California Lifts its Mask Mandate, But What Does This Mean?

Written By Christopher Dolan and Allison Stone

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

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

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

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

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

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

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

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

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

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

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Recognizing Mental Health Awareness Month

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

 

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

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

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

How do I seek help for mental health?

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

For more information, visit:

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

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

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Seeking Mental Health Accommodations Post-Pandemic

Written by: Vanessa Deniston and Christopher Dolan

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

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

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

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

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

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

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

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

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Employers: Requiring COVID-19 Vaccination

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

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

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

Disability Accommodation

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

Religious Accommodation

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

But I Don’t Trust the Vaccine — Employee Refusal 

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

Employer Inquiry

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

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

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

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

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

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How to Safely Reopen Schools During COVID-19

Written By Christopher B. Dolan and Allison L. Stone

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

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

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

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

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

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

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

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

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

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

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

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Reckless Driving during COVID-19

Written By: Christopher B. Dolan and Megan Irish

Kara from San Francisco writes:
I’m so frustrated by the attitudes of drivers on the road these days, what are people thinking? It seems like people are zooming past, zigzagging in and out of the lanes, and just going too fast. Don’t people know it’s dangerous to drive like that?

Dear Kara: You are right and the statistics are supporting your observations. People are driving faster and more erratically. Following several years of declining fatalities, the pandemic has killed in more ways than just the virus. When people were ordered to stay at home and shelter in place, many did.

Overall, the National Safety Council’s numbers are on target to show that 13% less miles were driven in 2020 as compared to 2019; that is clear evidence of many Californians’ abiding by the stay-at-home orders. Nonetheless, despite fewer miles driven, more people died in car crashes in 2020 than in 2019.

How is this possible? The simple answer is speeding.

Nationally there were 42,060 traffic collision deaths in 2020 as compared to 39,107 in 2019. Only nine states had fewer deaths in 2020 than in 2019. Of the over 42,000 deaths in the United States, 3,723 of these deaths occurred on California roadways. Many of these lives were lost due to reckless driving and speeding.

The National Safety Council tracks collisions on a national level and breaks down the collisions by state. The California Highway Patrol, Office of Traffic Safety, also tracks traffic collisions within California and analyzes how and why collisions occurred.

Unfortunately, with fewer cars on the roadway, it seems some drivers saw the less crowded roadway as an invitation to speed. Many of those who decided to drive recklessly caused severe collisions with fatalities to themselves and/or others.

Law enforcement made efforts to ticket bad actors, and anecdotally police have related that they stopped more speeders and issued more speeding tickets in 2020 than in years past, but they were unable to stop everyone. For a “standard” speeding ticket, drivers can get a point on their driver’s license and often they can go to traffic school.

But, when a driver is more than a few miles over the speed limit, or has other aggravating factors such as alcohol and driving under the influence, a driver’s actions can be considered “reckless.” California Vehicle Code Section 23103 defines reckless driving as “a person who drives a vehicle upon a highway in a willful or wanton disregard for the safety of persons or property.”

There are severe consequences for reckless driving that will impact a person’s life and finances. For instance, a driver can be sentenced to serve between five and 90 days in county jail. The fines can be up to $1,000 (CVC 23103(c)), and a conviction would also get them two points on their DMV record.

A reckless driving conviction will also drive up drivers’ insurance premiums and their car can be impounded. Retrieving an impounded car is expensive, as some impound yards charge as much as a $125 for the tow, a hundred or more in “release fees” and daily storage fees on top of that. Additionally, a driver’s license can be revoked by the DMV for up to six months, which would interfere with a person’s commute to work, and obligations to family members. Choosing to violate the suspended license would have a whole host of other severe consequences.

The reckless driving charge can be charged as a felony if it causes bodily injury. In addition to the monetary consequence of fines, court fees and increased insurance premiums, such a conviction can lead to anywhere from 16 months to three years in prison. Even if a driver only gets set with a misdemeanor, it will show up on background checks, and can deter a future employer from selecting them for a new job. Reckless driving can have severe and lasting consequences for a driver.

Separate and apart from reckless driving, there is “excessive speeding” which is driving at over 100 mph. Excessive speed can be an infraction under CVC 22348(b) and carries fines up to up to $500. If a driver is going over 30 mph above the freeway speed, or 20 mph on a roadway it can also be a criminal offense. Excessive speeding fines range from $900 for first time offenders to $4,190 for repeat offenders.

A driver’s license can be revoked from 30 days for a first-time offense, or up to a year for repeat offenders. As well, there can be two points added to a driver’s record with the Department of Motor Vehicles and increased insurance premiums.

With all of this one would think that responsible driving should be the rule, not the exception, and yet it often is not. Be safe out there.

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Parents Rights on Children Education during COVID-19

Written by Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Sunny:

Dear Mr. Dolan: I am a mother that lives in San Francisco and I have two children. My son is in seventh grade and my daughter is in high school. Both my husband and I work full-time, and my husband is required to go into his office. My employer has allowed employees to work remotely since the pandemic began. While I appreciate the hard work teachers have put into their instruction during this pandemic, both my children are falling behind and having issues emotionally with being confined to a tiny home. Early on, my son had an IEP (Individualized Education Plan) that then became a 504. (A 504 plan provides services and changes to learning environments to let students with a disability learn alongside peers.) My son has transitioned out of the 504, but now his issues have returned, and are worse. I am exhausted trying to work, help my kids learn and maintain any sanity. I read recently that we will transition soon back to full-time instruction in California, yet I am not getting a clear picture from our school district. The possible return makes me both excited and nervous. I am rambling, but I guess my question is, what are our rights as parents to our children’s education?

Dear Sunny: I am so sorry to hear that your children are struggling. The 2020-21 school year has been a challenging time for parents and working parents. Your question, although it seems simple, is quite complicated. We found ourselves trying to juggle a pandemic and our children’s educational instruction. California has been a hotbed for COVID infections and has endured complete stay-at-home orders and modified stay-at-home orders, which frequently vary between counties. Both private and public schools have sought educational waivers to reopen under state guidelines issued by the California Department of Public Health. While private schools have been granted waivers, the public school system seems to be taking longer to be granted exemptions, and these students have primarily been remote for a year. The staff of our school systems and their unions also has to examine the fact that educators weren’t placed on the first tier of immunizations. Many classrooms did not comply with distance guidelines, and schools didn’t have a plan for outbreak tracking/containment. Getting one student through the different periods in a day became impossible without exposing everyone multiple times a day.

The California Constitution has guaranteed children a free primary and secondary education since 1879 under Article IX, Section 5. The article states:

“The Legislature shall provide for a system of typical school by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.”

Therefore, your children are entitled to a free education which includes computers and materials as needed to be supplied to them under California Education Code Section 43503. But how does one provide a proper education during a worldwide pandemic?

Under the state Education Code 43500, distance learning means instruction in which the pupil and instructor are in different locations and pupils are under the general supervision of a certificated employee of the educational agency. Because of the outbreak, schools were forced to go remote entirely and then attempt a hybrid approach at times for special education.

Parents have struggled with the time dedicated to online courses. I have heard parents complain that courses have either been too much or lack proper support and understanding for complicated subjects such as math and chemistry. Sadly, just as the term “distance learning” is new to the Education Code, the mixture of remote, hybrid, and in-person instruction is something that we had lacked an outline for before this pandemic. Due to health concerns with COVID-19, in-person instruction has been limited because the state guidelines could not be followed in most middle schools and high schools. Elementary schools had more freedom due to the curriculum being primarily based on a single classroom assignment. Many elementary schools have now opened or are scheduled to open, with districts considering what to do with middle-school and high-school students.

The Education Code provides free education; however, it does not dictate how a school district administers a program (whether through remote, hybrid or in-person). In-person instruction becomes even more complicated during a pandemic when IEPs (Individualized Education Programs) and 504 plans are in effect. These students need in-person instruction, sometimes with further accommodations and often cannot progress with complete online instruction.

Sadly, besides providing free instruction, there is very little guidance about mandating in-person education instead of remote learning. We have to look to the state’s opening guidelines and the U.S. Centers for Disease Control and Prevention’s recommendations and try to do the best we can with weighing our children’s emotional and physical health with the value of being in a classroom. I am hopeful that life will return to life, albeit a different one, shortly.

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Cyclist Deaths Remain High During COVID-19

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Wendy L. in Hayes Valley who asks: I am an avid bicyclist and enjoy taking leisurely rides through the City. Since San Francisco has enforced lockdowns due to COVID-19, traffic has decreased and downtown areas feel like ghost towns. However, I read news reports stating that despite the decrease in traffic, the number of cyclists’ deaths remains alarmingly high. I would have expected the number of cyclists’ deaths to decrease as fewer cars are on the roadways. If this is true, what are some of the reasons that bicyclists continue to die at high rates?

Dear Wendy: Thank you for your question. You are correct. Although traffic has significantly decreased since the stay-at-home orders were issued, bicyclists’ deaths remain alarmingly high. According to data from the National Highway Traffic Safety Administration (NHTSA), 2018 was the deadliest year for bicyclists since 1990, with 857 bicyclists’ deaths. In 2019, there was a slight improvement, but the number of fatalities remained at a high 846 bicyclists’ deaths. Due to the disturbingly large number of bicyclists’ deaths in 2020, the magazine Outside committed to tracking every bicyclist death caused by a vehicle collision.

Outside partnered with the nonprofit BikeMaps.org (“BikeMaps”), founded by Trisalyn Nelson, a professor in geographic information science at the University of California, Santa Barbara. BikeMaps has been collecting crowdsourced information about cyclist involved vehicle collisions and traffic hazards such as potholes and road construction in the United States since 2014. Outside and BikeMaps found that in 2020, there were 697 bicyclists who were killed in car crashes. Although this is a decrease from 2018 and 2019, the number of deaths is concerning because it remained incredibly high despite the COVID-19 lockdowns.

According to Outside and BikeMaps, factors contributing to the high rate of bicyclists’ deaths include poorly designed roads, high speed limits, and distracted drivers. For example, they found that the most dangerous road for a cyclist is what Outside and BikeMaps define as an “Arterial Road.” An Arterial road is a busy, multilane street, with traffic signals at intersections and speed limits exceeding 30 miles per hour. Arterial roads account for 65% of the fatal crashes per the data collected and analyzed by Outside and BikeMaps. BikeMaps also noted that cars making unprotected left turns (those with no dedicated left-turn light) are especially dangerous to cyclists and pedestrians because the driver is concerned with oncoming traffic and is not looking out for cyclists or pedestrians.

Another reason for the high number of bicyclists’ deaths in 2020 is that there has been a surge in bicycle sales, which translates to more cyclists on the road. Due to the pandemic, a significant number of people have turned to riding bicycles in order to avoid public transportation and to exercise safely. The NPD Group, Inc., one of the largest market research companies that monitors consumer purchase data, reported that in April of 2020, the cycling industry reported a growth in sales of 75%, generating an unprecedented $1 billion for the month. This surge continued throughout the year. NPD reported that from January through November of 2020, $4.9 billion worth of bikes were sold in the United States. Strava, a popular activity tracking application used by cyclists, reported a 179% increase in membership, further affirming the increasing number of people riding bikes. So, even though there is less traffic, the high number of deaths is impacted by the fact that there are more cyclists on the road.

 Based on the data collected by Outside and BikeMaps, fewer cars on the roads does not mean fewer bicycle collisions. For that reason, we encourage all bicycle riders to wear helmets and continue to exercise and bicycle safety.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills, and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment, and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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No Shoes, No Shirt, No Mask = No Service

Written By: Christopher Dolan and Lourdes De Armas

Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.”  This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm as is the phrase.

Similar reactions were heard in the ’80 when California enacted a variety of laws. In 1984, California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that motorcycle riders under age 18 must wear helmets. 

Even in the face of scientific studies showing that seatbelt and helmets save lives, there was the outcry of “the government” interfering with your lives.

Still if you are driving a car and have no proof of insurance, you are not exposing anyone to anything lethal. If someone passes you riding a motorcycle without a helmet, their risk exposure is greater than yours- the same for no wearing a seatbelt.

Now, a whole lifetime later, we buckle up as soon as we sit down in a vehicle, make sure that our kids are wearing helmets, and do not dare drive without insurance. We would not even think about walking into a store with bare feet and no shirt on. All of these have become second nature. No personal liberties have been affected and no one has been hurt by following the rules.

Until the pandemic, we gave little thought to “No shirt, no shoes, no service.” The same should be for masks. Businesses have the right to refuse service to those that refuse to enter without masks. Although it is understandable that culturally, the U.S. wasn’t really prepared to wear masks, unlike some countries in Asia where the practice is more common- it has been almost a year since the pandemic paralyzed the nation and wearing a mask should be second nature. Yet, we are still having this debate.

Mask compliance has become a political issue instead of a health issue despite the evidence. “This is a life-and-death issue. Masks, physical distance and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine”, according to Dr. David Abrams, NYU School of Global Public Health. 

Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization recommend masks for the general public. Keeping in line with the experts, California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.

Analysis of data from Johns Hopkins University, California ranked No. 1 among the states where coronavirus was spreading the fastest on a per-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out “There’s a certain bravado of being angry and defying requirements to wear a mask.”

  • “Costco Karen,” for instance, staged a sit-in in a Costco entrance after she refused to wear a mask, yelling “I am an American … I have rights.”
  • An unruly crew marched through Target yelling “Take off your masks, we are not going to take it anymore.”
  • “Burn the Mask” protestors blocked the entrance of Trader Joe’s in Fresno to causing the store to close early.
  • A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a “mask Nazi.”
  • In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to be barricade themselves inside stores to keep out protesters.

Despite the protestations, wearing a mask just like wearing seat belts, shoes and a shirt, does not violate your rights. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government. 

To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned.  The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.” 

The case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others.

For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make “No Shirt, No Shoes, No Masks, No Service” the norm in California.

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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. 

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