Can Employers be sued for Workplace Injuries?

Written By: Christopher Dolan and Aimee Kirby

This week’s question comes from Victoria, who asks: My son, who is 24 years old, recently took a job at a manufacturing facility. They have a cleaning crew at night to make sure everything is clean for the next day. My son befriended one of the young female workers of the cleaning crew, as he sees her every day. While his friend was working, she suffered an amputation of her pinky finger on her left hand. My son told me that the company routinely leaves the equipment on so that their workers can start working the minute they hit the yard and don’t have to lose time starting everything up again. My son feels terrible for his friend. and wants to know if she can sue his company despite the worker’s compensation that his friend might get from her cleaning job.

Hi Victoria,

I am sorry your son’s recent work experience. Workplace safety is generally, on a state level in California, overseen and regulated by Cal-Osha. Cal-Osha most likely inspected the yard after this severe accident. Cal-Osha probably sent an inspector out to determine if any workplace safety violations contributed to the incident, loss of her finger. Cal-Osha will then give the company a chance to respond to any proposed violation and issue a citation if they don’t find the explanation voids the citation. An easy way to think of a Cal-Osha violation is to compare it to a ticket issued by the police for violating a safety vehicle code section. These tickets can range thousands of dollars if the violation is serious.

That company’s Workers Compensation policy will cover your son’s friend as an employee of the cleaning crew. Workers Compensation Insurance covers injuries on the job and is considered no-fault insurance. No-fault insurance would mean insurance that covers medical expenses and loss of earnings, past and future, even if your son’s friend was responsible for her injury.

If I understand what you son is asking, it is if, on top of the Worker’s Compensation benefits, anyone at his company can be responsible for their negligent actions regarding leaving on the equipment to save time.

The question seems straightforward, but the law behind it is very complex. In the Seabright vs. US Airways case, the Supreme Court held that contractors that subcontract for work could delegate all duties to maintain a safe work environment of their facility to the subcontractor. Seabright clarified issues that conflicted with the various appellate courts in California regarding this issue. While it doesn’t make much sense that your son’s employer could delegate safety concerns to the cleaning crew that they knew existed and they created, that is essentially the holding in Seabright. The court’s rationale in Seabright was that the subcontractor was in the best place to take measures in their work to make the condition safe. What is remarkable is that often the subcontractor can’t force the contractor to do something. Still, the court indicated that they must not take the job, if the subcontractor can’t make the job site safe and that if an injury happens, the subcontractor always has the Workers Compensation policy of their employer to fall back on.

The “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.”

There are some exceptions to the Privette doctrine that was discussed in the Seabright case. One exception is if the subcontractor is, really, an employee of the contractor. Another exception is if the company your son works for maintained control of the premises and deliberately acted to increase the dangers to his friend. Lastly, an exception exists if there was a mandatory duty imposed on the company that the Privette Doctrine cannot eliminate.

Lastly, a theory called Federal Preemption is an even more complicated part of this analysis. It stands for the concept that if there is a law in conflict with any federal law, that federal law will always win over state law. Because of all the twists and turns in this particular law, your son’s friend should speak to an experienced attorney on these issues to see if she can sue your son’s employer for their separate negligence.

Written By Christopher Dolan and Mari Bandoma Callado

My partner and I are waiting for the arrival of our baby at the end of June. We are adopting her and cannot wait to become parents. I will be asking for some time off from work to bond with our baby and would like to know more about my rights as an adoptive father. How much time off can I take? Am I entitled to paid leave? Do I get to keep my health benefits? In the three years I have worked for my company, I noticed that not a lot of the men I work with take time off to bond with their newborn. I am worried about being retaliated against for requesting paternity leave I work for a small tech company with 15 employees in Oakland, California. Thank you and I hope you have a great Father’s Day! – James

Thank you for your question, James. Congratulations and Happy Father’s Day to you too. It is really unfortunate there is still a stigma against taking paternity leave.

Time Off to Bond with Newborn, Newly Adopted or Foster Child

The California Family Rights Act (CFRA) requires California employers with 5 or more employees nationwide to provide employees who worked for their employer at least 1,250 hours in one year just prior to taking leave up to 12 weeks of unpaid, job-protected leave to bond with a newborn, newly adopted, or foster child within the first year of birth or placement in the home. Employees do not have to take this leave all at once as time off from work can be taken intermittently.

Employees are required to provide “reasonable notice” of your intent to take baby bonding or family leave. How much notice is required depends but it would be prudent to try to notify your employer at least 30 days in advance of your plans to take time off. We recommend providing notice in writing and including the dates you plan to begin your leave, the anticipated duration of that leave, and a brief explanation of why you are taking that leave (e.g. to bond with adopted baby).

Benefits and Payment During Paternity Leave

If you have health benefits through your employer, they will continue while on CFRA leave.
Note: you may have to pay for your portion of your premiums.

Unfortunately, your employer is not required pay you while you are on leave (unless your employer pays employees on CFRA leave), but here are a couple of ways you can receive payment during paternity leave:

State benefits: California offers Paid Family Leave (PFL) which provides up to 60% or 70% of weekly wages, depending on income for a maximum of 8 weeks to bond with your newborn, adopted child or foster child within the first year. To be eligible for this partial wage replacement, you must have paid into State Disability Insurance during the base period. This is often noted as CASDI on most paystubs. To learn more about eligibility and/or to apply for paid family leave, go to edd.ca.gov.
Paid Sick Leave: California’s paid sick time law gives employees sick time that can be used to recover from physical/mental illness or injury; to seek medical diagnosis, treatment, or preventative care as well as to take care for a family member who is ill or needs medical diagnosis, treatment, or preventative care; or to address needs that may arise if the worker is a victim of domestic violence, a sexual offense, or stalking. Therefore, if your baby gets sick or you want to take your child to medical appointments, you may also use your paid sick days. Your employer may not require you to use sick leave; however, you and your employer can mutually agree that you may use sick leave.
Note: some California cities have their own sick time laws which may provide additional rights.
Accrued Paid Time Off: Your employer may require you to use vacation time unless you are receiving PFL from EDD to bond with a new child.

Retaliation/Returning to Work

California laws protect employees from retaliation. It is unlawful for an employer to violate an employee’s family leave rights and retaliate against an employee who takes time off to bond with their baby. Retaliation occurs when an employer takes an “adverse action” against an employee because s/he has exercised a “protected legal right” such as requesting parental leave. An adverse action is any act by an employer that negatively and significantly affects the terms and conditions of one’s employment such as termination, demotion, suspension, reduction in pay or hours, and any other action that would discourage a reasonable person from pursuing their rights.

When you return to work after parental leave, your employer must return you to the same or comparable position they had prior to the leave. If you notice any changes to your job title, duties, or a reduction of pay of hours, or if you hear any offensive comments about taking time off, consult with an attorney to help protect your rights.

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

Laird E. in Alameda asks: “I work in construction, and I am often at the worksite for 10 – 12 hours each day and often don’t get off work until after 7:00 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?”

Dear Laird,

Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave.

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that, “the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the jobsite for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work.

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an
employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy. A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it?

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect.

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated.

What does this mean for you and your circumstances?

First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details. This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled.

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others.

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances.

March 15 marks the day in 2022 when women finally catch up with what men were paid in 2021 #EqualPayDay. For every dollar a man makes, women, on average, only earn 83 cents. Women of color experience a much wider #WageGap. Black, Native American and Latina women earn 58 cents, 50 cents and 49 cents for every dollar a white, non-Hispanic man earns, respectively. We cannot achieve #WomensEqualPay without ensuring women of color are supported and protected in the workplace.

According to the history of the American Association of University Women, an analysis of newly released figures from the U.S Census Bureau and the Bureau of Labor Statistics shows that overall in 2020 women were paid just 83 cents for evert dollar paid to a man.

“In 2019, on average women took home 82.3 cents for every dollar paid to men, compared to 83 cents in 2020. But that number and the apparent change is misleading given the massive shifts in American labor force during the COVID-19 pandemic”.

To learn more about the gender pay gap from AAUW, click here.

California Labor Code 1197.5 and Labor Code section 432.3 contain California’s Equal Pay Act. These laws state no employer shall pay any employee at a wage rate less than an employee of a different sex or ethnicity performing substantially-similar work. Moreover, an employer may not base a wage differential on sex, ethnicity or another protected class. Instead, the employer must show valid and legal grounds for the difference in pay, such as merit, seniority, quality of production or a bona fide factor such as training, education or experience.

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.

By Christopher Dolan and Mari Bandoma Callado

“I was laid off, along with my whole crew, when COVID-19 first hit. I worked for a company that provided janitorial and building maintenance to a commercial building. Now, my company is hiring again. Can I reapply to my old job, or are they supposed to notify me if I can come back? I have only found spotty employment, in the meantime, I would really like to go back to my old job.” – Ray B. from Concord.

Thank you for this excellent question, Ray. We are sorry you were one of the many people laid off from your position because of COVID-19.

As COVID-19 restrictions are generally being lifted, many businesses have opened back up and, thankfully, rehiring many of the people who had been placed out of work during the shutdown. Before the pandemic, California businesses without a collective bargaining agreement were generally unrestricted in their discretion to pick and choose which, if any, employees would be recalled to work following a layoff. However, during the pandemic, many cities adopted “right to recall” ordinances that restricted employer hiring discretion after a layoff.

Last April, California followed suit by enacting Senate Bill 93, which created Labor Code Section 2810.08 which requires employers in certain industries (see covered employers below) to make written offers to employees laid off because of a reason related to the COVID-19 pandemic (e.g. public health directive, government shut down order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic). This law does not expire until December 31, 2024.

Covered Employers

Covered employers generally include:

hotels with 50 or more guest rooms;
private clubs that operate a building or complex of buildings containing at least 50 guest rooms;
publicly or privately-owned event centers of more than 50,000 square feet or 1,000 seats used for public performances, sporting events, business meetings, or similar events;
airport hospitality operations that provide services related to the preparation of food or beverages for aircraft crew passengers, and to the public at an airport;
airport service providers that provide services directly related to the air transportation of persons, property or mail; and
employers that provide janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings.

Covered Employees

To be protected by Labor Code Section 2810.8, an employee must have worked at least two hours per week by the covered employer, been employed by a covered employer for at least six months in the twelve months preceding January 1, 2020 and be separated from active service due to a reason related to the COVID-19 pandemic. Any employer of a covered enterprise must comply with the recall provisions regardless of the number of its employees.

Employers’ Obligations to Covered Laid-Off Employees

Within five business days of establishing a position, a covered employer must offer its laid-off employees all job positions that become available for which the laid-off employees are qualified in writing.
A laid-off employee is “qualified” for a position if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer.
A laid-off employee who is offered a position has to be provided at least five business days from the date of receipt to either accept or decline the offer. We recommend responding in writing as soon as possible and keep a written copy of your acceptance. If your contact information has changed, please make sure to update your former employer with all current contact information to facilitate the employer contacting you and avoid missing a recall opportunity.
Simultaneous, conditional offers of employment may be made by the employer to more than one laid-off employee, with the final determination of which laid-off employee gets the position determined by seniority. Seniority is based on total length of service with the employer, not on the basis of job seniority.
In the event that an employer declines to recall a laid-off employee on the grounds of lack of qualifications and instead hires someone other than a laid-off employee, the employer is required to provide the laid-off employee with written notice within 30 days. The notice must specify the length of service with the employer of those hired in lieu of that recall and all reasons for the decision.
Labor Code Section 2810.8 also contains anti-retaliation provisions and requires employers to keep records for three years. The records must include the laid off employee’s full legal name, job classification at time of layoff, date of hire, last known residence, email address, and phone number, as well as lay off notices and all communications regarding employment offers made under Labor Code section 2810.8’s requirements.

Enforcement and Remedies

The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over the enforcement of Labor Code Section 2810.8. While there is no private right of action, laid-off employees may file a complaint for a violation of Labor Code Section 2810.8 with the DLSE, and the DLSE may bring a civil action in court.

Remedies for violations include reinstatement, back pay, benefits, and interest on all amounts due and unpaid, Civil penalties may also be imposed, including $100 for each employee whose rights are violated, and liquidated damages of $500 per employee, for each day an employee’s rights have been violated.

If you believe that your recall rights were violated, you may report the violation to the DLSE for investigation.

City and County Ordinances

Cities and Counties may enact greater protections through local ordinances. Labor Code Section 2810.8 does not preempt right-to-recall ordinances adopted by multiple cities throughout California. Some of the cities and counties which have enacted such ordinances include Carlsbad, Glendale, Los Angeles County, Los Angeles City, Long Beach, Monterey County, Oakland, Pasadena, San Francisco, Santa Clara, San Diego, and Santa Monica.

If you believe that your employer used COVID-19 as a cover for discriminatory lay-offs during the pandemic, and/or if you have questions about whether Labor Code Section 2810.8 applies to you, please contact an employment attorney and/or the DLSE.

***

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

Written By Christopher B. Dolan, Steven Balogh and Nancy Villatoro

This week’s question comes from Fred in Oakland: Every year, it seems laws get changed or updated. Can you share some laws that your firm may be looking out for in 2022?

Thanks for your question, Fred. During the first of the year the California legislature and Governor enact numerous bills that affect the courts or are of interest to the judicial branch. This year is no exception and the same thing happened in 2022. This is not a complete summary of all the laws, but here are some laws that we believe are worth mentioning as they relate to personal injury and employment law:

AB 855 Judicial Holidays

Native American Day (4th Friday in September: 9/23/22) replaces Columbus Day.

SB 241 More Efficient Courts

Remote appearances are extended until 2023. The general rule that other case deadlines are also extended for the same length of time as a continuance or postponement now also applies to arbitration. Courts are required to hear minor’s compromise petitions within 30 days of filing and, if the petition is uncontested, to issue a decision upon the hearing’s conclusion.

SB 447 Pain & Suffering in Survival Actions

Updates CCP 377.34 puts a deceased person’s non-economic damages back on the table for their survivors. Applies to all causes filed starting this year through to the end of 2026. Learn more here.

SB 331 Silenced No More Act

The prohibition on NDAs in settlement agreements has been expanded from just those involving sexual harassment, assault, and discrimination to cover settlement agreements for all forms of harassment or discrimination. SB 331 also expands the prohibition on overly broad confidentiality and non-disparagement clauses to include workers who have to sign one as part of a severance agreement. This only applies to agreements made after 1/1/22.

SB 93 Rehiring and Retention

Employers are required to essentially give laid-off workers right of first refusal for their old jobs. Requires an employer to keep records of these offers for three years.

AB 1033 Expanding the California Family Rights Act

Employers with at least 5 employees must provide employees up to 12 weeks of job-protected leave from work, on an annual basis, to care for a parent-in-law with a serious medical condition.

AB 849 Undoing Jarman v. HCR Manorcare (2020) 10 Cal.5th 375

Caps violations of regulatory resident rights (at skilled nursing and intermediate care facilities) at $500 per violation. The new caps apply to violations occurring after March 1, 2021.

AB 654 Covid-19 Exposure Employer Notification Requirement

Employers must provide local public health agencies with notice within 48 hours or a business day, whichever is later, upon learning of a potential exposure event. The Employer is also required to notify the employees, customers, and anyone else on site who may have been exposed. Only applies through to the end of 2022.

AB 701 Warehouse Workers Quota and pace-of-work standards Disclosures

Requires disclosure of quotas and workers cannot be fired or retaliated against for falling to meet an unsafe quota. The bill focuses on the relationship between quotas and incidence of workplace injury.

SB 762 Arbitration Invoice Payment Requirements

Amends Code of Civil Procedure §§ 1281.97 and 1281.98 to change the default rule to all arbitrator invoices are due upon receipt, unless the parties’ arbitration agreement sets a number of days. Extensions for invoice payments must be agreed upon by all parties to the arbitration.

SB 974

Minors on horses on highways must wear approved helmets.

SB 286 Delivery App Tips

Tips for delivery cannot be retained by the apps but go to the delivery driver. Tips for pickup still go to the restaurant.

SB 389 Alcohol to go

Restaurants can sell alcohol to go through to the end of 2026.

AB 177 Judicial Evaluation of Remote Proceedings

The judicial counsel is to collect data on how many and how well remote proceedings are doing and present this information to the Legislature and governor by January 2023. This law also requires the Judicial Council to come up with guidelines on how to administer remote proceedings in the same timeframe.

For more information on CA Bills take a look at the links below:

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Cindy W. from Oakland: I am immune compromised and have a number of related health conditions that make me much more susceptible to serious and life-threatening symptoms if I contract COVID-19. Even the less severe strains could send me to the hospital and threaten me. I have a good job and want to keep it, but I am concerned that I will be exposed. Is there anything I can do to make sure I can continue working, but that I remain safe? – Cindy W.

Thank you for your question, Cindy.

Fortunately, there are protections that may be available to you and the many others who are immunocompromised, or otherwise highly susceptible to severe reactions to COVID-19.

For individuals with a disability, an employer has an obligation to provide reasonable accommodations that would allow that person to perform the essential functions of the position. These protections come Federally pursuant to the ADA (Americans with Disabilities Act) and in California from the FEHA (Fair Employment and Housing Act). There are some differences in the laws, but the ADA acts as a floor, or minimum protections, and where the FEHA has more protection available, that will control.

For an employer to be required to make accommodations, a worker must notify the employer of the fact that they have a disability and that they require accommodations. To be what the law refers to as a “qualified person with a disability,” one must have the skills and experience required for the position and have a physical or mental impairment that limits a “major life function.” Being seriously immunocompromised, as you are, is likely to meet that standard.

Once an employer is aware of the disability and a need for accommodations, both the worker and the employer must engage in a good faith interactive process to find suitable accommodations. It is important to understand that an employer is not obligated to provide the worker’s preferred accommodation. It must, however, provide an accommodation which will allow the worker to perform the essential functions of the position. Keep in mind, no employer is required to offer an accommodation which creates an “undue hardship.” An undue hardship is an action requiring “significant difficulty or expense.” Each potential accommodation is very fact specific, but to determine if it is an undue hardship, courts have looked to many factors including the nature and cost of the accommodation, the financial resources and structure of an employer, as well as the type of operations of the employer and its facilities.

In the context of those who are ill, or afraid to come to work because exposure to the virus may create severe health issues, there are a number of potential accommodations worth exploring, depending on the type of work a person performs. Historically, it did not used to be reasonable for a worker to request an accommodation to work from home. Previously, it was often considered to be an “undue hardship.” However, over the last two years, for many job functions, it has become the norm for many positions. Obviously, for many positions, such as labor, customer service, and similar positions, this is not feasible. However, for many office workers, it may now be a “reasonable accommodation.”

For others, another option in an office. An office may be requested, for protection, as an accommodation to work from rather than an open-air cubicle where foot traffic is high.

For more hands-on positions, it may be possible to work later in the day, or at night, where there are not so many people in the workplace presenting a danger to COVID transmission.

If the job can be done remotely for the most part, but the position requires some in-office time, such as filing paperwork, it may be a reasonable accommodation to work part-time from home and part time in the office, thus reducing the exposure.

Importantly, there is no set list of accommodations. The law requires the interactive process for the worker and employer to come to a set of accommodations which allow the worker to perform the position without causing an undue hardship on the employer. Whether an accommodation is reasonable can truly only be understood on a case-by-case basis.

No employer can legally retaliate against a worker for requesting accommodations. The request counts as a “protected activity” such that, if an employer were to retaliate against the person requesting, they could be liable and made to pay damages in a civil lawsuit.

Cindy, I hope this article helps you get the accommodations you deserve.

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.

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.

Employment Law