Author: WorkCompAcademy

Gavin Newsom has signed several measures to strengthen California’s cannabis laws, One of the ten cannabis related legislative bills he signed – AB 2188 – might be a significant problem for California employers.

The legislative analysis provided the backstory to this new law. In March 2021, when the State Personnel Board heard a case regarding the dismissal of a CalTrans maintenance worker for testing positive for THC upon his return to duty after a leave of absence. In upholding the Administrative Law Judge’s decision to revoke his termination, the Board ruled that a positive urinalysis test for marijuana, on its own, is not grounds for dismissal. In this case, there was no evidence that the worker was “under the influence of marijuana when he reported for duty or on standby for duty or that he possessed or used marijuana while on duty or on standby.”

The State Personnel Board also found that the test had limited probative value because it could only show marijuana use at some point in time prior to the worker reporting to work. Thus, a positive drug test for off the job and past use of marijuana cannot be a basis for proving employee impairment.

AB 2188 appears to be a solution for what happened in the CalTrans case.

Under the terms of this new law, after January 1, 2024, it will be unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based the person’s use of cannabis off the job and away from the workplace.

Or to discriminate based upon an employer-required drug screening test that has found the person to have “nonpsychoactive cannabis metabolites” in their hair, blood, urine, or other bodily fluids.

The new law declares that after “tetrahydrocannabinol is metabolized, it is stored in the body as a nonpsychoactive cannabis metabolite. These metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks” And while “there is consensus that an employee should not arrive at a worksite high or impaired, when most tests are conducted for cannabis, the results only show the presence of the nonpsychoactive cannabis metabolite and have no correlation to impairment on the job.”

And there are several exceptions to the application of this new law. It “does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.

But it does not specify what these allowable alternative screening tests might be. Employers will have slightly more than one year to discover this for themselves.

The law “does not apply to an employee in the building and construction trades.” And it “does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense…”

And finally the new law “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.”

California NORML was the sponsor of the bill. Supporters of AB 2188 included the California Cannabis Industry Association, the California Employment Lawyers Association and other similar stakeholders. The legislation was opposed by a large number of employer related organizations including the California Chamber of Commerce, the National Federation of Independent Business and many other groups.

NEXT Insurance provides small business insurance with simple, digital and affordable coverage tailored to the self-employed. It offers policies that it says are easy to buy and provides 24/7 access to Live Certificates of Insurance, Additional Insured, and more, with no extra fees.

The company is headquartered in Palo Alto, has received a total of $881 million in venture capital funding, is rated “A- Excellent” by AM Best and has been recognized by CNBC Disruptor 50, Forbes Fintech 50, Inc.’s Best-Led Companies, and Forbes Best StartUp Employers.

NEXT Insurance Intuit Inc. just announced the launch of NEXT Connect for Intuit QuickBooks, an embedded insurance solution that provides customers with seamless access to digital-first insurance products within the QuickBooks ecosystem.

QuickBooks is an accounting software package developed and marketed by Intuit. First introduced in 1983, QuickBooks products are geared mainly toward small and medium-sized businesses and offer on-premises accounting applications as well as cloud-based versions that accept business payments, manage and pay bills, and payroll functions.

QuickBooks is the accounting software of choice for more than 29 million small businesses in the U.S. They have over 80% market share and have a diverse product offering suited to help both small businesses QuickBooks Desktop, and Quickbooks Online and larger growing companies (QuickBooks Enterprise) and everything in between (QuickBooks Pro, QuickBooks Premier)

As QuickBooks’s premier insurtech with a proprietary pay-as-you-go system that integrates directly with Intuit QuickBooks, this embedded solution enables small businesses to quickly set up a plan that seamlessly handles payments, streamlines cash flow and ensures they only pay for the coverage they need.

Small businesses and accountants can obtain insurance quotes and bind coverage without leaving their QuickBooks account. Additionally, users can benefit from NEXT’s technologically advanced, in-house pay-as-you-go offering for workers’ compensation, consult with a trusted insurance advisor as well as access multiple A-rated national carrier products, including NEXT.

Guy Goldstein, CEO of NEXT Insurance said that “Our partnership with Intuit QuickBooks enables NEXT to ease significant pain points for the small business community by providing easy access to customized coverage and payments directly tied to a company’s payroll for their workers’ compensation policies – all without leaving their Intuit QuickBooks accounts.”

NEXT’s pay-as-you-go offering was built in-house to provide small businesses with a convenient option to pay for their insurance “as they go” versus all up front, preserving cash flow and reducing the likelihood of year-end audits.

NEXT’s pay-as-you-go offering now uses Stripe Financial Connections to link to a customer’s bank account and automatically handle payments on an ongoing basis. Customers benefit from being able to easily set up billing and having it run automatically along with their payroll. All of their policy, billing and payment information is in one place to easily manage

Jessica Hidalgo, Group Product Manager at Intuit QuickBooks said “NEXT Connect’s embedded insurance offering and pay-as-you-go solution allow us to not only provide QuickBooks customers with seamless access to trusted insurance carriers, but also offer payment options adjusted to a company’s payroll.”

Leslie Elizabeth McCain was employed as a laborer by Wallis Construction, Inc., sustained injury AOE/COE to her left elbow, left wrist, right wrist, and psyche on September 24, 2014, and claims to have sustained injury AOE/COE to her neck and shoulders, consisting of myofascial pain.

She waited roughly 1½ months to seek treatment for her physical injuries, at which point she visited Doctors on Duty, where she was evaluated by Michael Luder, M.D. During her visit, applicant informed Dr. Luder that, when the injury occurred, she was “using a weed whacker, lost her footing and hit her left elbow into a wall.

On December 2, 2014, she visited an Urgent Care facility where she similarly told Robert Martin, PT (physical therapist) that the injury occurred when “[s]he was weedwhacking in [a] small space …. She lost footing and fell into [a] wall hitting (L) elbow with wall and weedwhacker.”

She then provided various different versions as to how her injury occurred during subsequent doctors’ visits between 2015 and 2017, stating at various times that: (1) her injury was caused by repetitive use working in construction; (2) that a “jackhammer” fell on her arm; (3) that a “hand held compactor” struck her left elbow when she tried to block it from striking a door; (4) that a “200-pound” weedwhacker fell on her left arm; (5) that the weedwhacker became stuck, she tripped, fell backward, and the machine struck her left elbow; and (6) that her feet got stuck in the mud, she fell backward, and the weedwhacker’s handle hit her left elbow.

On April 28, 2022, the parties proceeded to trial. Among the issues raised was whether or not the ‘violent act’ exception applied. Applicant did not testify, and the matter was submitted.

The WCJ found that McCain’s psyche injuries did not result from a “violent act,” and that, as a result, she was not entitled to an award of permanent disability for the psychiatric consequences of her physical injuries pursuant to Labor Code section 4660.1(c)(2)(A). Her reconsideration was denied in the panel decision of McCain v Wallis Construction Inc – ADJ11102338 (August 2022).

The WCAB panel noted that “is undisputed that her psyche injury was not a “direct” injury, and that it was a compensable consequence of her physical injuries.” In the case of Wilson v. State Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc) it was explaining that section 4660.1(c) applies to compensable consequence injuries. Thus, there is no dispute that section 4660.1 applies.

The parties dispute whether applicant may receive an increased permanent impairment rating under section 4660.1(c)(2)(A), and applicant bears the burden of proving that her psyche injury resulted from either being a victim of a violent act or direct exposure to a significant violent act.

Several panel decisions have followed the definition of a “violent act” for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

Here, the WCJ found that applicant’s psyche injury was not compensable under section 4660.1(c)(2)(A) because the act of slipping and falling and being struck in the elbow by a weedwhacker was not a “violent act” within the meaning of the statute.

The WCAB panel agreed with the WCJ. “Significantly, since applicant did not provide testimony at trial, it is unclear exactly how the injury occurred, and the WCJ was unable to weigh the testimony and determine whether the event was of the type that would be considered a violent act.”

“Even accepting the version of events that were contained in QME Dr. Lopez’s report, the force of this incident cannot be characterized as either extreme or intense, and applicant did not lose consciousness after her fall and kept working after the incident, explaining that she “fully expected her symptoms to resolve promptly.’ ”

“Applicant’s injuries are instead akin to those that we have previously determined were not the result of a violent act….”

Cal/OSHA just posted guidance on monkeypox (MPX) to ensure workers in California are protected from the aerosol transmissible disease. This guidance applies to workplaces covered by the Aerosol Transmissible Diseases (ATD) standard, including health care facilities, medical transport, police, public health services and more.

This guidance provides a brief overview of some, but not all, of the requirements of Title 8 CCR section 5199 as it applies to protection of workers from MPX. Employers not covered by section 5199 are not discussed in this guidance but must protect their employees under the Injury and Illness Prevention Program (section 3203), sanitation requirements (section 3362), and other laws and regulations.

Monkeypox (MPX) spreads primarily by close or direct contact, but can also become airborne. Thus, MPX is an aerosol transmissible disease covered by Cal/OSHA’s Aerosol Transmissible Diseases (ATD) Standard which contains mandatory requirements that certain employers must follow to protect their employees.

For example, regulations require employers to:

– – Implement a written program to prevent or reduce the transmission of aerosol transmissible diseases specific to the workplace and operations.
– – Provide and ensure the use of respiratory protection.
– – Ensure that personal protective equipment (PPE) is provided and used by employees exposed to persons with or suspected to have MPX, or to linens or surfaces that may contain the virus.
– – Implement written procedures for exposure incidents.
– – Report the exposure to the local health officer.

Cal/OSHA’s Aerosol Transmissible Diseases (ATD) Standard has differing requirements for three different types of employers – (1) referring employers, (2) laboratories, and (3) all other employers. Details about the requirements for each of these categories start on page 3 of the Cal/OSHA MPX Guidance.

MPX spreads primarily by close or direct contact with infectious rashes, lesions, scabs, or body fluids. It can also spread through touching materials used by a person with MPX that haven’t been cleaned, such as clothing, towels, and bedding. The virus can become airborne during changing or handling of contaminated linen. In addition to lesions on the skin, lesions may be located in the mouth or throat, and research is underway to further understand the role of respiratory fluids, droplets, and particles in the transmission of MPX.

Infection with MPX may start with symptoms similar to the flu, including fever, low energy, swollen lymph nodes, and general body aches, although some patients do not have these symptoms. After the fever starts, the person can develop a rash or lesions. The lesions will develop through several stages, including scabs, before healing. They can look like pimples or blisters and may be painful and itchy. The illness typically lasts 2-4 weeks.

During the current outbreak, skin lesions have presented most commonly in the anogenital area, followed by trunk and limbs, face, and palms or soles. Lesions may also occur in the mouth and throat.

Since May 2022, there has been a rapid rise in cases of MPX in many regions, including California. The disease is typically self-limited (resolves on its own without treatment) but may be severe in young children or immunocompromised individuals, such as those infected with HIV.

On August 1, 2022, Governor Newsom issued a statewide proclamation of emergency due to MPX. On August 4, 2022, the U.S. Department of Health and Human Services declared the U.S. MPX outbreak to be a public health emergency.

Gurdip Kaur started working at Foster Farms in 2001 and worked for nearly 15 years. From 2008 to 2016, Kaur worked as a yield monitor at Foster Farms’ Cherry Avenue plant, a chicken processing facility.

On April 24, 2013, Kaur slipped at work while wearing company-issued rubber boots; and she broke her left wrist. Prior to the injury, she had slipped because of these boots, and attempted to avoid slipping by requesting new boots. Kaur is originally from India, and believed that she and other Indian employees at the plant frequently encountered difficulties in obtaining work-related gear, because they were Indian.

After a surgery to her broken wrist, she was restricted in the use of her left hand and wrist for work. She went back to her regular position as a yield monitor, with no modification in her duties, and complained that she needed light duty given the restrictions on using her left hand. She claims her request was never appropriately addressed by Foster Farms.

In May 2016, Foster Farms announced it would undergo a restructuring that would affect its Cherry and Belgravia chicken processing plants. The Cherry plant would lose 500 positions, while the Belgravia plant would gain 300. July 22, 2016, Kaur was terminated after numerous efforts to identify and train her for a job she could do at Belgravia. The sole reason for Kaur’s termination was that she “chose not to take the [one] accommodation” offered by the company (i.e., the pallet jack driver position); it was not a performance-related termination.”

In October 2017, Kaur filed a lawsuit against Foster Poultry Farms. The first five causes of action arose under FEHA: (1) discrimination on the basis of race/nationality and disability; (2) failure to provide reasonable accommodation; (3) failure to engage in an interactive process; (4) failure to take all reasonable measures to prevent discrimination; and (5) retaliation for asserting FEHA rights. The sixth cause of action asserted in the complaint was retaliation in violation of Labor Code section 1102.5.

Prior to filing the civil action she filed a petition against Foster Farms with the WCAB, asserting claims under Labor Code section 132a, which was litigated over three days, spread over the course of a year, before WCAB ALJ Debra Sandoval. On July 9, 2019 ALJ Sandoval denied the 132a petition.

Foster Farms then amended its answer in the civil case to assert an affirmative defense that all of Kaur’s disability-related claims were barred by res judicata and collateral estoppel based on the workers’ compensation ALJ’s ruling. It then moved for summary judgment on the basis of this affirmative defense.

The trial court granted summary judgment in favor of Foster Farms, holding that the WCAB opinion barred Kaur’s disability-related and other claims under FEHA and Labor Code section 1102.5, and that Kaur’s race/nationality discrimination action was time barred. The Court of Appeal reversed in the published case of Kaur v. Foster Poultry Farms LLC F081786 (September 2022).

The primary issue on appeal is whether the decision by the WCAB denying Kaur’s 132a claim has a res judicata or collateral estoppel effect on the claims at issue in this civil FEHA action.

Kaur’s petition before the WCAB alleged that Foster Farms “[was] aware that [Kaur] had suffered a work place injury on April 24, 2013.” The petition further alleged that Foster Farms “did intentionally and by means of retribution [discriminate] against [her] and said discrimination was in response and in retribution for [her] claim of injury and her filing of her workers’ compensation claim for benefits.”

As to her disability discrimination claim the Court of Appeal noted that “Labor Code section 132a proscribes a relatively narrow range of discriminatory conduct by employers, while FEHA targets a much broader range of discriminatory conduct and imposes affirmative duties on employers as to disabled employees.”

And it went on to say that “Kaur’s FEHA claims for disability discrimination, failure to provide reasonable accommodation, and failure to engage in a good faith interactive process involve entirely different inquiries and issues than her claims under Labor Code section 132a and encompass a whole range of affirmative duties and other requirements applicable to the employer (e.g., continuing obligations to make reasonable accommodations and engage in an interactive process), as well as benefits that accrue to the employee (e.g., preferential treatment with regard to open positions), that have no relevance to a Labor Code section 132a proceeding.”

The Court of Appeal concluded that the WCAB’s decision on Kaur’s Labor Code section 132a claim does not have preclusive effect on Kaur’s disability related FEHA claims, and the trial court therefore erroneously granted summary adjudication in favor of Foster Farms.