how The City actually will enforce this ordinance (if passed) and hold employers accountable. Under the law, the San Francisco Office of Labor Standards Enforcement would be tasked with investigating reported violations and would have the power to award certain remedies to affected employees, such as lost wages and job reinstatement. Civil penalties would be imposed on employers who violate the ordinance, ranging from $1,000 to $10,000+ depending on the number of violations committed, including a single violation of $1,000. Such penalties would only serve as a deterrent if employees consistently report suspected violations and the Office of Labor Standards Enforcement follows through on imposing penalties and awarding remedies.

If you believe you have been retaliated against or terminated because you tested positive for COVID-19 or because you elected to quarantine at home after suspected exposure, an employment attorney can assist you in reporting the violation to the San Francisco Office of Labor Standards and Enforcement and possibly pursue additional civil remedies on your behalf.

Available COVID-19 Resources in Response to your Legal Questions

Dolan Law Firm has been receiving many questions from Californians regarding their legal rights as they pertain to the current COVID-19 pandemic.

We are making these resources available here in response to your legal questions.

THE LAW IN THE STATE OF EMERGENCY

Since March 2020, we have seen an unprecedented use of local, state and federal emergency powers as a result of the spread of the COVID-19 virus.

The issuance of a Proclamation by a mayor or governor “cuts through red tape” and waives many of the procedural and regulatory steps that have to be followed under normal conditions, temporarily granting significant power and decision-making authority within the executive branch, i.e., the Mayor and Governor.
Mayor Breed issued a Proclamation Declaring the Existence of a Local Emergency on February 25, 2020 which allowed the Mayor to direct the personnel and resources of any department, command the aid of other persons, and do whatever else the Mayor may deem necessary to meet the emergency.
Governor Gavin Newsom issued a statewide Proclamation of a State of Emergency on March 4, 2020 which gives the Governor complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California.
The Mayor’s February 25th Proclamation required all officers and employees to undertake all steps requested by the Director of Public Health, Thomas Aragon MD, D. Ph, such as social distancing, prohibiting gathering in group events, and Shelter-in-place Order.
The Governor’s proclamation paved the way for the closure of schools, shelter-in-place orders, admittance of out of state health care providers to treat patients, funds and personnel to support relief efforts of local authorities, access to any state-owned properties, including state fairgrounds, required by the Office of Emergency Services to respond to the COVID-19 epidemic, the imposition of anti-price-gouging laws, and funding for the purchase of medical supplies and medications.

Read the full article

Discrimination and Retaliation in Reducing Workforce are Unlawful

Employers may not terminate or lay-off employees if decisions are based upon a discriminatory or retaliatory motive.

An employer may not use race or national origin as a basis for the decision of which employees to terminate.
An employer may not use the national origin or race as a basis to deny Asians the right to return to work.
An employer is forbidden from using the fact that an employee took accrued sick-time or other eligible leave as a basis for that decision.

Read the full article

Employees Affected by COVID-19 are Entitled to use Sick Leave

All California employees accrue sick time at their jobs to be used for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or relative.

Employers in California are required to track sick time on each employee.
San Francisco government implemented Workers and Families First Program guaranteeing an additional five
days of paid leave for those affected by Covid-19.
Employees who contract Covid-19, or whose family members do, may be entitled to leave under the California Family Rights Act.
CFRA provides job protection, it does not provide monetary benefits.
However, up to 6 weeks of payments may be available concurrently through California Paid Family Leave if eligible.

Read the full article

California Expands Health Care Resources for Covered, Uninsured and Undocumented Residents Affected by COVID-19

It is important for every Californian to know their health care options if they start showing signs and symptoms of the coronavirus.

The state eliminated all cost-sharing requirements on COVID-19 screenings and testing including telehealth services.
Employees that lost their health insurance plans can sign up for state programs like Medi-Cal and Covered California if eligible.
California’s undocumented population may use Medi-Cal as long as they meet the basic eligibility requirements.
If you believe that your loved one is in immediate danger, call 911. If there is no immediate risk of harm, report the facility to Adult Protective Services.
California’s Medicare program provides health care coverage for all lab tests and medically necessary hospitalizations related to COVID-19.

If you are experiencing any of the key COVID-19 symptoms, which include fever, cough or shortness of breath, the California Department of Public Health is advising you to call your physician.

Read the full article

Elder Abuse and Neglect During the Coronavirus Crisis

The elderly, infirm and dependent are among the most vulnerable members of our community.

The Centers for Medicare & Medicaid Services are now significantly restricting visitors, volunteers, and nonessential personnel as well as communal activities inside the nursing homes.
Common signs of elder mistreatment include the following: poor hygiene or skin condition, untreated medical conditions, unexplainable dehydration or malnourishment, unusual confusion, depression, or withdrawal
Elder abuse comes in many forms and an individual can face one type of abuse or multiple types at once
If you believe that your loved one is in immediate danger, call 911. If there is no immediate risk of harm, report the facility to Adult Protective Services.
California law provides for recovery of damages for pain and suffering, economic damages and punitive damages when there has been recklessness, fraud and/or patient abandonment.

Read the full article

Growing Anti-Asian Sentiment, Hate Crimes and Acts of Terrorism During the COVID-19 Crisis

Racially-motivated hate crimes and threats from white supremacists and other domestic groups have also been on the rise.
The Unruh Civil Rights Act specifically outlaws discrimination by all business establishments in California based on sex, race, color, religion, ancestry, national origin, mental or physical disability, age or medical condition (including HIV status).
There are two main types of workplace discrimination: disparate treatment and disparate impact.
The core causes of action in a hate-crime based civil action, will likely be the Ralph Act or Bane Act. If you are a victim of violence, both are likely to apply.
The perpetrator of the hate crime may also be liable for Intentional Infliction of Emotional Distress, Assault and Battery and potentially general negligence.

Read the full article

THE LAW IN THE STATE OF EMERGENCY

By: Christopher Dolan Esq., with contribution from Vanessa Deniston Esq.

Over the past month, we have seen an unprecedented use of local, state and federal emergency powers as a result of the spread of the COVID-19 virus. Emergency powers are a deviation from normal governance and are only invoked in the most extreme circumstances which don’t permit the normal deliberative process involving the Board of Supervisors, Senate, Assembly and/or Congress. In short, democracy takes time and disasters such as pandemics can’t wait. A proclamation of a State of Emergency allows the executive branch, be it the Mayor, Governor and/or President, to suspend the normal democratic process involving the legislative branch, and act decisively where conditions of extreme peril to the safety of persons and property have arisen. This article outlines the legal basis for our current state of emergency and the various unprecedented orders/laws which have been issued and/or passed. I myself had to take a self-study crash course in emergency authority to write this article as universities don’t offer a class on pandemics in law school. Other articles authored by my attorney colleagues at the Dolan Law Firm – Emile Davis Esq., Mari Bandoma Esq., and Vanessa Denniston Esq. – are published herein, and will continue to be published in my Thursday column to update readers as the emergency continues to unfold.

On February 25, 2020, San Francisco Mayor London Breed, before even one case of COVID-19 was diagnosed within San Francisco, issued a Proclamation Declaring the Existence of a Local Emergency threatening the lives, property and welfare of the City and its Citizens. On March 4, 2020, Governor Gavin Newsom issued a statewide Proclamation of a State of Emergency. The decisive, albeit inconvenient, orders put into effect by these two exemplary leaders have saved thousands of lives. This action is why we are not suffering like New York. The Mayor’s Proclamation is issued pursuant to The San Francisco Charter, section 3.100(13), which provides that “the Mayor may direct the personnel and resources of any department, command the aid of other persons, and do whatever else the Mayor may deem necessary to meet the emergency.” Chapter 7, Section 7.1, of the San Francisco Administrative Code defines an emergency as “the actual or threatened existence of a disaster of extreme peril to the safety of persons or property with the City and County” and goes on to elaborate a long list of catastrophes such as fire, flood, storm, riot, earthquake, war, enemy attack, and epidemic. Pursuant to California Government Code, Section 8680, whenever a local emergency is proclaimed by an official designated by ordinance, the local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body (here, the board of supervisors, which it was). It must then be ratified every 60 days thereafter, unless that limit is waived by the Governor as part of his own proclamation of emergency.

The Governor’s Proclamation was issued pursuant to California Government Code, Section 8652, empowering the Governor to proclaim a state of emergency when he declares the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state. The list of perils under which the Governor can declare such a state of emergency also includes epidemics and goes farther to include drought, cyberterrorism, energy shortage, plant or animal infestation or disease, and volcanic prediction. The Governor’s authority vests when he determines that such a peril exists and is either a) requested to declare an emergency by a mayor, city manager, county administrative officer, or chair of a Board of Supervisors, or b) he/she determines that the magnitude of the peril is, or is likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city. In this crisis, both of those occurred.

The issuance of a Proclamation by a mayor or governor “cuts through red tape” and waives many of the procedural and regulatory steps that have to be followed under normal conditions, temporarily granting significant power and decision-making authority within the executive branch, i.e., the Mayor and Governor.

Pursuant to Section 7.6 of the San Francisco Administrative Code, the Mayor has broad powers “to make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by an emergency.” These powers allow her to enter into agreements with public and private agencies to obtain vital supplies, equipment and properties found lacking and needed for the protection of life and, if required immediately, to commandeer the same for public use. She is also empowered to requisition necessary personnel, property or material of any City department or agency to address the emergency.

Pursuant to Government Code, Section 8627, “During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California.” The orders and regulations he makes have the force and effect of law. The Governor may direct all agencies of the state government to utilize and employ state funds, personnel, equipment, and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency; and he may direct such agencies to provide supplemental services and equipment to restore any services needed to provide for the health and safety of the citizens of the affected area. Any agency so directed by the Governor may expend any of the moneys which have been previously appropriated to it in performing such activities, irrespective of the particular purpose for which the money was originally appropriated.

The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. The Governor can continue the state of emergency through another proclamation if necessary.

Most recently, Governor Newsom requested that the President declare a national state of emergency to provide federal emergency relief to California, and, as a result, California will obtain federal emergency relief immediately, along with additional funding through the recently passed Federal Stimulus Package. Since the State of Emergency has been imposed, the Governor and the Mayor have taken significant action.

The Governor’s proclamation paved the way for the closure of schools, shelter-in-place orders, admittance of out of state health care providers to treat patients, funds and personnel to support relief efforts of local authorities, access to any state owned properties, including state fairgrounds, required by the Office of Emergency Services to respond to the COVID-19 epidemic, imposition of anti-price-gouging laws, and funding for purchase of medical supplies and medications. Additionally, all residents have been ordered to heed the advice of emergency officials to protect their safety and the safety of others.

The Mayor’s February 25th Proclamation required all officers and employees to undertake all steps requested by the Director of Public Health. On March 6th, the San Francisco Public Health Officer (PHO) Thomas Aragon MD, D.Ph., issued a Declaration of a Local Health Emergency pursuant to California Health and Safety Code, Section 101080. Section 101080 allows a local health PHO to immediately quarantine individuals that may have been exposed to biological agents that may spread to others. On that same date he encouraged citizens to employ social distancing.

On March 11th, the PHO began exercising his power by ordering certain City facilities to prohibit non-essential group events of more than 50 people. On March 13th, he prohibited gatherings of 100 people or more in public venues. That same day, the Mayor issued a Second Supplement to the Emergency Proclamation enacting a moratorium on evictions for non-payment of rent. Additionally, she prohibited the discontinuation of water, sewer and power services for non-payment of utility bills.

On March 16th, the PHO issued a “Shelter-in-Place Order” requiring most people to remain home subject to certain exceptions to obtain essential services and supplies, requiring closure of non-essential businesses through April 7, 2020, and the closing of all restaurants to in-person dining. A violation of an order issued by the PHO is a misdemeanor, punishable by a fine of up to one thousand dollars ($1000), or by imprisonment in the county jail for a period of up to 90 days, or both.

Also on March 16th, Governor Newsom issued Executive Order N-28-20, finding it was necessary to promote stability among commercial and residential tenants to promote public health and mitigate the economic impact of the crisis, and waiving certain provisions of state law so local jurisdictions could take action to help these tenants.

On March 17th, the Mayor issued a Third Supplemental Declaration authorizing a program whereby the City will provide financial assistance to employers that agree to supplement their existing paid sick leave to employees who work in the City. She also suspended local laws that required restaurants providing take-out to also have dine-in facilities, clearing the way for all restaurants to provide take-out services.

That same day, the Governor signed emergency legislation, passed by the legislature, authorizing up to $1,000,000.00 in funding to increase hospital capacity, provide lifesaving services to Californians isolating at home, purchase Personal Protective Equipment (PPE), and permit the cleaning of schools and funding to child care facilities that remain open.

On March 18th, the Mayor issued a Fourth Supplement to the Proclamation providing a temporary moratorium on eviction for non-payment of rent by commercial tenants directly impacted by the COVID-19 crisis with gross revenue at or below $25,000,000.00. This Order precludes eviction of a commercial tenant for failure to make a rent payment after March 17th, without providing written notice and at least one month to “cure” the breach/non-payment by paying the back rent or by providing documentation that the failure to pay was due to a financial impact from COVID-19 because of a substantial decrease in business income due to illness, reduced hours or consumer demand, or temporary closure because of orders of the PHO. If the tenant provides that documentation, they are given an additional month and the landlord has to engage in good faith discussions to attempt to develop a payment plan. If a payment plan can’t be agreed to, the tenant needs to either pay the rent or provide further evidence of a continuing inability to pay due to COVID-19, which then allows for an additional month to pay. Thereafter the tenant may obtain additional one month extensions by providing updated documentation each month for a maximum of six months. If the tenant hasn’t paid at the end of the six month period, the landlord may proceed with eviction for non-payment of rent due. This provision will last for a period of 30 days, minimum, and can be extended by the Mayor as long as the State of Emergency exists.

On March 18th, The San Francisco Superior Court stayed (suspended) all unlawful detainer (eviction) actions for 90 days, except those resulting from violence, threats of violence, or health and safety issues.

On March 19th, the Governor issued Executive Order N-33-20, and the California PHO issued an order requiring people to stay at home unless they fall within one of 16 sectors needed to maintain continuity of “operations of the federal critical infrastructure.” Violation of the Governor’s order – like the SF PHO’s shelter-in-place order – is punishable as a misdemeanor with a fine up to $1,000.00 or imprisonment, not to exceed six months.

On March 20th, Governor Newsom announced deployment of the California National Guard to protect short-term food security to isolated and vulnerable citizens. The National Guard has been deployed to set up logistics in support of the food bank distribution network as the demand for its services has grown.

On March 23rd, the Mayor issued a Fifth Supplement to the Proclamation, clarifying the relief provided for residential tenants to include housing providers who are exempt from the Rent Ordinance because their rent is controlled or regulated by the City; to allow tenants to obtain extensions due to expenses that are non-medical in nature; and to modify the notification and timing procedures that apply when a tenant requires an extension. The moratorium prohibits eviction if, within thirty days after the date the rent is due, the tenant provides notice to the landlord that the tenant is unable to pay the rent due to “financial impacts related to COVID-19.” The definition of “financial impacts” has been broadened to include a substantial loss of household income due to a business closure, loss of paid hours of work or wages, layoffs, or extraordinary out of pocket expenses. Within one week of a tenant’s providing an inability to pay they must provide the landlord documentation verifying that the inability to pay is related to COVID-19. If the tenant fails to provide this documentation, assuming the courts are hearing eviction cases, a landlord may proceed with an eviction. If the tenant does provide the documentation, they are granted an additional month to pay the rent. If the tenant fails to pay the rent, the landlord must inform the tenant in writing that they are in breach of the rental agreement and the landlord and the tenant must then attempt to discuss the matter in good faith to develop a payment plan for the tenant to pay the missed rent. The Order expires 30 days after it was issued, upon the termination of the Proclamation of Local Emergency, or upon further Order from the Mayor. It may be extended by a period of another 30 days if the Mayor determines it is warranted. Upon termination of the Order, a tenant who followed the law and provided the required notice shall have up to six months to pay the rent owed to the landlord before the landlord can move to evict because of the missed rental payments.

On March 25th, Governor Newsom announced that he secured agreements with Citigroup, JPMorgan Chase, U.S. Bank, Wells Fargo, as well as nearly 200 state-chartered banks, credit unions and servicers for a 90-day grace period for mortgage payments to borrowers by those property owners economically impacted by COVID-19. The participating financial institutions will waive late fees and refrain from reporting late payments to credit reporting agencies for qualifying borrowers. The agreement also provides a moratorium on foreclosure sales and evictions for 60 days.

This unprecedented pandemic, not experienced in over 100 years, will, through continued and expanding proclamations of emergency, and inevitable legislative action, continue to unfold to protect the citizens of the City of San Francisco, California, and if the President acts appropriately, the Nation. We hope this information, provided by the Dolan Law Firm, will help Examiner readers to understand and adapt to the shifting legal landscape. I pray for the health and safety of our great city, state and nation, and each of you. We, as a law firm, continue to operate at full capacity, remotely, to serve the public in personal injury, employment, and civil rights matters throughout the crisis and we will continue to provide legal information as the situation unfolds.

Discrimination and Retaliation in Reducing Workforce is Unlawful

By: Emile A. Davis

he harsh reality of the Covid-19 pandemic, and the government shutdowns, is that businesses are not bringing in income that was once regular and expected. As a result, many employers will be forced to lay-off or terminate hard working employees. Businesses do have the right to terminate or lay-off employees when the needs of the business call for a reduction in force and, generally, a non-union employer may make the decision about which employees to let go on whatever basis they chose. However, an employer may not make such decisions based upon a discriminatory or retaliatory motive.

For example, an employer may not use race or national origin as a basis for the decision of which employees to terminate. As is discussed elsewhere in this series of articles, there is an increase in discrimination and hate-crimes toward Asians since the onset of Covid-19. An employer may not use the national origin or race as a basis to deny Asians the right to return to work.
Similarly, most of the protected leave laws discussed throughout this series of articles contain anti-retaliation provisions. That means that when an employer is making the decision of which workers to let go, they are forbidden from using the fact that an employee took accrued sick-time or other eligible leave as a basis for that decision. A worker who took CFRA leave to care for a family member who contracted Covid-19, may not be treated differently from one who did not take that leave. Having taken qualified leave cannot be held against an employee.

Employers are generally aware of these laws and will not often state specifically that the employee is being terminated for having taken leave. Often though, hints as to the underlying motive will slip. Employers may make statements indicating “they need someone who is reliable” or who “will put the business first.” These may be clues that the underlying reason may be that the worker took protected leave.

Employees Affected by COVID-19 are Entitled to use Sick Leave

By: Emile A. Davis

All California employees accrue sick time at their jobs. At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked. For a regular full-time employee, that works out to approximately 1.3 hours of sick time earned each week or 5.3 hours each month. This leave may be used for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.
Employers in California are required to track sick time on each employee paystub. Those workers that are unsure how much sick time they have remaining should be able to review their most recent paystub to see both:

a) whether the sick time is accruing correctly; and,
b) exactly how much sick time is available currently.

In San Francisco, local government has, in response to the pandemic, implemented an ordinance guaranteeing an additional 5 days of paid leave for each San Francisco worker affected by Covid-19. (Workers and Families First Program.) Importantly, this program will also provide support for local businesses by using funds specifically reserved for small businesses (50 or fewer employees) to contribute up to 40 hours at the $15.59 minimum wage per employee to help cover the impact of the additional sick leave will have on employers.

Employees who Contract Covid-19, or whose family members do, may be entitled to leave under the California Family Rights Act

The California Family Rights Act (CFRA) allows leave from work for serious medical issues. This type of leave may be available for workers affected by Covid-19. Not all employers must allow this leave, and not all employees are eligible.

An employer is a covered entity under the CFRA and must allow leave to eligible employees if they employ more than 50 employees in a 75-mile radius of your worksite. Roughly, if there are 50 or more employees in the Bay Area, with a few specific exceptions, they are likely a covered employer. In order for an employee of a covered entity to have leave rights under the CFRA, the employee must have worked for that employer for at least 1 year and must have worked 1250 hours within the last 12 months. That works out to an average of just over 24 hours a week.

If the eligibility requirements are met, the CFRA allows an employee to take up to 12 weeks of unpaid leave for a number of issues including the employee’s own serious health condition or the serious health condition of a spouse, child, or parent. If an eligible worker contracts COVID-19, is quarantined because it is suspected, or if they must stay home to care for a close family member who has contracted the virus, they should be entitled to 12 weeks of leave.

An employer may require that a worker provide medical certification of the underlying serious medical condition. That may be impractical during this pandemic given that doctors and other health care providers are working to diagnose and treat urgent medical needs. It would be advisable for a worker seeking leave under the CFRA to request a stay-at-home instruction from a physician and provide that to the employer when requesting the leave. In a pandemic, employers will be expected to use their judgment as well as public health recommendations to determine whether to require, or waive, the usual certification requirements.

A worker seeking leave should give the employer notice of the need for leave as soon as practical, however, the law anticipates that some medical conditions are emergent and do not allow for a lengthy notice period.

While CFRA provides job protection, it does not provide monetary benefits. However, up to 6 weeks of payments may be available concurrently through California Paid Family Leave.

California Paid Family Leave

California Paid Family Leave (PFL) is a program administered through the Employment Development Department. PFL provides partial wage replacement benefits to employees who need to take time off from work to care for a seriously ill family member (child, parent, grandparent, grandchild, sibling, spouse, or registered domestic partner) or to bond with a new child. There is no requirement that an employee have worked at a given employer for any specific amount of time. This is a broader scope than the CFRA, so it is possible that some persons may be eligible for these monetary benefits, but who are not given job protected leave under the CFRA.

Eligible applicants for these benefits may receive approximately 60-70% of their wages, depending upon income. The length of time at a job does not determine eligibility. However, the amount of benefits will be calculated based upon the wages that the applicant earned in the period 5-18 months prior to the claim period.

Starting on July 1 of this year, the 6 weeks of paid leave will be increased to 8 weeks available per 12 Month period. An applicant may file a claim online by going to https://edd.ca.gov and searching for “SDI Online”, or an application may be filed by mail.

California Expands Health Care Resources for
Covered, Uninsured and Undocumented Residents Affected by COVID-19

By: Vanessa Deniston

As COVID-19 continues to spread across the state, it is imperative that every Californian be fully informed of their health care options should they begin to show signs and symptoms of the coronavirus. For individuals with health care coverage through an employer, Medi-Cal, Medicare, or Covered California, the state has eliminated all cost-sharing requirements on medically necessary screenings and COVID-19 testing, as well as urgent care, hospital and provider visits for the purpose of screening and/or testing for COVID-19, meaning co-pays, deductibles and coinsurance payments that would normally be billed to patients in such instances will be waived. The state has also mandated that medically necessary screenings and testing for COVID-19 will be free of charge. This will also apply to telehealth services as well as in-person doctor and urgent care visits. Such telehealth services are being expanded statewide for individuals unable to visit their doctor in person.

In light of the statewide “shelter in place” order, a great majority of individuals in the hospitality, restaurant, retail, and event industries are now without health insurance. Covered California and the California Department of Health Care Services have joined forces to assist unemployed residents with a path to insurance through state programs like Medi-Cal and Covered California. Covered California has announced it is extending its typical enrollment period to June 30. Individuals who sign up through Covered California, will have access to private health insurance plans with monthly premiums that may be lowered in response to the crisis, depending on annual income. Once a plan is selected, coverage would begin on the first of the following month, to help avoid gaps in coverage. Residents can visit CoveredCA.com to learn more.

California’s undocumented population can avail themselves of certain public programs like Medi-Cal, which does not exclude any group from accessing emergency care so long as they meet the basic eligibility requirements. Emergency care coverage will apply to those who require medically necessary testing and health care related to COVID-19, even if such individuals are undocumented. Unlike with the Covered California program, residents may apply for Medi-Cal at any time. If an individual is determined to be eligible for Medi-Cal, coverage begins immediately and is effective back to the first day of the month in which the application was submitted. Those already enrolled in the Medi-Cal program that are up for renewal will have their coverage extended, as a 90-day hold has been placed on Medi-Cal renewal reviews. For further resources on the Medi-Cal eligibility requirements and application process visit dhcs.ca.gov.

California’s Medicare program, a service offered to any California resident over 65 or with a qualifying disability, provides health care coverage for all lab tests and medically necessary hospitalizations related to COVID-19. Medicare also covers telehealth services such as “virtual check-ins” with an individual’s established physician and written communication between patient and care provider through online portals. These telehealth resources are especially useful for Medicare recipients who live in rural areas or who may have symptoms and simply wish to check in with their physician for reassurance or guidance. For further resources on how the state run Medicare program is responding to COVID-19, visit medicare.gov.

Currently, there are 22 public health labs across California testing for COVID-19, a number of which are in the Bay Area. Bay Area testing labs are currently located in San Francisco, Alameda, Richmond, Contra Costa County, San Mateo, and Solano County. Broad scale testing, however, is not yet available. If you are experiencing any of the key COVID-19 symptoms, which include fever, cough or shortness of breath, the California Department of Public Health is advising you to call your physician. Based on the severity of your symptoms, your physician may advise you to come in so a specimen can be collected for testing, or your physician may advise you to stay at home and self-isolate in the case of more mild symptoms. If you are unable to contact a physician and are experiencing severe symptoms, CDPH advises you to go to your local urgent care or call 9-1-1. Further state resources and guidelines can be found at cdph.ca.gov.

This pandemic is hitting certain communities harder than others, particularly the elderly, individuals with chronic health conditions, those without proper housing, undocumented residents, and individuals in industries that have been virtually shut down due to the “shelter in place” order. In the face of this urgent public health crisis, everyone must act with vigilance to protect those in our community in these especially high risk categories, by staying at home, practicing social distancing, disinfecting surfaces daily, and frequently washing your hands with soap and water.

Elder Abuse and Neglect During the Coronavirus Crisis

By: Mari Bandoma Callado

The elderly, infirm and dependent are among the most vulnerable members of our community. In California, over 100,000 people live in skilled-nursing facilities. With America’s seniors being at higher risk for severe illness and complications from COVID-19, certain measures have been enacted to ensure the safety of nursing home residents from COVID-19.

The Centers for Medicare & Medicaid Services (CMS) are now significantly restricting visitors, volunteers and nonessential personnel as well as communal activities inside the nursing homes. These restrictions make sense with reports of large numbers of cases of COVID-19 spreading quickly through nursing homes. Indeed, the Centers for Disease Control and Prevention (CDC) has indicated that sick visitors and health care personnel are the most likely source of introduction of the coronavirus into nursing homes.

Recognizing Elder Abuse During the Coronavirus Crisis

These significant restrictions, however, could lead to increased abuse and neglect of the elderly as the normal safeguards of regular day-to-day contact with the outside world have been removed. Generally speaking, the easiest way to recognize elder abuse is by spending time with your loved one regularly. Visiting him or her at the facility at various times of day and days of the week will give you a better sense of your loved one’s daily routine. With the statewide “stay at home” order in place for the foreseeable future, this will be much more difficult to do. Thus, maintaining regular communication by phone or other means while practicing social distancing with your loved one is going to be extremely important during this time.

According to the California Department of Justice, some common signs of elder mistreatment include the following: poor hygiene or skin condition, untreated medical conditions, unexplainable dehydration or malnourishment, unusual confusion, depression, or withdrawal. By knowing what to watch out for, you may be more likely to identify abuse if it occurs. Since mistreatment commonly escalates, this can be important in order to ensure any abuse that occurs is immediately caught and stopped.

Types of Elder Abuse

Elder abuse comes in many forms and an individual can face one type of abuse or multiple types at once. These include but is not limited to:

Neglect: the failure to provide adequate care on the caregiver’s part which can involve failing to provide social stimulation, medical care, nutritious food or clean water, or attending to the individual’s hygiene needs;
Physical abuse: any instance of hitting, kicking, or other physical harm inflicted on an individual as well as denying an individual food or medical care;
Emotional abuse: abuse that damages the victim’s self-esteem and makes him or her feel unwanted and unloved;
Psychological abuse: abuse that involves manipulating the victim’s sense of reality and his or her perception of events;
Sexual abuse: anytime the victim is subjected to unwanted sexual contact or sexual relations to which he or she cannot consent, he or she faces sexual abuse; and
Financial abuse: the mistreatment that involves taking money and valuables from elderly victims, either through direct or deceptive means.

Reporting Elder Abuse and Nursing Home Neglect

If you suspect that your loved one has been subjected to any or multiple types of elder abuse, or if you care concerned that the nursing home he or she is in has not taken the precautions it should to protect your loved one from COVID-19 such as taking the steps to restrict visitors and nonessential personnel from being in the facility or failing to provide personal protective equipment to health care personnel, don’t hesitate to take action. If you believe that your loved one is in immediate danger, call 911. If there is no immediate risk of harm, report the facility to Adult Protective Services, a department with the California Department of Social Services.

California Law Protections from Elder Abuse and Neglect

California law provides for recovery of damages for pain and suffering, economic damages and punitive damages when there has been recklessness, fraud and/or patient abandonment. The Dolan Law Firm can help you identify all of your loved one’s damages and pursue compensation for them from the party responsible for the abuse.

Growing Anti-Asian Sentiment, Hate Crimes and Acts of Terrorism During the COVID-19 Crisis

By: Mari Bandoma Callado and Emile A. Davis

The sudden emergence of racist and violent attacks towards people of Asian descent is reminiscent of the discrimination and harassment faced by American Muslims, Arabs and South Asians in the United States after 9/11. Reports of microaggressions in public, discrimination by business establishments, workplace discrimination and harassment, and threats of and actual acts of violence towards Asian Americans and Pacific Islanders have been on the rise.

Racially-motivated hate crimes and threats from white supremacists and other domestic groups have also been on the rise. There are ongoing federal investigations related to extremists exploiting the Covid-19 pandemic. The Federal Bureau of Investigation’s New York office issued an alert reporting that extremists groups are encouraging intentional spread of the coronavirus to police officers and members of the Jewish Community. The Department of Homeland Security also warned about white supremacists calling to spread the virus and target diverse neighborhoods and places of worship.

Discrimination and hate-based attacks like these have far-reaching implications for our society It is a problem that should not be ignored, lest it grow worse. This article discusses the various available causes of action, theories of liability and potential defendants to address the heinous attacks on individuals or groups based on race, national origin and ethnic background in civil court.

Discrimination by Business Establishments

The Unruh Civil Rights Act specifically outlaws discrimination by all business establishments in California based on sex, race, color, religion, ancestry, national origin, mental or physical disability, age or medical condition (including HIV status). “Business establishments” includes but is not limited to hotels, restaurants, theaters, hospitals, and retail stores.

Workplace Discrimination and Harassment

An employer who treats an employee differently because of race, national origin, or ethnic background or fails to protect an employee from race, national origin or ethnicity-based harassment is violating Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”). There are two main types of workplace discrimination: disparate treatment and disparate impact. Disparate treatment occurs when an employment action is taken by an employer against an employee because of their race, national origin, ethnicity or other protected characteristic. Disparate impact happens when an employer’s actions create a policy that discriminates against an entire protected group of employees.

Hate Crimes

Ralph and Bane Acts

The core causes of action in a hate-crime based civil action, will likely be the Ralph Act or Bane Act. If you are a victim of violence, both are likely to apply.

The Ralph Act guaranties that each person in California be free of violence, intimidation and the threat of violence, against their person or property based upon actual or perceived protected classifications, including, but not necessarily limited to: citizenship, immigration status, political affiliation, race, and national origin.
The Bane Act is slightly different, it guarantees that persons in California be free from interference by the actual or attempted “threat, intimidation, or coercion”…”with the exercise or enjoyment”…”of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.

Related Causes of Action

The perpetrator of the hate crime may also be liable for Intentional Infliction of Emotional Distress, Assault and Battery and potentially general negligence. Intentional Infliction of Emotional Distress occurs when an individual purposely causes severe emotional distress to you as a result of extreme and outrageous conduct. Examples of Intentional Infliction of Emotional Distress claims can include racial insults and conduct that threatens your physical security (although a physical injury is not necessary). The “legal” definition of assault differs from how the word is normally used in everyday language. According to the legal definition, assault occurs when a person demonstrates the intent to hurt you and you believe that you will be hurt, but there is no actual contact or physical injury. Battery requires the actual use of force. It occurs when a person intentionally and harmfully touches you without your consent. A person acts intentionally if their action was on purpose, regardless of whether they actually intended to harm you with their action.

Other Theories of Liability and Potential Defendants

Most often, hate crimes are criminally prosecuted against the individuals responsible. In a civil suit, it is imperative to look for other potential theories of liability and other defendants. Individual defendants rarely have the resources to compensate the victim for the damages they caused.

An employer may be liable for hate-crime based actions when the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. Theories of negligent hiring and supervision may also reach to the employer of the perpetrator of the hate crime.

The surrounding area and circumstances should be explored for a potential premises liability cause of action. Did the incident occur at a bar or restaurant? If so, a several dram-shop based duties may come into play and are impacted by levels of knowledge, security, and past events. It may not even be enough for a licensed dram shop to merely warn of dangerous persons outside the premises, they may have an active duty to assist to avoid danger to a patron.

If a vehicle was involved in the attack, other avenues of recovery may be open for the victim of the hate crime.
Groups or organizations of which the perpetrators of the hate crime are members may be responsible under agency theories depending upon the circumstances. Or, if the perpetrator of the hate crime is a member of a hate-group, that group may be independently liable for their own wrongful acts in organizing, planning or otherwise encouraging the crime.

If you think you are discriminated against or harassed by a business establishment or in the workplace, or if you have been the target of a hate crime, contact the Department of Fair Employment and Housing, or consult with a trial attorney to protect your rights.

The Asian Pacific Policy and Planning Council (A3PCON) and Chinese for Affirmative Action (CAA) have launched a reporting center to allow Asian Americans and Pacific Islanders to report incidents of hate they have experienced. To file an incident report, please go to
http://www.asianpacificpolicyandplanningcouncil.org/stop-aapi-hate/

FAQs

Q: I’ve been hearing about different laws being passed almost every day. How is this possible?

A: A proclamation of a State of Emergency allows the executive branch, be it the Mayor, Governor and/or President, to suspend the normal democratic process involving the legislative branch, and act decisively where conditions of extreme peril to the safety of persons and property have arisen. In short, democracy takes time and disasters such as pandemics can’t wait.

Q: How long can they enforce “Shelter-in-place?”

A: The temporary suspension of any statute, ordinance, regulation, or rule shall remain in effect until the order or regulation is rescinded by the Governor, the Governor proclaims the termination of the state of emergency, or for a period of 60 days, whichever occurs first. The Governor can continue the state of emergency through another proclamation if necessary.

Q: I was laid off and can’t pay my rent. Am I getting evicted?

A: On March 13th, the Mayor issued a Second Supplement to the Emergency Proclamation enacting a moratorium on evictions for non-payment of rent. Additionally, she prohibited the discontinuation of water, sewer and power services for non-payment of utility bills.

Q: My business is considered “non-essential” and if this goes on longer than a month, I won’t be able to make rental payments. What can I do?

A: On March 18th, the Mayor issued a Fourth Supplement to the Proclamation providing a temporary moratorium on eviction for non-payment of rent by commercial tenants directly impacted by the COVID-19 crisis with gross revenue at or below $25,000,000.00. This Order precludes eviction of a commercial tenant for failure to make a rent payment after March 17th, without providing written notice and at least one month to “cure” the breach/non-payment by paying the back rent or by providing documentation that the failure to pay was due to a financial impact from COVID-19 because of a substantial decrease in business income due to illness, reduced hours or consumer demand, or temporary closure because of orders of the PHO. If the tenant provides that documentation, they are given an additional month and the landlord has to engage in good faith discussions to attempt to develop a payment plan. If a payment plan can’t be agreed to, the tenant needs to either pay the rent or provide further evidence of a continuing inability to pay due to COVID-19, which then allows for an additional month to pay. Thereafter the tenant may obtain additional one month extensions by providing updated documentation each month for a maximum of six months.

Q: What are the results of the Governor’s Proclamations during this State of Emergency?

A: The Governor’s proclamation paved the way for the closure of schools, shelter-in-place orders, admittance of out of state health care providers to treat patients, funds and personnel to support relief efforts of local authorities, access to any state owned properties, including state fairgrounds, required by the Office of Emergency Services to respond to the COVID-19 epidemic, imposition of anti-price-gouging laws, and funding for purchase of medical supplies and medications. Additionally, all residents have been ordered to heed the advice of emergency officials to protect their safety and the safety of others.

Q: I work part-time do I get sick time too?

A: All California employees accrue sick time at their jobs. At a minimum, an employee must accrue one hour of paid sick leave for every 30 hours worked. For a regular full-time employee, that works out to approximately 1.3 hours of sick time earned each week or 5.3 hours each month. This leave may be used for the diagnosis, care or treatment of an existing health condition, or, importantly, preventative care for you or a family member.

Q: I don’t have enough sick time left and I can’t afford to have unpaid leave. What can I do?

A: In San Francisco, local government has, in response to the pandemic, implemented an ordinance guaranteeing an additional five days of paid leave for each San Francisco worker affected by COVID-19. (Workers and Families First Program.) Importantly, this program will also provide support for local businesses by using funds specifically reserved for small businesses (50 or fewer employees) to contribute up to 40 hours at the $15.59 minimum wage per employee to help cover the impact of the additional sick leave will have on employers.

Q: I tested positive for coronavirus and I don’t have enough sick-leave days. What are my options?

A: The California Family Rights Act (CFRA) allows leave from work for up to 12 weeks for serious medical issues. This type of leave may be available for workers affected by COVID-19. Not all employers must allow this leave, and not all employees are eligible.

Q: I have health care coverage through Medicare. Will I still have to pay for COVID-19 screening?

A: For individuals with health care coverage through an employer, Medi-Cal, Medicare, or Covered California, the state has eliminated all cost-sharing requirements on medically necessary screenings and COVID-19 testing, as well as urgent care, hospital and provider visits for the purpose of screening and/or testing for COVID-19, meaning co-pays, deductibles and coinsurance payments that would normally be billed to patients in such instances will be
Waived. The state has also mandated that medically necessary screenings and testing for COVID-19 will be free of charge. This will also apply to telehealth services as well as in-person doctor and urgent care visits. Such telehealth services are being expanded statewide for individuals unable to visit their doctor in person.

Q: Due to the shelter in place order, I became unemployed and now I don’t have health insurance. Where can I get health insurance?

A: In light of the statewide “shelter in place” order, a great majority of individuals in the hospitality, restaurant, retail, and event industries are now without health insurance. Covered California and the California Department of Health Care Services have joined forces to assist unemployed residents with a path to insurance through state programs like Medi-Cal and Covered California. Covered California has announced it is extending its typical
enrollment period to June 30. Individuals who sign up through Covered California, will have access to private health insurance plans with monthly premiums that may be lowered in response to the crisis, depending on annual income. Once a plan is selected, coverage would begin on the first of the following month, to help avoid gaps in coverage. Residents can visit CoveredCA.com to learn more.

Q: I am currently not a legal resident in California. Where can I get health insurance?

A: California’s undocumented population can avail themselves of certain public programs like Medi-Cal, which does not exclude any group from accessing emergency care so long as they meet the basic eligibility requirements. Emergency care coverage will apply to those who require medically necessary testing and health care related to COVID-19, even if such individuals are undocumented. Unlike with the Covered California program, residents may apply for Medi-Cal at any time. If an individual is determined to be eligible for Medi-Cal,
coverage begins immediately and is effective back to the first day of the month in which the application was submitted. Those already enrolled in the Medi-Cal program that are up for renewal will have their coverage extended, as a 90-day hold has been placed on Medi-Cal renewal reviews. For further resources on the Medi-Cal eligibility requirements and application process visit dhcs.ca.gov.

Q: I am currently a senior over the age of 65. I live in a rural area and it is hard for me to move around. Which health care coverage would be best for me?

A: California’s Medicare program, a service offered to any California resident over 65 or with a qualifying disability, provides health care coverage for all lab tests and medically necessary hospitalizations related to COVID-19. Medicare also covers telehealth services such as “virtual check-ins” with an individual’s established physician and written communication between patient and care provider through online portals. These telehealth resources are especially useful for Medicare recipients who live in rural areas or who may have symptoms and simply wish
to check in with their physician for reassurance or guidance. For further resources on how the state run Medicare program is responding to COVID-19, visit medicare.gov.

Q: Where are the Bay Area testing labs located?

A: Bay Area testing labs are currently located in San Francisco, Alameda, Richmond, Contra Costa County, San Mateo, and Solano County.

Q: Why have they restricted visitors and volunteers at nursing facilities?

A: The Centers for Medicare & Medicaid Services (CMS) are now significantly restricting visitors, volunteers and nonessential personnel as well as communal activities inside the nursing homes. These restrictions make sense with reports of large numbers of cases of COVID-19 spreading quickly through nursing homes. Indeed, the Centers for Disease Control and Prevention (CDC) has indicated that sick visitors and health care personnel are the most likely source of introduction of the coronavirus into nursing homes.

Q: What is the easiest way to recognize elder abuse?

A: Generally speaking, the easiest way to recognize elder abuse is by spending time with your loved one regularly. Visiting him or her at the facility at various times of day and days of the week will give you a better sense of your loved one’s daily routine. With the statewide “stay at home” order in place for the foreseeable future, this will be much more difficult to do. Thus, maintaining regular communication by phone or other means while practicing social distancing with your loved one is going to be extremely important during this time.

Q: What are the common signs of elder mistreatment?

A: According to the California Department of Justice, some common signs of elder mistreatment include the following: poor hygiene or skin condition, untreated medical conditions, unexplainable dehydration or malnourishment, unusual confusion, depression, or withdrawal. By knowing what to watch out for, you may be more likely to identify abuse if it occurs. Since mistreatment commonly escalates, this can be important in order to ensure any abuse that occurs is immediately caught and stopped.

Q: What are the types of elder abuse?

A: Elder abuse comes in many forms and an individual can face one type of abuse or multiple types at once.

These include but is not limited to:

Neglect: the failure to provide adequate care on the caregiver’s part which can involve failing to provide social stimulation, medical care, nutritious food or clean water, or attending to the individual’s hygiene needs;
Physical abuse: any instance of hitting, kicking, or other physical harm inflicted on an individual as well as denying an individual food or medical care;
Emotional abuse: abuse that damages the victim’s self-esteem and makes him or her feel unwanted and unloved;
Psychological abuse: abuse that involves manipulating the victim’s sense of reality and his or her perception of events;
Sexual abuse: anytime the victim is subjected to unwanted sexual contact or sexual relations to which he or she cannot consent, he or she faces sexual abuse; and
Financial abuse: the mistreatment that involves taking money and valuables from elderly victims, either through direct or deceptive means.

Q: I have a loved one currently living in a nursing home. I believe that the nursing home has not taken the correct precautions to protect them from COVID-19. What should I do?

A: If you suspect that your loved one has been subjected to any or multiple types of elder abuse, or if you care concerned that the nursing home he or she is in has not taken the precautions it should to protect your loved one from COVID-19 such as taking the steps to restrict visitors and nonessential personnel from being in the facility or failing to provide personal protective equipment to health care personnel, don’t hesitate to take action. If you believe that your loved one is in immediate danger, call 911. If there is no immediate risk of harm, report the facility to Adult Protective Services, a department with the California Department of Social
Services.

Q: I believed my loved one was subjected to elder abuse and neglect. Who can I contact to pursue compensation from the party responsible for the abuse?

A: California law provides for recovery of damages for pain and suffering, economic damages and punitive damages when there has been recklessness, fraud and/or patient abandonment. The Dolan Law Firm can help you identify all of your loved one’s damages and pursue compensation for them from the party responsible for the abuse.

Contact the Dolan Law Firm

The cases above are just a small sampling of the successes that the Dolan Law Firm has had since we started in 1995. As the settlement and verdict amounts prove, we have the skills necessary to prevail in even the most complex cases. Contact The Dolan Law Firm for a free case evaluation by calling 888-452-4752 or emailing us.
Se habla español.

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:

Legal Protections for Employees During COVID-19

Workers’ Compensation Could Cover COVID-19 exposure

Travel Refunds During COVID-19

COVID-19 and Your Employment Rights under FEHA and FFCRA

Written By: Christopher B. Dolan and Mari Bandoma Callado

Health and safety measures at the voting booth

By Christopher B. Dolan and Vanessa C. Deniston:

Steps to Deal with Cyberbullying in School

What is the Family First Coronavirus Response Act (FFCRA), Exactly?

Who is Eligible for Paid FMLA Leave?

What Benefits are Available under the Expanded FMLA?

New protections for S.F employees tested for COVID-19 on the job

Written By: Vanessa C. Deniston and Christopher B. Dolan

Available COVID-19 Resources in Response to your Legal Questions

THE LAW IN THE STATE OF EMERGENCY

Discrimination and Retaliation in Reducing Workforce are Unlawful

Employees Affected by COVID-19 are Entitled to use Sick Leave

California Expands Health Care Resources for Covered, Uninsured and Undocumented Residents Affected by COVID-19

Elder Abuse and Neglect During the Coronavirus Crisis

Growing Anti-Asian Sentiment, Hate Crimes and Acts of Terrorism During the COVID-19 Crisis

THE LAW IN THE STATE OF EMERGENCY

Discrimination and Retaliation in Reducing Workforce is Unlawful

Employees Affected by COVID-19 are Entitled to use Sick Leave

Employees who Contract Covid-19, or whose family members do, may be entitled to leave under the California Family Rights Act

California Paid Family Leave

California Expands Health Care Resources for
Covered, Uninsured and Undocumented Residents Affected by COVID-19

Elder Abuse and Neglect During the Coronavirus Crisis

Recognizing Elder Abuse During the Coronavirus Crisis

Types of Elder Abuse

Reporting Elder Abuse and Nursing Home Neglect

California Law Protections from Elder Abuse and Neglect

Growing Anti-Asian Sentiment, Hate Crimes and Acts of Terrorism During the COVID-19 Crisis

Discrimination by Business Establishments

Workplace Discrimination and Harassment

Hate Crimes

Ralph and Bane Acts

Related Causes of Action

FAQs

Contact the Dolan Law Firm

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