Category: Daily News

California’s Division of Occupational Safety and Health (Cal/OSHA) Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard (“3rd Revised ETS”), by a 6-1 vote.

The ETS has no set rules for close contact exclusion from the workplace. Instead, it requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts.

On October 14, 2022, the California Department of Public Health published an Order which updated the definitions of Close Contact and Infectious Period to provide entities strategies to prioritize response to potential exposures.

“Close Contact” means the following:

– – In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis ) infectious period.
– – In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

Infectious Period is defined as:

– – For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
– – For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.

This Order went into effect on October 14, 2022, at 12:01 a.m.

Following the new CDPH order defining Close Contact and Infectious Period the Cal/OSHA issued a fifteen-day notice with requests for written comments on proposed updated COVID-19 regulations to Title 8 of the General Industry Safety Orders.

Modifications are now proposed by Cal/OSHA for subsection 3205(a)(1) (scope); subsection 3205(b)(1) (definition of “close contact”); subsection 3205(b)(7)(A) (exception to the definition of “exposed group”); subsection 3205(b)(11) (definition of “returned case”); subsection 3205(c)(1) (universal precaution); subsections 3205(e)(1), (e)(2), and (e)(3) (notice of COVID-19 cases); subsection 3205(h)(1) (ventilation); subsection 3205(j) (reporting and recordkeeping requirements); subsection 3205.1(a)(2) (scope); subsection 3205.1(e) (COVID-19 investigation, review, and hazard correction); and subsection 3205.2(g)(2) (COVID-19 cases and close contacts).

Written comments on the Cal/OSHA proposal are invited, but must be received by 5:00 p.m. on October 31, 2022 at the Occupational Safety and Health Standards Board,

The State of California employs attorneys, judges, and other legal professionals in more than 100 state departments, agencies, boards and commissions. The union representing legal professionals employed by California sued the state because too many legal jobs at state departments, agencies, boards, and commissions are allegedly given to retirees rather than to rank-and-file state employees.

Courthouse News reports that California Attorneys, Administrative Law Judges and Hearing Officers in State Employment, or CASE, filed a lawsuit Tuesday in Fresno against the California Department of Human Resources, seeking a ruling that the the state is skirting its own rules when it comes to hiring retirees for positions that statutorily should go to rank-and-file employees. CASE argues that CalHR enjoys broad statutory authority over the employment practices of all state departments, agencies, boards, and commissions.

CASE, which represents about 4,500 legal professionals employed by the state, claims that California relies on so-called retired annuitants to fill jobs because they are cheaper, in so far as the state doesn’t have to pay pension contributions and many employee benefits that can add as much as 64% to the costs of hiring rank-and-file employees, and because they don’t require as much training.

“RAs almost invariably are employed to work at the department from which they retired, and typically served at that department as a rank-and-file employee for many years.” according to CASE. “As a result, RAs do not require any training, any orientation or onboarding, and are generally able to be productive workers from the first day of employment as an RA. As such, departments perceive the use of RAs as more attractive in the short term than hiring and training new employees.”

California currently employs at least 173 persons as retired annuitants in legal positions, distributed amongst at least 50 state departments, the union said.

There are state laws, however, that limit the hiring and reliance on retirees, according to the union. Retired annuitants are supposed to be temporary positions, but the Department of Human Resources has allowed departments to employ them indefinitely, according to the complaint. Departments also can’t hire a retired annuitant until at least 180 days after their retirement, but the department hasn’t enforced this condition either, the union said

In addition, the retiree must have specialized skills needed to perform the jobs for a limited period, according to the union.

“CalHR has refused to enforce the requirement that departments show that their RAs have any specialized skills that do not exist among rank-and-file state employees and has refused to enforce the requirement that RAs be employed for only a limited duration,” the union claimed. “CASE seeks to end the unlawful employment of RAs — at least as to attorneys and judges — and obtain from this court an interpretation of state law regarding the proper employment of RAs.”

The union is asking for the court to find that the Department of Human Resources’ interpretation of the meaning of “limited duration” and “specialized skills” is contrary to state law.

A spokeswoman for the Department of Human Resources said she’s unable to comment on pending litigation.The union is represented by Patrick Whalen in Sacramento.

CSV Hospitality Management LLC (CSV) filed a petition for a workplace violence restraining order against Jermorio Lucas. At the time of the hearing on CSV’s restraining order request, Lucas was living at the Aranda Residence, a residential hotel that provides supportive housing to formerly homeless individuals.

CSV submitted affidavits from four of its employees in support of the petition. The employees alleged that Lucas had been very aggressive and confrontational towards other tenants and Aranda Residence employees. For example, janitors Nelson Yee and Pedro Caamal stated that Lucas frequently subjected them to verbal abuse while they were working. He would also stalk them and take photos and videos of them without their consent. Caamal stated that during one such incident, Lucas forcefully pushed him into a window. Yee reported that Lucas had also confronted him at two local businesses when Yee was off duty.

Lucas filed a response to the petition. He denied all of the allegations against him. He stated that he recalled only one disagreement with Caamal, which involved a dispute over coronavirus social distancing protocols. He complained that Yee had addressed him with a racial slur and had harassed him, frequently watching him when he left the bathroom after showering. He indicated that he took Yee’s photograph in order to complain about him to the property manager.

The trial court granted a temporary restraining order and set the matter for an evidentiary hearing. Both parties were represented by counsel. At the hearing, only Yee and Lucas provided testimony consistent with their affidavits. Lucas then testified, answering questions posed by his attorney. He denied the allegations that Yee had leveled against him, asserting that Yee was harassing him and that he had repeatedly asked Yee to leave him alone.

Lucas’ counsel requested an opportunity to cross-examine Yee and any of the other witnesses. The trial court refused to allow Lucas’s counsel to cross-examine Yee concluding that the hearing was not a court trial, and there was no authority to allow cross-examination at such a hearing. The trial court then granted a three-year workplace violence restraining order. Lucas appealed, and the Court of Appeal reversed and remanded in the published case of CSV Hospitality Management v. Lucas – A163345 (October, 2022).

Code of Civil Procedure Section 527.6 authorizes a person who has suffered harassment to obtain an injunction to prevent further harassment. Section 527.8, subdivision (a) provides the same right to an employer for any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.

Injunctive proceedings under section 527.8 are intended to parallel those under section 527.6, which are procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment.

However, the Court of Appeal went on to say that although “injunctive proceedings under section 527.8 are truncated, respondents are still afforded the right to present their case.”

In the context of civil harassment orders, our courts have observed that “the procedure for issuance of an injunction prohibiting harassment is self-contained. There is no full trial on the merits to follow the issuance of the injunction after the hearing provided by Code of Civil Procedure section 527.6, subdivision (d). That hearing therefore provides the only forum the defendant in a harassment proceeding will have to present his or her case. To limit a defendant’s right to present evidence and cross-examine as respondents would have us do would run the real risk of denying such a defendant’s due process rights, and would open the entire harassment procedure to the possibility of successful constitutional challenge on such grounds.”

The workplace violence restraining order was reversed. The trial court was directed to issue an order terminating the restraining order, reinstating the prior temporary restraining order and setting the matter for a new hearing within the time period proscribed under section 527.8.

The National Council on Compensation Insurance (NCCI) published the first of four installments in its series on inflation and workers compensation medical costs. It explores price and utilization trends in medical services, and how each contributes to workers compensation costs in the four US geographical regions. This article also provides state-specific results.

An updated Consumer Price Index (CPI) for All Urban Consumers in August 2022 increased by 8.3 percent over the previous 12 months. This raises the key question “How is the current inflationary environment affecting WC medical costs? In short, “it’s complicated.” The NCCI article explores this question by showing how different types of medical services contribute to countrywide (CW)1 and regional WC medical cost trends. Its key observations include:

– – Medical inflation in WC has been moderate for the past decade. But with the recent dramatic rise in consumer prices, concerns have emerged about medical inflation rising at similar levels.
– – Two factors drive changes in medical claims costs: the price of medical services and utilization, which measures the mix and number of services provided to an injured worker.
– – NCCI’s most recent medical data shows that drug costs are declining, physician costs are up slightly, and facility costs are rising in the WC system.
– – In recent years, facility services are the dominant contributor to changes in WC medical costs across regions – most prominently in the Southeastern region.

Between 2012 and 2021, countrywide WC medical costs increased at 2% per year. The Southeastern and Midwestern regions grew the fastest at 2.3% and 2.0%, respectively. The other regions, Northeastern and Western, saw overall medical costs per claim growing at a slower average annual rate of 1.5% and 1.4%, respectively.

The regional comparison charts indicate that, in all four regions, the WC paid medical trends have been increasing at a slower pace than the corresponding regional CPI-M indexes. This is particularly the case in the Northeastern and Western regions.

WC medical costs in the Northeastern and the Southeastern regions each increased by an estimated 3%, while the Western and Midwestern regions increased by 2% and 1%, respectively. Every region except the Midwestern region had a slightly larger increase in 2021 WC medical costs relative to those observed between 2012 and 2019.

Future installments will expand on each of the different types of medical services discussed here – physicians, facilities, and prescription drugs. Subsequent articles in the series will include more in-depth regional differences in cost changes, and details about the make-up of the underlying services.

The Workers’ Compensation Insurance Rating Bureau of California has released its COVID-19 in California Workers’ Compensation – 2022 Update. This report details the characteristics of COVID-19 workers’ compensation claims in California and their impact on the state’s workers’ comp system.

As the economy has reopened and following the Omicron surge, COVID-19 claims continue to be a modest share of all indemnity claims.The winter surge from the Omicron variant peaked in January 2022 with almost 40% of reported indemnity claims from COVID-19. Beginning in February, COVID-19 claims dropped significantly but in recent months COVID-19 claims have been about 5% of reported indemnity claims.

Throughout the pandemic, the Health Care sector has had by far the highest proportion of indemnity claims involving COVID-19. Public administration, which includes some first responders, also had a high proportion of COVID-19 claims. Manufacturing had the second highest share of COVID-19 claims until late 2021. With the economy growing at the end of 2021 and into 2022, more COVID-19 claims were reported in the Accommodation & Food Services and Retail sectors than in Manufacturing.

More than one-half of COVID-19 claims were incurred by workers aged between 16-39, which is somewhat higher than the proportion of all indemnity claims incurred by younger workers. Almost 80% of COVID-19 death claims were incurred by workers aged 50 years or older compared to about one-third of all indemnity claims.

Far fewer COVID-19 claims are classified as medical-only claims than non-COVID-19 claims. More than 40% of COVID-19claims are indemnity claims with no medical losses incurred compared to less than 1% of non-COVID-19 claims. Most indemnity-only COVID-19 claims are relatively small and close quickly.

The vast majority of AY 2020 COVID-19 indemnity-only claims are small but there are a few large claims, mostly arising from fatalities, which are driving open COVID-19 indemnity-only claims to be costlier than non-COVID-19 claims.

Almost all AY 2021 indemnity-only claims have an incurred valueless than $5,000. A typical AY 2021 non-COVID-19 indemnity claim has incurred costs between $10,000 and $50,000 while a typical COVID-19 indemnity/medical claim has incurred costs less than $5,000. The share of COVID-19 claims over $500,000 is almost 5 times as high as for non-COVID-19indemnity claims.

Denial rates on COVID-19 claims have been higher than on non-COVID-19 claims as on average only about 8% of non-COVID-19claims are denied. Many COVID-19 claims are denied due to the lack of a positive test result for a COVID-19 infection. Generally, denial rates have been higher during the period Senate Bill No. 1159 has been in effect with its less expansive presumption of compensability than during the period the Governor’s Executive Order was in effect early in the pandemic.

For AY 2021 COVID-19 claims with indemnity and medical benefits typically have a shorter TD duration than do non-COVID-19 indemnity claims. Almost 90% of closed indemnity-only claims have a TD duration less than 2 weeks compared to 65% of AY 2020 claims at the same age.

Virtually all COVID-19 indemnity-only claims close quickly as they typically involve only short durations of TD with nearly all claims closed by 18 months. COVID-19 claims with both indemnity and medical on average close more quickly than non-COVID indemnity claims as more have relatively small incurred values.

Both indemnity and medical COVID-19 incurred losses have developed less since year-end 2021 than incurred losses on non-COVID-19 claims. This lower incurred loss development of COVID-19 claims has occurred because many COVID-19 claims close quickly and with only indemnity payments.