COVID-19 | Dolan Law Firm

Dolan Law Firm Wishes You a Safe Labor Day Weekend

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

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

Social Gatherings

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

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

Drive Safely

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

Swim and Boat Safely

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

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

Written By Christopher Dolan and Lourdes De Armas

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

Thank you for your question James.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written by Christopher B. Dolan and Kimberly Levy

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

Thank you for your important questions, Matty.

Recall Vote Background:

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

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

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

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

Logistics of the Recall Election: Understanding the ballot

The recall ballot asks two questions:

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

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

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

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

After the Election

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

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

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

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

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

Preserving and Restoring Voting Rights Must Become a Priority:

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

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

Written By Christopher B. Dolan and Katelyn P. Dembowski

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

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

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

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

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

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

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

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

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Written By Christopher Dolan and Taylor French

Debra M. from Daly City writes:
I have often noticed people serving alcohol to individuals who had too much to drink. Are there certain laws that can hold people accountable for providing alcohol to people who are clearly intoxicated and should probably stop drinking?

Dear Debra: As the COVID-19 era’s restrictions ease and we gradually return to our lives outside of the home, it is important to be mindful of the threat posed by intoxicated drivers on the road. Too often, tragedy strikes, and an innocent person is injured or killed by a driver who was overserved at their local bar, restaurant, or other social gathering. When this happens, the question of whom can be held civilly liable presents itself.

Unfortunately for victims and their families, California law prohibits holding someone civilly liable for having overserved alcohol to an adult, which subsequently led to an injury or death. This is commonly referred to as Dram Shop Immunity, in the case of commercial vendors, such as bars, liquor stores, restaurants, etc.; or Social Host Immunity if involving a private individual. While overserving alcohol to an adult may result in an arrest and misdemeanor conviction, punishable by less than one year in jail, the individual or business cannot be liable for the monetary harms and damages suffered as a result of the adult’s actions.

Why does California law prohibit civil liability under these circumstances? Because, according to the Legislature and established case law, “the consumption of alcoholic beverages rather than the serving of alcoholic beverages is the proximate cause of injuries inflicted on others by an intoxicated person.” In other words, the drinker not the pourer is the responsible party.

However, Dram Shop Immunity and Social Host Immunity do not necessarily apply in the case of serving alcohol to a minor. If a business overserves a minor who was “obviously intoxicated,” which led to an injury or death, it can face civil liability for damages suffered as a result. Pursuant to Business and Professions Code section 25602.1,

“a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, … who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage … to any obviously intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.”

For the purposes of section 25602.1, the term “minor” refers to an individual under the age of 21.

A supplier of alcohol must use reasonable care to ensure the patron receiving the alcoholic beverage is not an obviously intoxicated minor. It is not enough for the supplier to simply know that the minor had been drinking. The minor must actually appear drunk. The courts consider many factors to determine whether the minor was “obviously intoxicated” when served the alcohol. These include whether the minor had alcohol on his or her breath, incoherent or slurred speech, poor muscular coordination, a staggering or unsteady walk or loss of balance, a ﬂushed face, bloodshot or glassy eyes, an unkempt appearance, or loud, boisterous, or argumentative conduct. The determination is made by “a reasonable person having normal powers of observation.”

In the case of a “social host,” Civil Code section 1714 provides for civil claims

“against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case, … the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.”

In other words, the minor need not be obviously intoxicated for the social host to face liability. The social host only needs to have known, or should have known, that the minor was indeed under 21.

California law provides for this exception involving minors for number of reasons:

Minors generally have less experience as it relates to both drinking and driving compared to adults and therefore require further safeguards
It is foreseeable that serving alcohol to an intoxicated minor will result in his or her increased or continued inebriation, which may result in damages, whereas it is not necessarily foreseeable in the case of an adult.

Regardless of potential liability, it is important that we stay vigilant, as drunk drivers will inevitably be out on the road. Equally important, however, is that we are proactive in preventing ourselves and others from driving after having too much to drink. Always arrange for a designated driver, taxi, or rideshare service for yourself and your friends. Remember, nothing is worth getting behind the wheel after drinking too much.

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Written by Christopher B. Dolan and Mari Bandoma Callado

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

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

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

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

MASKS AND PHYSICAL DISTANCING REQUIREMENTS IN THE WORKPLACE

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

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

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

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

VACCINATIONS

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

EMPLOYERS’ DUTY TO MAINTAIN A SAFE AND HEALTHY WORKPLACE

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

Written By Christopher Dolan and Allison Stone

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

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

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

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

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

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

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

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

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

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

Written by: 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.

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.

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.

DFEH Vaccine Guidance CLICK HERE
EEOC Guidance CLICK HERE

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