Employment Law | Dolan Law Firm

Safely Returning to Work

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: Christopher B. Dolan

This week’s column is a follow-up to last week’s article on workplace violence including shootings. That column spoke about the rights and responsibilities of a business owner to create a safe workplace.

This column will inform you as to how you, as an individual and/or employee, can seek protection if you are concerned about workplace violence or the potential for violence from a family member or co-employee.

While employers are able to obtain Workplace Violence Restraining Orders, employees (and individuals outside of the workplace) are able to obtain Civil Harassment Restraining Orders to protect themselves against stalking, harassment and threats of violence. California Code of Civil Procedure (C.C.P.) Section 527.6 provides an individual the right to obtain a temporary restraining order, and if warranted, a three-year restraining order and in some instances, criminal penalties may apply. The basis for a restraining order can includes a course of conduct that constitutes harassment of an individual via phone, text, email, or other method of communication (California Penal Code Section 653(m)), stalking (California Penal Code Section 646.9), or harassment (C.C.P. Section 527.6 (b)(3). What follows are the definitions of these behaviors so that an individual who suspects violence of this sort can understand the law.

Course of Conduct
As stated in the California Code of Civil Procedure, “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”

Electronic Harassment
The California Penal Code states that “Electronic harassment” is when someone, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor.

Stalker
Under the law, a “stalker” is someone who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family. In addition to obtaining a restraining order against a stalker, the stalker may also be guilty of a misdemeanor.

Harassment
“Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.

Credible Threat of Violence
“Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for the person’s safety or the safety of the person’s immediate family, and that serves no legitimate purpose.

There is a form which an individual can fill out, a Civil Harassment Training Order, created by the Judicial Council of California, Form CH-100. Once Form CH-100 is stamped by the Court, a Temporary Restraining Order Pending Hearing, may be obtained and provide protection for a period of time up to 25 days by which time a hearing for a permanent injunction must be set where the Respondent may present evidence arguing against the execution of a permanent restraining order.

For a temporary or permanent Order to have an effect, it must be served on the person to be restrained (the Respondent) and the police. You should not be the one to serve the Respondent as they may react violently. A Temporary Restraining Order goes into effect immediately and the Respondent (harasser, stalker, etc.), is immediately ordered to stay away from the protected parties (which can include family members and animals). The Temporary Restraining Order can include orders enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner. The Order can also result in the Respondent having to surrender any guns, firearms and ammunition they may possess. Violation of a temporary or permanent restraining order can result, fines, arrest and incarceration.

Written By: Christopher B. Dolan

Following the horrific workplace shooting in San Jose this past week, NBC Bay Area Investigative Journalist Stephen Stock reached out to me to ask: “What are the rights of employees, and what are employer responsibilities when there is a threat of workplace violence?” I provided him a response that did air, but given the constraints of the evening news, I think it is important to provide a comprehensive analysis to the readers of this column.

According to data tracked by Everytown for Gun Safety (everytown.org), there have been 37 mass workplace shootings in California since 2009. Sadly, and notably, five of those mass murders occurred in just the last 10 weeks. Employees now, rightfully, are on high alert for signs and behaviors which may foretell a pending attack. According to experts, the following behaviors may indicate warning signs of pending workplace violence: threats of violence; intimidation; speaking about weapon ownership; intimidation; paranoia; angry and argumentative behavior; antisocial behavior like commenting favorably about violence in the news; and vindictive behavior such as saying, “he will get his,” or, “I’ll make her pay for that.” The United States Department of Labor has an excellent publication on the issue of workplace violence called the “DOL Workplace Violence Program.” It provides a guide that can be used in judging workplace behavior and what to look out for to predict and prevent workplace violence.

California Labor Code Section 6400 states that, “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Case law has held that Section 6400 creates an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace. Therefore, if there are threats of violence, or reasonable fears for your safety in the workplace, report it to your employer immediately. It is best to do so in writing so that a record is established.

An employee may not be forced to work in an unsafe work environment and, pursuant to California Labor Code Section 6310, it is unlawful for an employer to discipline or discharge any employee for making a complaint of an unsafe working condition to them, Cal-OSHA, or any other government agencies with a responsibility to protect workers. My office has represented workers who have refused to go back to a jobsite where their foreperson had made threats of violence or, in some instances, where they have been struck by an employee or co-worker. We have also represented workers that have been retaliated against after making a complaint to their employer about unsafe workplace conditions and/or threats of violence in the workplace. Likewise, we have represented workers fired after calling the police following an assault by a co-worker on the job. Employees who are retaliated against for making complaints of an unsafe workplace can recover economic damages such as lost pay, medical expenses, anxiety, grief, humiliation, and emotional distress. Tragically, I have also represented the family of a woman who, along with her boss and another supervisor, were shot and killed by a disgruntled employee who had made threats of violence which the employer did not take seriously.

Employers have a legal procedure that they can employ to prevent workplace violence. Pursuant to California Code of Civil Procedure (CCP) Section 527.8, “any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an order after hearing for a permanent restraining order on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.”

“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email. “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.

A Temporary Workplace Restraining Order can be filed using a form which can be found here. A workplace Restraining Order can ban an individual from coming near the workplace, near an employee, or their families, and it requires that the restrained person surrender any firearms that they may possess to the police. A temporary restraining order can be obtained by an employer, immediately, by filing Form WV-100, with the local court and serving the same on the employee and the local police. After a hearing, the temporary order can be extended for a period of up to three years.

Workplace violence is becoming an epidemic. No one should take threats lightly. Employees should report the warning signs and employers should act promptly. Reach out to a qualified trial lawyer to assist you, if necessary, to take action against your employer, should they fail to meet their responsibilities, or should you suffer retaliation If an employer fails to take immediate and appropriate action; an employee may seek a protective order themselves. That will be discussed in next week’s column.

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.

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

This week’s question comes from Jim C. in Bernal Heights who asks: I’m currently working on a job site in the city. We are building a subterranean parking garage and we use heavy equipment every day. The guy that drives the excavator is not the most reliable and occasionally he doesn’t show up to work. On these occasions, my supervisor, the foreman, who I am fairly certain has not been trained on the equipment, hops in and operates it in his place. I have also noticed that the lights and the back-up alarm aren’t working. The foreman almost backed up into the cement mixer yesterday, which would have been disastrous. Having worked on job sites for over a decade, I know this isn’t safe, but I am afraid I’ll be fired if I bring this up to the foreman’s supervisor. No accidents have occurred yet, but I’m worried. How should I address these safety risks?

Dear Jim C.: Thank you for your question, Jim. You are right to be concerned. Work environments, especially construction sites, are often rife with safety hazards that must be closely monitored. Certainly, if your foreman is operating heavy equipment and is not trained on the equipment, this not only exposes your company to liability should anything go wrong, but also poses a significant risk to you and others on the job site. This, compounded with some of the excavator controls not operating properly, causes serious safety risks. There are a number of steps you can take to ensure the safety issues are addressed.

The key is your initial complaint must be either verbal or written to someone in a position of authority, preferably the foreman’s supervisor, and must be framed in the context of work safety. If you told the foreman supervisor, for instance, that you thought it was unprofessional and unfair that the person actually trained on the excavator was permitted to skip work without repercussions, this would not be enough in itself to alert your employer you are making a workplace safety complaint. The best course of action is to put your concerns in writing, preferably in an email which affixes a date and time stamp, and share them with the foreman’s supervisor. Be specific, citing examples of the unsafe conditions or conduct you observed and when you observed it.

You may have some further hesitancy, as you aren’t positive the foreman isn’t trained on the excavator. Don’t let this deter you from making a complaint if you have reason to believe he is not trained or if it appears he is operating the excavator in an unsafe manner (i.e. using heavy equipment without functioning back-up warnings, failing to wear proper safety equipment or follow proper protocols concerning the equipment.) You may not have all the information necessary to make a definitive determination whether or not the conduct is actually safe, but the law encourages employees like yourself to speak up if you have reason to believe it is unsafe. In other words, if you see something, say something.

While construction zones are typically the most common work environment where safety hazards arise, the law on unsafe work conditions is certainly not confined to any one kind work environment. Unsafe conditions can arise in many different contexts in many different environments. Unsafe conditions can range from poor lighting conditions in a staff parking lot located in a high crime area, to exposure to toxic chemicals in a confined space, to a co-worker displaying violent tendencies or bringing a firearm to work.

Your fear of making complaints is understood. If you are hesitant to tell your employer, you have the option to make an anonymous complaint to Cal/OSHA. They are the government entity tasked with making sure workplace safety and health regulations are properly observed.

However, California law protects workers who complain of safety issues. Under the California Labor Code, employees who come forward and voice good faith safety concerns about their workplace are protected from retaliation. Specifically, CA Labor Code §6310 prohibits an employer from discharging or otherwise discriminating against any employee because the employee has made any oral or written complaint about workplace safety. Three elements are required to support a retaliation claim for raising workplace safety complaints:

(1) the employee must have made complaints about workplace safety to his employer;

(2) the employer must have then subjected him to an adverse employment action; and

(3) there must be a causal link between the workplace safety complaint and the employer’s action.

Once you make the complaint, if you find that you are suddenly being treated differently, such as your hours being cut, you are disciplined for minor issues, or you are treated with aggression or hostility, you may be experiencing retaliation related to your complaint. This is prohibited by law and you should report the retaliation to the foreman supervisor immediately. If you are experiencing harassment or have suffered a demotion or termination following a workplace safety complaint, you should reach out to an attorney for assistance as soon as possible.

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties.

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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.

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.