Recognizing World Braille Day

Written by Mari Bandoma Callado and DE&I Committee

The Dolan Law Firm recognizes World Braille Day to raise awareness for blind and partially sighted people.  

History

In December 2018, the United Nations General Assembly established World Braille Day to be observed annually on January 4 to raise the importance of Braille, which serves as a communication medium for blind and partially sighted people.  The date marks the birth anniversary of Louis Braille, who at the age of 15, invented the tactile representation of alphabetic and numerical symbols using six dots to represent each letter and number, and even musical, mathematical, and scientific symbols.

Being Visually Impaired During the COVID-19 Pandemic

People with disabilities are less likely to access health care, education, participate in the community, and be employed even under normal circumstances. For the visually impaired, the COVID-19 Pandemic showed just how critical it is to produce essential information in accessible formats like Braille and other digital accessibility or audible formats. Otherwise, people with disabilities could face a higher risk of contamination due to the lack of access to guidelines to protect and reduce the spreading of the pandemic. 

Workplace Accommodations

While the use of Braille appears to be declining in a literacy context, it remains a key tool in everyday life.  Advocates note that one of the key advantages in understanding Braille is the connection between literacy and employability. In 2017, the American Foundation for the Blind found that blind or visually impaired people in the United States have an employment rate of 44.2 percent, which is 35 percentage points lower than the employment rate at the time for those without disabilities. Additionally, there’s an $11,000 wage gap between those who read Braille and those who don’t according to a 2015 article published in the Journal of Blindness, Innovation and Research. Accordingly, individuals who experience blindness or visual impairment are more likely to experience higher rates of poverty. Thus, it is critical for employers to increase accessibility and opportunities by providing accommodations for job applicants and employees.

Employers are required to provide job applicants and employees with disabilities “reasonable accommodations” that allow them equal opportunities under the Americans with Disabilities Act (ADA), and/or the Fair Employment and Housing Act (FEHA). Accommodations vary depending on the needs of the applicant or employee but here is a list of examples of adjustments or modifications that are often requested by individuals who are blind or visually impaired:

  • Assistive technology like scanners, magnifiers, digital records, screen reading software, refreshable braille displays, and braille embossers;
  • An accessible website that allows workers to access employee portals, message boards, employment handbooks etc.;
  • Modification of an employment test or training;
  • Providing written materials in an accessible format e.g. braille, large print, or audio;
  • Guide dogs; and
  • Flexible schedule or work from home option.

Requests for accommodations are “protected”, meaning that if they are made in good faith, a worker may not lawfully be retaliated against for making the request. The request should also start what is known as the “good faith interactive process.” That is a process where the employer and employee work together to find a solution that works for both of them. The employer is not required to offer the requested accommodation but must work with the employee to determine whether there is a potential accommodation that will allow the employee to perform the essential functions of their position without creating an undue hardship on the employer.

If you believe that you have been discriminated against because of your disability, or if you need help requesting reasonable accommodations, contact the Dolan Law Firm’s employment attorneys.

Additional Information and Resources for people with visual impairment:

  • National Library Service (NLS) is a free braille and talking book library service for people with temporary or permanent low vision, blindness, or a physical, perceptual, or reading disability that prevents them from using regular print materials.  Note that digital braille and talking book titles can be downloaded from the NLS BARD (Braille and Audio Reading Download) service.
  • The Office of Services to the Blind (OSB) provides information and referral on services, programs, entitlements, and products of benefit to individuals who are blind or have low vision and their families or service providers. OSB staff assists such individuals in understanding the availability of services, their eligibility for services, and the purpose and scope of the various service programs.
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End of Year Holiday Parties Have a Unique Potential for Harassment

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Matthew H. from San Francisco: My workplace is hosting a Holiday party and they are telling us to keep it work related and professional, if we decide to attend. I don’t plan on getting crazy, but can they tell us how to act outside of our work schedule? It seems a bit much.

Dear Matthew,

Each year, the Dolan Law Firm receives multiple phone calls from people who have been the victim of harassment or discrimination at company sponsored holiday parties. The Holiday season is, once again, upon us, if everyone thinks ahead, many of the potential pitfalls can be averted and everyone can enjoy the party.

End of year Holiday parties have a unique potential for sexual harassment. Several factors combine to make sexual harassment a particular danger at these types of functions. Holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual can also add to the tendency for people to stray from workplace norms. This is often exacerbated by the often-accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

The good news is that employers can take steps to minimize the dangers of harassment. One thing an employer can do is include a copy of the workplace discrimination and harassment policies within any email or invitation, or a simple reminder that the policies in place at the worksite are applicable to the holiday party as well. Reminders that, although co-workers will be interacting socially, they must treat each other with the respect they have for one another in the workplace, can set clear guidelines for what is appropriate behavior. Archaic traditions that attempt to legitimize and trivialize harassment, such as kissing under the mistletoe, need to be left in the past.  

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person over-drinking at a holiday party.

Making sure, prior to the event, that everyone has a safe way to get home is also a big help. It can save an employee from getting a DUI. And, importantly, it can ensure that an intoxicated worker is not coerced to accept a ride home from somebody who makes them uncomfortable or who has ill intent.  

If the employer participates in a gift exchange or “Secret Santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history. Joke gifts can be fun and funny, but can also cross the line into scary intentional harassment. For example, Dolan Law Firm proudly represented an African-American woman who was singled out to receive a particular gift at a holiday party- she was purposely presented a purse embroidered like a confederate flag which contained pictures of the owner of the company dressed as Donald Trump in front of a sign indicating that the south would rise again. 

Another area of concern at holiday parties is religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to be involved in a religious based holiday, or to explain why they are not. We can all celebrate the end of the year, and most religions have some sort of a mid-winter holiday or day of remembrance. 

When employers make the expectations clear and plans for the well-being of all the employees, it allows everyone to enjoy the Holiday party. 

Each employee can also help. Everyone should have a pre-planned manner to travel home safely. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers. Enjoy the party. 

Hopefully, this year Dolan Law Firm does not receive one of those calls.

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Workers with Long COVID May Be Entitled to ADA and FEHA Job Protections

Written by Christopher B. Dolan and Mari Bandoma Callado

Sandra F. from Castro Valley writes: I work at a grocery store and contracted COVID-19 in July.  I have since tested negative and have been told by my medical provider that I am outside the contagious window for spreading the virus. Unfortunately, some of my symptoms have not gone away, and have been told that I have “Long COVID”. I still have fatigue, shortness of breath, lightheadedness or dizziness when I stand, headaches, loss of taste and smell, and brain fog. My job requires me to stand and walk a lot but I am having a hard time doing that for long periods of time before feeling overly tired, having shortness of breath, or getting dizzy. I am worried that I will fall or hurt myself. I would like to ask my employer for accommodation but I am not sure how. Will I get in trouble for asking for a chair or a different position while I am recovering? 

Thank you Sandra for reaching out. We are sorry to hear that you are still experiencing COVID-19 symptoms. As you mentioned, for some people, the symptoms from contracting COVID-19 do not go away and some studies indicate that 10% of COVID-19 patients may become long haulers. 

Is Long COVID Classified as a Disability Under the ADA or FEHA?

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect California workers from disability discrimination in the workplace. The ADA has classified Long COVID as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”

 Under the FEHA, Long COVID is also classified as a disability but the FEHA requires only that a mental and physical disability “limit” a major life activity (not a substantial limit, but a limit).

In other words, having Long COVID does not automatically mean that a person has a “disability” under the ADA or the FEHA. Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the ADA or the FEHA. It is necessary to make an individualized assessment to determine whether someone’s Long COVID condition or any of their symptoms (substantially) limits a major life activity. Major life activities include but are not limited to caring for oneself, eating, performing manual tasks, walking, standing, communicating and working. You described your symptoms as something that limits your ability to work, walking and standing. It is likely that you would be considered as a person with a disability under the ADA or the FEHA, entitling you to reasonable accommodations.

What are Reasonable Accommodations? 

Both the FEHA and the ADA require most California employers to give employees with disabilities “reasonable accommodations”. Employers who are covered by the ADA or the FEHA are required to provide reasonable accommodations unless the accommodation would be too difficult for your employer to provide, or doing so would endanger the health and safety of others, or change your job in a significant way.

An accommodation is reasonable when changes are made so that the employee with a disability can perform the essential functions of the job. This can be changing job duties or work schedules, providing leave for medical care, device, or technology. Essentially, these are changes that would allow employees to do their job safely and well.

How to Request Reasonable Accommodations:

The first thing you should do is to inform your employer that you have Long COVID in writing.
Note: your employer may request medical records directly related to disability and need for accommodation to determine whether you are a person with a disability.

Once you inform your employer, they must not discriminate against you and begin engaging in a good-faith interactive process to explore potential reasonable accommodations to help you perform your job effectively and safely.  

Your employer can provide many different reasonable accommodations. It is very important that you maintain communications with your employer so you can explore together the accommodations that are right for you and your job. For example, you could get access to a chair so you can sit down when you feel dizzy while performing your job or you could be temporarily reassigned to a different position or be given different tasks that would allow you to sit down more frequently. You could also request a leave of absence under the Family and Medical Leave Act or the California Family Rights Act, which would entitle you to up to twelve weeks of unpaid job-protected leave. 

Retaliation is Prohibited:

Retaliation is anything that changes the terms and conditions of your employment. Examples of retaliatory conduct include but are not limited to the following:

  • Increased harassment or verbal abuse for opposing unlawful conduct;
  • Changing schedules to an undesirable shift;
  • Assigning undesirable job duties;
  • Demotion or denial of promotion;
  • Relocation to an undesirable location;
  • Reduction in hours or pay;
  • Change in compensation plans or programs;
  • Denial of training or opportunity for advancement; 
  • Discipline such as warnings, suspension or probation for trumped-up charges; and
  • Termination.

An employer must not retaliate against an employee for requesting accommodations. As such, you should not “get in trouble” for requesting accommodations for your medical condition.

If you feel that you have been discriminated against because of your disability and/or medical condition, or retaliated against for standing up for your rights and/or requesting accommodations, contact the employment attorneys at the Dolan Law Firm.

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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.

 

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October is National Disability Employment Awareness Month

Written By Mari Bandoma Callado, Senior Associate Attorney & Director, Diversity, Equity & Inclusion

The Dolan Law Firm recognizes National Disability Employment Awareness Month this October to commemorate the many contributions of people with disabilities to America’s workplaces and economy.

This year, the theme for NDEAM 2021, “America’s Recovery: Powered by Inclusion,” reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the economic recovery from the COVID-19 pandemic.

Some people who have had COVID-19 have not completely recovered and instead, continue to experience ongoing symptoms for months afterward, known as Post-Acute COVID-19 Syndrome or long COVID-19 – and it has caused a wide variety of limitations.  

If you’re experiencing long COVID-19, and it’s affecting your ability to work, you may be entitled to accommodations under the Americans with Disabilities Act and the California Fair Employment Housing Act. Even if you don’t think of yourself as having a disability, you may meet the ADA or FEHA’s definition. Contact the Dolan Law Firm’s employment team to learn more. 

Other Resources: 

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Ruling Finds Proposition 22 Unconstitutional

Written By Christopher B. Dolan and Matthew D. Gramly

 

This week’s question comes from Josh D. from Marin County:

With our current 24-hour news cycle it’s hard to keep up with all the important issues in our daily lives. It seems like Proposition 22 was an initiative constantly discussed 5 years ago that went away. Did Proposition 22 ever take effect?

Thanks for reaching out Josh. Many people may have forgotten about Proposition 22. On August 20, 2021, Alameda County Superior Court Judge Frank Roesch ruled Proposition 22 to be unconstitutional. Recall that Proposition 22, a ballot initiative passed by California voters in 2019 permitted many gig economy companies such as Uber, Lyft and Door Dash to classify their drivers as independent contractors instead of employees of those companies. These companies and others poured over $200 million into the campaign to pass Proposition 22. The benefit to these companies in classifying their drivers as independent contractors (not employees of the companies) is that these companies can then evade almost every regulation in place governing how companies treat their employees as well as virtually every cost associated with having employees such as health insurance benefits, minimum wage laws, safety regulations, workers compensation insurance, etc. As it relates to drivers, these companies would be excused from paying employees mileage, reimbursing them for the cost of gasoline and vehicle maintenance. The cost savings to these companies would have been in the billions of dollars annually. The downside of course, is that the drivers would have to pay for their own health insurance coverage, for example, and would have almost none of the benefits that most full-time employees receive. The cost savings to the companies gets shifted almost entirely to the drivers as an expense to them.

Proposition 22 was far reaching and expansive in its language and in the sheer number of components it included. For instance, it also contained language that would prohibit drivers from forming a union. For that reason, as well, Judge Roesch wrote, Proposition 22 violated the Constitutional requirement that ballot initiatives be limited to a single subject. Relative to this component prohibiting unionization, Judge Roesch wrote that this prohibition,

“appears to only protect the economic interests of the network companies in having a divided, un-unionized workforce, which is not a stated legal goal of the legislation.” 

Judge Roesch is saying that the drafters of Proposition 22 overreached both on process and in substance.  

Proposition 22 itself was created as a ballot initiative by these companies as a direct response to Assembly Bill 5, a law passed by the California State Legislature and signed by Governor Gavin Newsom. AB 5 would have required these types of companies to classify their drivers as employees and conferring upon those employees such benefits as minimum wage protections, workers compensation insurance, overtime pay, etc. Much of the basis for Judge Roesch’s ruling in finding Proposition 22 to be unconstitutional rests largely on the idea that in California, in accordance with the California State Constitution, only the State Legislature can, for example, regulate compensation for workers’ injuries. That goal cannot be accomplished through a ballot initiative process because the Constitution grants that right exclusively to the Legislature. In essence Judge Roesch said that Proposition 22 took that power away from the Legislature, thereby violating the State Constitution. In his ruling, Judge Roesch did say that the voters of California do have the power to make such a change to the State Constitution, but “If the people wish to use their (ballot) initiative power to restrict or qualify a plenary and unlimited power granted to the Legislature, they must do so by (a ballot) initiative constitutional amendment, not by (a ballot) initiative statute.” Voters would have to amend the Constitution first, amending it to permit, in effect, the passage of legislation through ballot initiatives. Neither the voters nor the Legislature have thus far amended the State Constitution in such a manner. The State Legislature had followed the Constitution in properly passing AB 5 through the legislative process as dictated by the Constitution. The backers and authors of Proposition 22 had not, thereby violating the State Constitution.

A spokesperson for ride sharing company Uber said that the company will file an appeal of Judge Roesch’s ruling imminently. Uber has since filed their appeal and requested a stay on Judge Roesch’s ruling until their appeal is complete. That means that while Uber’s appeal is pending, Judge Roesch’s order does not yet take effect, thereby leaving Proposition 22 in effect unless and until the appellate court hears the case and issues a ruling. So, for now, at least, these companies do not yet have to classify their drivers as employees and can continue to classify them as independent contractors, saving companies like Uber, Lyft and Door Dash billions of dollars in costs in the meantime, to the detriment of their drivers.

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You too, Us too: The Strength in Numbers

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Fatima in the Bay Area:

I am a woman of color working at a big tech company in the Bay Area. I have been stuck in the same position for nearly seven years, while several of my white, male co-workers and even subordinates have been given opportunities for advancement. I’m worried my supervisor doesn’t consider me a serious candidate for a promotion, despite my excellent performance reviews. When there is a menial task to get done, it always seems to be assigned to me. At company events, my supervisor introduces me by first name only to corporate representatives, though he introduces the male members of my team using their full names. In meetings, I am frequently interrupted by male team members when I am trying to share feedback or ideas. I am hesitant to approach HR about this. I feel I will be told I have no proof and I am just imagining things. I’ve heard rumors that women in other departments have had similar experiences, but I’m not sure who they are and I’m too worried about my job security to go asking questions. Do I have any options here? 

Thank you for your question, Fatima. Let me assure you that you are not alone in your experiences. What you have described, a mixture gender and potentially race-based discrimination and microaggressions, is being experienced on a grand scale throughout the tech industry by women. Men continue to outnumber women at every level and women are promoted at a lower rate than men, making up only about 38% of managers. While many companies couch themselves as “progressive” and profess to have inclusive diversity platforms, the disparities in the workplace between men and women and, disproportionately, women of color, persist.  

Most recently, a group of both current and former Apple employees dissatisfied with the internal responses to their complaints of harassment, discrimination and retaliation have banded together and called for a collective exchange of stories and experiences in the workplace, spurring the #AppleToo hashtag on social media. The group’s website urges its coworkers at every level to collectively call for systemic change in the workplace, stating that,

“when our stories are collected and presented together, they help expose persistent patterns of racism, sexism, inequity, discrimination, intimidation, suppression, coercion, abuse, unfair punishment, and unchecked privilege.” 

In circumstances such as yours, Fatima, there are several actions you can take to both protect yourself and connect with other women and/or persons of color with similar experiences. First, it is essential to document any incidences or circumstances you feel could be related to gender or race discrimination, including discussions with your boss regarding your interest in advancement opportunities and his response, instances of microaggressions and/or evidence of disparate treatment in the workplace. If possible, your written record should be created contemporaneously with the incidences they document and be marked with a date and time stamp. Contemporaneous records, especially those bearing a date and time stamp, are afforded more credibility than ones created after the employee suffers a termination or a disciplinary meeting. Your description should include the date, time, setting, potential witnesses involved and what was said. Be a meticulous historian and leave emotion out of it, if possible. Always assume an outsider, with no knowledge of you, your character, or your performance record, may someday be reading and evaluating your account of what occurred. While you can certainly share how the experience made you feel, resist the urge to vent. 

The second step you can take is keeping your eye out for allies and sharing your experiences with them in a safe environment outside the workplace. It may feel intimidating to ask other women or persons of color if they, too, feel discriminated against or marginalized in the workplace. Therefore, it is often easier to share your own experiences with them first. If they have faced something similar, they are more likely to feel comfortable volunteering it on their own terms than they would if you questioned them about it directly. If they do end up sharing similar experiences, approaching human resources together can be a powerful approach. It is easier to dismiss one employee’s experience as an outlier, than it is to dismiss two or three similar ones, especially where the reporting structure is shared. 

Nonetheless, if you find you are your only reliable witness, go to HR and report your concerns, preferably in writing. Do not operate under the assumption your concerns will be dismissed. Even if they are, it is unlawful for your company to retaliate against you for voicing your complaints about suspected gender and/or race discrimination. Your company has a vested interest in responding to discrimination claims appropriately, as a failure to investigate, only increases their liability. As always, documenting all communications you have with your supervisor and HR is an important tool to keep track of what has occurred and protect yourself should retaliation occur after filing an informal or formal complaint.

If you feel you are being harassed, discriminated against, or retaliated against because of your race or gender, contact an attorney that specializes in employment law. Making real, transformative change in the struggle against institutionalized implicit bias and overt bias, takes courage and numbers. The good news is the tech industry does not lack either.

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Black Women’s Equal Pay Day

By Mari Bandoma Callado, Dolan Law Firm Senior Associate Attorney and Director, Diversity, Equity and Inclusion.

Black Women’s Equal Pay Day is August 3 because it takes an additional 214 days for Black women to catch up to what white, non-Hispanic men made in 12 months.  

Black women are typically paid only 63 cents for every dollar paid to white men. The pay discrimination can follow someone from job to job and actually compounds over time. According to the National Women’s Law Center, the wage gap adds up to a typical loss of $24,110 a year and nearly $1 million over a 40-year career. 

In California, several laws and regulations attempt to bridge the pay gap such as California Equal Pay Act (Labor Code section 1197.5) which prohibits an employer from paying its employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially-similar work.In addition, employers are prohibited from using prior salary to justify any sex-, race-, or ethnicity-based pay difference. Additionally, Labor Code Section 432.3, prohibits employers from asking job applicants about their salary history information, including compensation and benefits. 

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

 

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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.

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

Written By Christopher Dolan and Allison Stone

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

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

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

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

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

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

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

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

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

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

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Workplace Violence: How to Stay Safe (Part 2)

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.

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