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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Workers’ Compensation Could Cover COVID-19 exposure

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.

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Travel Refunds During COVID-19

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. 

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COVID-19 and Your Employment Rights under FEHA and FFCRA

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.

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Health and safety measures at the voting booth

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.   

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Steps to Deal with Cyberbullying in School

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: 

  1. places the pupil in fear of harm to that pupil’s person or property, 
  2. causes a reasonable pupil to experience substantial detrimental effect on the pupil’s physical or mental health, 
  3. creates a reasonable pupil to experience significant interference with the pupil’s academic performance, and 
  4. 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. 

 

 

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

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:

  1. providing for their families and
  2. 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: 

  1. 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,
  2. 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:

  1. 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.
  2. 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.

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