Coronavirus and the workplace: Benefits available to help impacted workers in California

March 18, 2020 | 6:00 am


The COVID-19 coronavirus outbreak continues to affect all aspects of everyday life in our country, including workplaces.

Businesses across the United States have temporarily closed or asked employees to work from home to stem the spread of the novel coronavirus. In Kern County, many are still being asked to go to work, while other workers are having to choose between staying home or going to work to get a pay check.

But what if you become ill or contract coronavirus due to work conditions? What benefits are available should you be out of work from illness associated with the virus?

Read below to learn what responsibility employers have to keep workers safe, benefits available to workers affected by the coronavirus outbreak, and steps you can take in the case you contract coronavirus from work.

 

Employer responsibility 

Workplace safety and health regulations in California require employers to protect workers exposed to airborne infectious diseases such as the coronavirus. Cal/OSHA has posted guidance to help employers comply with these safety requirements and to provide workers information on how to protect themselves.

Cal/OSHA’s Aerosol Transmissible Diseases standard (Section 5199) also requires protection for employees working at health care facilities, and other services and operations, including:

  • Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services.
  • Certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease.
  • Correctional facilities, homeless shelters, and drug treatment programs.

To protect workers and prevent exposure to viruses, employers must develop and maintain the required programs and plans for their facility or operation. More resources from Cal/OSHA to protect workers can be found by clicking here.

 

Coronavirus and workers’ compensation 

The workers’ compensation system in California is a no-fault system, meaning that an employee claiming a work-related injury does not need to prove negligence on the part of the employer. Instead, the employee need only prove that the injury occurred at work and was proximately caused by their employment.

But since the virus is not an “injury” per say, it is categorized as an “occupational disease.” To be an occupational disease, an employee must generally show two things:

  • The illness or disease must be “occupational,” meaning that it arose out of and was in the course of employment.
  • The illness or disease must arise out of, or be caused by, conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.

Special consideration is given to health care workers and first responders, as these employees will likely enjoy a presumption that any communicable disease was contracted as the result of employment. This would also include nurses and physicians who are exposed to the virus while at the worksite.

For other categories of employees, benefits for a workers’ compensation claim will be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. Even if the employer takes all of the right steps to protect the employees from exposure, a benefits claim may be determined where the worker can show that they contracted the virus after an exposure, the exposure was distinctive to the work, and there are no alternative means of exposure demonstrated.

As of now, an employee seeking workers’ compensation benefits for a coronavirus infection will have to provide medical evidence to support the claim.

Finally, states are taking action on this specific issue. Washington’s Department of Labor and Industries changed its policies for health care workers and first responders to “provide benefits to these workers during the time they’re quarantined after being exposed to COVID-19 on the job.” Other states may follow.

Update: On May 6, California Gov. Gavin Newsom signed an executive order made it easier for essential workers who contract COVID-19 to obtain workers’ compensations benefits. The order streamlined workers’ compensation claims and established a rebuttable presumption that any essential workers infected with COVID-19 contracted the virus on the job. In effect, the change shifts the burden of proof that typically falls on workers and instead requires companies or insurers to prove that the employees didn’t get sick at work.The change covers claims filed for 60 days from the May 6 announcement and is retroactive to claims filed as early as March 19. The new rules apply to workers who tested positive for COVID-19 within 14 days of performing work, or those who received a diagnosis within 14 days that was confirmed by a positive test no more than 30 days later. Employers have 30 days to rebut a claim.

 

Benefits available to infected workers

As discussed, if you are unable to do your usual job because you were exposed to and contracted COVID-19 during the regular course of your work, you may be eligible for workers’ compensation benefits.

Those benefits include temporary disability (TD) payments, which begin when your doctor says you can’t do your usual work for more than three days or you are hospitalized overnight, according to California’s Labor & Workforce Development Agency. You may be entitled to TD for up to 104 weeks. Those disability payments stops when either you return to work, your doctor releases you for work, or your doctor says your illness has improved as much as it’s going to. This generally pays two-thirds of the gross wages you lose while you are recovering from a work-related illness or injury, up to maximum weekly amount set by law.

In addition, eligible employees are entitled to medical treatment and additional payments if a doctor determines you suffered a permanent disability because of the illness.

 

Other work benefits 

If you get sick or are quarantined, here’s what you can do: First, California’s paid sick leave law provides time off to many workers. You are entitled to use whatever sick leave you have accumulated. But in the event of a particularly long illness, you may be eligible for disability benefits, provided your illness is certified by a medical professional.

California’s Employment Development Department will now waive the one-week waiting period for people who are disabled as a result of COVID-19, according to an executive order. The Employment Development Department also provides a variety of support services to individuals affected.

  • Caregiving: If you are unable to work because you are caring for an ill or quarantined family member with COVID-19, you can file a Paid Family Leave (PFL) claim. PFL provides up to six weeks of benefit payments to eligible workers who have a full or partial loss of wages because they need time off work to care for a seriously ill family member or to bond with a new child. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week. If you are eligible, the EDD processes and issues payments within a few weeks of receiving a claim.
  • Childcare: If you have child care concerns as a result of coronavirus, the California EDD says you may be eligible for benefits. If your child’s school is closed, and you have to miss work to be there for them, you may be eligible for Unemployment Insurance benefits. Eligibility considerations include if you have no other care options and if you are unable to continue working your normal hours remotely. File an Unemployment Insurance claim and our EDD representatives will decide if you are eligible.
  • Reduced Hours: If your employer has reduced your hours or shut down operations due to COVID-19, you can file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able and available and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria. Eligible individuals can receive benefits that range from $40-$450 per week.
  • Exposed to Coronavirus: If you’re unable to work due to having or being exposed to COVID-19 (certified by a medical professional), you can file a Disability Insurance (DI) claim. DI provides short-term benefit payments to eligible workers who have a full or partial loss of wages due to a non-work-related illness, injury, or pregnancy. Benefit amounts are approximately 60-70 percent of wages (depending on income) and range from $50-$1,300 a week.

 

Message to our clients

Like all of you, we continue to closely monitor the COVID-19 outbreak around the world, and especially in our own community.

Chain | Cohn | Stiles remains dedicated to helping injured clients from throughout Kern County.

Our law firm prides itself on giving people direct access to the attorneys and staff who are working on their cases, and this will continue. Should you need to speak with our attorneys for any reason, we are available any time by phone, email, and chat on our website.

As for those who we’re currently helping with cases, we are still here for you. We ask that you call or email us with any questions you may have on your case. If we can respond to your questions or concerns over the telephone, or by way of email, we will make every effort to do so. In accordance with CDC recommendation we are trying to minimize in-person meetings, when possible. However, should you desire to meet with your attorney or other staff member in person, we will make every effort to accommodate that meeting.

As always, you can reach out to us at any time, 24 hours a day, 7 days a week. In the meantime, please take care of yourself and your family.

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If you or someone you know is injured in an accident at the fault of someone else, contract an illness at work, or injured on the job no matter whose fault it is, contact the attorneys at Chain | Cohn | Stiles by calling (661) 323-4000, or fill out a free consultation form at chainlaw.com.

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MEDIA COVERAGE

#MeToo: How to protect yourself from sexual harassment, assault and abuse

November 29, 2017 | 7:00 am


* Update: Chain | Cohn | Stiles is no longer accepting wrongful termination and sexual harassment cases *

Recently, the United States has seen an uprising of women (and men, too) who have gone public with their stories of sexual harassment, assault and abuse, and systemic sexism, particularly in the world of Hollywood.

The “Me Too” campaign has spread virally to denounce sexual assault and harassment in the wake of sexual misconduct allegations against film producer and executive Harvey Weinstein. Millions of people throughout the world have used the #MeToo hashtag to come forward with their own experiences.

Sadly, these types of cases are all too familiar in Kern County as well. In fact, Chain | Cohn | Stiles has represented dozens of victims of sexual harassment in the workplace, and sex assault and abuse at the hands of law enforcement officers, employment supervisors, and others in roles of power.

Earlier this year, Chain | Cohn | Stiles attorney Neil Gehlawat contributed an article to the Kern Business Journal that outlined how sexual assault and harassment victims could fight back, specifically in the workplace. That article below has been re-purposed here:

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Sexual harassment is, unfortunately, still a prevalent occurrence in the workplace.

According to a recent study conducted at the South by Southwest conference in 2016, two-thirds of women reported having experienced “unwanted sexual attention” at work. Moreover, a survey conducted by Cosmopolitan magazine revealed that one in three women between the ages of 18 and 34 have been sexually harassed at work. Sexual harassment is evidently more prevalent in the service industry, where a 2014 survey by the Restaurant Opportunities Centers United found that 90 percent of women feel forced to “curry favor” with their customers when working for tips.

Even worse, 70 percent of women who experience sexual harassment in the workplace do not report for fear of repercussions, according to the U.S. Equal Employment Opportunity Commission. This is a disappointing statistic, because there are laws in place both in California and in the United States to protect employees from sexual harassment in the workplace.

In California, the Fair Employment and Housing Act, or FEHA, applies to both public and private employers and prohibits sexual harassment against employees, applicants, volunteers, unpaid interns and even contractors in the workplace. You can file a complaint online by visiting the California Department of Fair Employment and Housing (DFEH) website, but it is recommended that you contact an attorney before making such a complaint. The statute of limitations in California requires employees to obtain a right to sue notice letter from the DFEH within one year of the alleged harassment. The employee then has one year from the date of the right to sue notice letter to file a lawsuit.

Moreover, the FEHA requires employers of 50 or more employees to provide sexual harassment training to supervisory employees. The FEHA department permits employees to submit complaints if they have reason to believe that their employer has not complied with this requirement.

Sexual harassment is also prohibited under federal law. The U.S. Equal Opportunity Employment Commission defines sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from inappropriate sexual jokes, to inappropriate touching. Title VII of the Civil Rights Act of 1964 specifically protects employees from sex-based discrimination, which includes sexual harassment, in the workplace and applies to employers with 15 or more employees.

I advise victims of sexual harassment to take the following steps.

  • First, tell the person harassing you to stop. You may do so in person, but you should also put your request in writing; for example, in the form of an email.
  • If this does not work, or if you are uncomfortable about taking such action, consult your employment manual. You need to follow the protocol laid out in the employment manual, if it exists.
  • If it does not exist, you should notify your human resources department or a supervisor, and inform them – in person, and in writing – about the sexual harassment. If the harassment persists, even despite taking the above steps, then you should contact an attorney immediately to weigh your options.

It is illegal under both state and federal law for an employer to retaliate against an employee for making a sexual harassment complaint. If you are the victim of sexual harassment in the workplace, document your complaints in writing, take action, and always remember that the law is on your side.

* Note: Neil Gehlawat is no longer an attorney at Chain | Cohn | Stiles *

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Contact Chain | Cohn | Stiles at 661-323-4000, or visit the website Chainlaw.com.

Sexual harassment in the workplace persists, but with the law on the victim’s side

February 15, 2017 | 8:48 am


The following article written by Chain | Cohn | Stiles lawyer Neil Gehlawat appeared in the February-March 2017 issue of the Kern Business Journal. To view the PDF print version of the Kern Business Journal click here, and read the entire publication, click here

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* Please note: Chain | Cohn | Stiles is no longer accepting sexual harassment cases *

* Neil Gehlawat is no longer an attorney with Chain | Cohn | Stiles *

Sexual harassment is, unfortunately, still a prevalent occurrence in the workplace.

According to a recent study conducted at the South by Southwest conference in 2016, two-thirds of women reported having experienced “unwanted sexual attention” at work. Moreover, a survey conducted by Cosmopolitan magazine revealed that one in three women between the ages of 18 and 34 have been sexually harassed at work. Sexual harassment is evidently more prevalent in the service industry, where a 2014 survey by the Restaurant Opportunities Centers United found that 90 percent of women feel forced to “curry favor” with their customers when working for tips.

Even worse, 70 percent of women who experience sexual harassment in the workplace do not report for fear of repercussions, according to the U.S. Equal Employment Opportunity Commission. This is a disappointing statistic, because there are laws in place both in California and in the United States to protect employees from sexual harassment in the workplace.

In California, the Fair Employment and Housing Act, or FEHA, applies to both public and private employers and prohibits sexual harassment against employees, applicants, volunteers, unpaid interns and even contractors in the workplace. You can file a complaint online by visiting the California Department of Fair Employment and Housing (DFEH) website, but it is recommended that you contact an attorney before making such a complaint. The statute of limitations in California requires employees to obtain a right to sue notice letter from the DFEH within one year of the alleged harassment. The employee then has one year from the date of the right to sue notice letter to file a lawsuit.

Moreover, the FEHA requires employers of 50 or more employees to provide sexual harassment training to supervisory employees. The FEHA department permits employees to submit complaints if they have reason to believe that their employer has not complied with this requirement.

Sexual harassment is also prohibited under federal law. The U.S. Equal Opportunity Employment Commission defines sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from inappropriate sexual jokes, to inappropriate touching. Title VII of the Civil Rights Act of 1964 specifically protects employees from sex-based discrimination, which includes sexual harassment, in the workplace and applies to employers with 15 or more employees.

I advise victims of sexual harassment to take the following steps.

  • First, tell the person harassing you to stop. You may do so in person, but you should also put your request in writing; for example, in the form of an email.
  • If this does not work, or if you are uncomfortable about taking such action, consult your employment manual. You need to follow the protocol laid out in the employment manual, if it exists.
  • If it does not exist, you should notify your human resources department or your supervisor, and inform them – in person, and in writing – about the sexual harassment. If the harassment persists, even despite taking the above steps, then you should contact an attorney immediately to weigh your options.

It is illegal under both state and federal law for an employer to retaliate against an employee for making a sexual harassment complaint. If you are the victim of sexual harassment in the workplace, document your complaints in writing, take action, and always remember that the law is on your side.

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MEDIA COVERAGE / RELATED ARTICLES

Chain | Cohn | Stiles on The Groove: How to know if you have a case against your employer

October 2, 2014 | 4:00 am


* Update: Chain | Cohn | Stiles is no longer accepting wrongful termination and sexual harassment cases *

Losing a job when you didn’t deserve to lose it, or dealing with a hostile work environment can be traumatic. Unfortunately, these situations happen all too often.

The reality is that employment law tends to be very favorable for employers, making it that much more important to contact an attorney who handles employment law cases right away, if you think you’ve been wrongfully terminated, sexually harassed in the workplace, or are dealing with an employment-related injury. Having an attorney will keep you from making mistakes, or agreeing to things that may negatively impact your ability to pursue a case. Secondly, an attorney will be able to inform you of the necessary steps you must take before taking any action against your employer.

These are just some of the tips provided by the Bakersfield wrongful termination and employment law attorney Neil Gehlawat of Chain | Cohn | Stiles recently while on the air with Sheri Ortiz on The Groove 99.3.

He also discussed how to know if you have a case, the necessary steps to take if you think you have a case, and other tips for employment cases.

You can listen to the two short segments here:

Employment law cases are essentially divided into two types, shared Gehlawat:

  • Wrongful termination
  • Hostile work environment/sexual harassment

The agency in California that oversees employment-related matters is the Department of Fair Employment and Housing. The law in California requires employees to “exhaust their administrative remedies” before pursuing legal action against their employer. That means that employees in most cases need to obtain a “Right to Sue” letter from department before they can sue their employer in court. Directions for doing this can be found on the department website (www.dfeh.ca.gov), but it is highly recommended that you contact an attorney before filling out any forms with department.

Provided that you are an at-will employee, in California, the law permits employers to hire and fire employees at will, provided that the hiring or firing decisions are not discriminatory in nature, or do not violate public policy.

The Fair Employment and Housing Act prohibits employers from retaliating against employees, or subjecting them to a hostile work environment, because they are members of a protected class.  “Protected class” means (and is not limited to) age, religion, national origin, race, gender, sexual orientation, disability and others. In other words, an employer cannot fire you because you are African American, or because you are a senior citizen and replace you with someone much younger, or because you are Jewish, for example. If you believe that being part of a protected class is the reason for retaliatory action taken against you, you should consider speaking with an attorney.

There are some other instances where you may have a case, but those instances are limited. For example, if you are a whistle blower, meaning you report the wrongful or illegal activity of your employer to a higher-up and you are then fired or disciplined for it, you may have a case. Or if you’re injured on the job, and file a workers’ compensation* claim, your employer cannot fire you. In the last case, they must also make an effort to engage in a good faith interactive process to see if they can reasonably accommodate you, even with injuries you have sustained on the job.

Finally, Gehlawat shared some tips.

It is important for employees to always put things in writing. Employment cases always turn into “he-said, she-said” cases, and putting things on writing can go a long way to help your case. If you’re having an issue at work, send an email or write a letter, and notify your supervisor or human resources representative. Keep records of everything you put in writing so that it is documented and it does not get lost. Second, if you’re being harassed or subjected to a hostile work environment, you need to report it in writing. You need to give your employer a reasonable opportunity to correct the problem, and if you do not, it may negatively affect your case.

Gehlawat said if you take just two things away from this blog post and the radio spot, it’s this:

  • Talk to an attorney early.
  • Document everything in writing.

* Editor’s Note: Neil Gehlawat is no longer an attorney with Chain | Cohn | Stiles *

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*NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in a prison or a fine of up to $150,000 or double the values of the fraud, whichever is greater, or by both imprisonment and fine.