Author: WorkCompAcademy

A month ago the coronavirus seemed headed for a long winter’s nap in masked and well-vaccinated California. Gov. Gavin Newsom boasted that the Golden State “continues to lead the nation” as the only state to reach the Centers for Disease Control and Prevention’s yellow “moderate” tier of community virus transmission.

But the Mercury News reports that COVID-19 cases aren’t falling in California anymore. They have climbed back up to the CDC’s blood-red “high” level of virus transmission as the highly contagious Delta variant continues to wreak havoc.

“There are early indications that the decline in the Delta surge at the national level in the U.S. has ended,” said Ali H. Mokdad, professor of health metrics sciences at the University of Washington, which runs a widely followed model projecting the course of the pandemic. Currently, 19 states have increasing transmission, including several like California “that had previously appeared to have been declining.”

And while much of the Golden State’s current coronavirus woes are driven by virus spread in the less-vaccinated and restricted inland counties, the Bay Area hasn’t been immune. Most Bay Area counties that hoped to reach the yellow moderate level by now remain stubbornly stuck in orange. Marin and Santa Cruz counties, which had reached the yellow level, are back up to orange. San Francisco is the only county in yellow.

So why aren’t Golden Staters reaping more reward for their adherence to health guidance?

“You’re paying for your success, which is weird,” Mokdad said. “You succeed in controlling the virus, and now you’re having infections.”

But he and other health experts say it’s not because the health guidance isn’t sound. Outbreaks burn out once the virus runs out of enough new people without immunity to infect. And people can gain immunity both from infection recovery and vaccines.

With higher vaccination levels than in the Southeast, California saw a smaller wave of cases over the summer as the Delta variant ripped through the country, mostly infecting those who hadn’t been vaccinated. Now that they’ve recovered, they have immunity too, cutting off avenues for the virus to spread.

“These regions are now being partly protected by high prior infection rates,” said Dr. Bob Wachter, chair of the medical department at the University of California-San Francisco. “But these people whose immunity comes from COVID are not very well protected, and their immunity will wane with time.”

States in the Southeast hammered with big summer case surges now are faring better simply because, with their combination of vaccinations and infections, they have fewer left who are susceptible to the virus than in California, Mokdad said. But “they got there at a heavy price.”

Other factors also are in play. The Southeast’s hot, humid summers drive people to the air-conditioned indoors where the virus spreads easily, while Californians enjoy moderate weather out in the surf and sand. But the autumn chill is now bringing Californians inside, too.

The Los Angeles Times reports that Thousands of people gathered outside Los Angeles City Hall to protest COVID-19 vaccination mandates on Monday – the day the city began enforcing some of the nation’s strictest vaccination verification rules for businesses.

L.A. now requires proof of full COVID-19 vaccination to enter indoor restaurants, shopping centers, movie theaters, hair and nail salons, gyms, museums, bowling alleys, performance venues and other spaces.

Already faced with at least two lawsuits over its coronavirus-related student vaccination mandate, the Los Angeles Unified School District is now being sued over a similar requirement for employees to get their COVID-19 shots.

According to the report in Daily News, Health Freedom Defense Fund, a Wyoming-based organization that advocates against mandatory masking, testing and vaccinations, and six LAUSD employees filed a lawsuit against the district last week, challenging L.A. Unified’s staff vaccination mandate.

California Educators for Medical Freedom, founded by LAUSD employees opposed to a vaccine mandate, was inadvertently left off as a plaintiff, but the complaint will be amended to include the group, Leslie Manookian, founder and president of Health Freedom Defense Fund, said on Monday, Nov. 8.

Filed in U.S. District Court for the Central District of California, the complaint names as defendants Megan Reilly, the district’s interim superintendent; Ileana Davalos, chief human resources officer; and all seven school board members.

Attorneys for the plaintiffs challenged the need for the COVID-19 vaccines, stating in the complaint that they do not prevent infections or transmission of the coronavirus, and that their effectiveness wanes after several months. The complaint also states that the vaccination mandate violates an individual’s right to “personal autonomy, self-determination, bodily integrity and the right to reject medical treatment,” as provided by the Fourteenth Amendment.

“That’s what LAUSD is doing to these teachers and staff at this school district,” she added. “They are forcing them to make a choice between caring for their families and a medical intervention they don’t want.”

Employees who did not meet a mid-October deadline for providing proof of having received at least one dose of a COVID-19 vaccine were prohibited from reporting to work in person. Some were provided accommodations, including being reassigned to a remote position, but not everyone who sought an exemption were granted one. Even if an exemption was granted, not everyone received a workplace accommodation, as was the case for most of the six employees named as plaintiffs in this lawsuit, according to the complaint.

As part of its vaccination mandate, LAUSD agreed to pay unvaccinated employees impacted by the mandate through Oct. 31. It could have begun firing employees starting Nov. 1, though it’s also possible some employees are using their “benefitted time” or have been placed on leave.

The district is requiring students 12 and older to receive their first vaccine dose by Nov. 21 and the second by Dec. 19, before second semester starts in January.

LAUSD has been hit with at least two lawsuits over its student mandate. Attorneys for one of the suits, filed by the California chapter of Children’s Health Defense and the Protection of the Educational Rights of Kids, submitted a motion this week seeking a preliminary injunction to halt LAUSD’s student mandate.

A new study just published in Science, which analyzed the records of nearly 800,000 US veterans of all ages found that the three main Covid-19 vaccines experienced ‘dramatic’ drops in efficacy over six months.

Prior to this study, three reports of the U.S. Centers for Disease Control (CDC) in August 2021 demonstrated protection against infection had declined in mid-summer as the Delta variant rose to dominance; protection against hospitalization and death remained high.

This phenomenon has been most comprehensively monitored in Israel, where high levels of transmission of the Delta variant led to a resurgent outbreak in mid-June 2021, despite a successful nationwide campaign to vaccinate the population.

This new study examined SARS-CoV-2 infection and deaths by vaccination status in 780,225 Veterans during the period February 1, 2021 to October 1, 2021, encompassing the emergence and dominance of the Delta variant in the U.S.

Between early March and September, as the Delta variant rapidly became the dominant strain worldwide, the ability of Moderna’s two-dose vaccine to prevent infections dropped from 89% – 58%, Pfizer’s went from 87% – 45%, and J&J’s single-dose vaccine went from 86% to just 13%.

The vaccines’ ability to prevent death in older Americans remained somewhat robust over the same period, according to the report.

Among veterans 65 and older who were inoculated with the Moderna vaccine, those who developed a so-called breakthrough infection were 76% less likely to die of COVID-19 compared with unvaccinated veterans of the same age.

Older veterans who got the Pfizer-BioNTech vaccine and subsequently experienced a breakthrough infection were 70% less likely to die than were their unvaccinated peers.

And when older vets who got a single jab of the J&J vaccine suffered a breakthrough infection, they were 52% less likely to die than their peers who didn’t get any shots.

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination. They have issued a shorter “Fact Sheet” to help employers understand the requirements.

Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

This ETS applies to employers with a total of 100 or more employees at any time the standard is in effect. The ETS is effective immediately upon publication in Federal Register. To comply, employers must ensure provisions are addressed in the workplace by the following dates:

– – 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
– – 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination

The ETS requires employers to:

– – (1) require employees to promptly provide notice when they receive a positive COVID- 19 test or are diagnosed with COVID-19;
– – (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider;
– – (3) keep removed employees out of the workplace until they meet criteria for returning to work.

In light of the unique occupational safety and health dangers presented by COVID-19, and against the backdrop of the uncertain economic environment of a pandemic, OSHA is proceeding in a stepwise fashion in addressing the emergency this rule covers.

OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination. Nonetheless, the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation, including those working in the largest facilities, where the most deadly outbreaks of COVID-19 can occur.

OSHA intends the ETS to address comprehensively the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. Thus, the standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a Federally-approved State Plan.

In particular, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing. Additional information on the preemption of State and local laws is found in Section VI.A. of the ETS preamble.

OSHA will continue to monitor trends in COVID-19 infections and death as more of the workforce and the general population become fully vaccinated against COVID-19 and as the pandemic continues to evolve. Where OSHA finds a grave danger from the virus no longer exists, or new information indicates a change in measures necessary to address the grave danger, OSHA may update this ETS, as appropriate.

Although this ETS takes effect immediately, it also serves as a proposal under Section 6(b) of the OSH Act(29 U.S.C. 655(b)) for a final standard.

Accordingly, OSHA seeks comment on all aspects of this ETS and whether it should be adopted as a final standard. OSHA encourages commenters to explain why they prefer or disfavor particular policy choices, and include any relevant studies, experiences, anecdotes or other information that may help support the comment.

The National Council on Compensation Insurance (NCCI) released its next updated Countrywide Court Case Update. The November 2021 edition provides a look at some of the key cases and decisions NCCI’s Legal Team monitors that may impact workers compensation across the states. This report contains updated information on cases previously introduced and presents new cases and decisions including COVID-19-related rulings.

“The Countrywide Court Case Update is a valuable resource that NCCI provides to insurers, regulators, and other industry stakeholders,” said Bill Donnell, NCCI’s President and CEO. “NCCI produces this robust report to inform on state and federal legal developments that can impact the workers compensation system.”

This report, provides insights on topics such as:

– – COVID-19 court cases
– – Workers compensation exclusive remedy
– – Challenges to state adoption of third-party guides
– – Developments in marijuana-including reimbursement and employment-related questions
– – Air ambulance reimbursement: state vs. federal law
– – Additional federal and state developments listed by geographic zone

In California, The California Second Appellate District will consider in See’s Candies, Inc. et al. v. Superior Court of Los Angeles County, whether WC exclusive remedy bars a lawsuit brought by an employee alleging that the employer’s failure to provide sufficient safeguards against COVID-19 caused the death of the employee’s spouse, who was infected after the employee contracted the virus at work.

And a case headed to the U.S. Supreme Court is significant to California since the state is governed by the 9th Circuit Federal Court of Appeal.

On August 19, 2020, the federal Court of Appeals for the Ninth Circuit, in United States v. Washington 971 F.3d 856 (9th Cir. 2020), as amended on April 15, 2021, affirmed a federal district court decision upholding the constitutionality of a Washington workers compensation statute that creates a presumption of compensability for certain types of diseases contracted by federal contractors working at the Hanford federal nuclear cleanup site.

The court rejected the federal government’s argument that the workers compensation statute violated the federal intergovernmental immunity doctrine, which invalidates state laws that seek to regulate the United States directly or discriminate against the federal government and those with whom it deals.

The court further concluded that the workers compensation statute falls within the scope of a federal law (40 U.S.C. § 3172) that authorizes the states to regulate workers compensation on federal land to the same extent that the states can regulate on nonfederal land.

A petition for Writ of Certiorari in this case was filed with the U.S. Supreme Court in September 2021. The essential question presented is whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”