Category: Daily News

Employment lawyers say companies are watching closely how pandemic return-to-work rules play out nationally, as they look to bring workers back safely and to dispense with mask protocols. “It’s a hairball,” said Eric Hobbs, an employment attorney with Ogletree Deakins in Milwaukee. “It’s all very confusing.”

The report published by Reuters claims that in some states, return to work rules may require identifying those who got a COVID-19 shot with badges or bracelets, raising discrimination issues and complicating hiring in a tightening labor market as the pandemic eases.

The U.S. workplace safety regulator, the Occupational Safety and Health Administration, or OSHA, has not provided clear guidance on the issue. “We continue to let the employer make the determination how to properly do this for their workplace,” OSHA’s acting director, Jim Frederick, told Reuters.

The U.S. Centers for Disease Control and Prevention, which said last month that inoculated people can go without face coverings indoors in most places, has not addressed the thorny issue of how to establish whether someone has been vaccinated.

“What companies are debating right now, and we are too, is: is it necessary to specify on someone’s badge or wear something around their neck that, yes, they are vaccinated and therefore if they don’t have a mask on there’s nothing to worry about?” said Peter Hunt, vice president of brand protection and security at Flex Ltd, a product design and manufacturing company.

However, employers in California’s Santa Clara County, including Christopher Ranch, are required as of June 1 to ascertain if their workers have been vaccinated and check in every 14 days on those who say they have not or who decline to answer.

America’s largest garlic farm needs 1,000 workers to harvest its annual crop, but faces an unexpected hurdle in this year’s recruitment drive: it now must document and track the COVID-19 vaccine status of these seasonal laborers. The timing of the order, in the middle of the busy harvest season, couldn’t be worse.

Ken Christopher, the farm’s executive vice president, said the company has to develop a system to check who has been vaccinated while observing privacy laws and monitoring workers’ adherence to safety protocols and testing. “If the government wants to mandate (a vaccine), that’s one thing,” Christopher said. “But then requiring us to police it, that feels very unconventional.”

Workers in the Silicon Valley county who aren’t vaccinated or refuse to reveal their status to their employer must remain masked and should follow other protocols, such as limiting long-distance work travel and submitting to regular COVID-19 testing.

Christopher said he is considering a mask-free shift for vaccinated workers and another shift for workers who haven’t gotten their shot to avoid discrimination and tension. But asking farm laborers about their vaccination status and entering their details in a database could hurt recruitment efforts, he said.

“It’s the additional information being offered to the government,” said Christopher. “The more layers added on top, the more uncomfortable they are in seeking jobs here.”

Several states, including California, Michigan and Oregon, have their own rules or guidance on documenting vaccination status for workers but they are generally less strict than in Santa Clara County.

In Montana, however, a recently enacted law discourages employers from asking about vaccination status because it could lead to discrimination claims, according to employment lawyers.

In 2018, John Chrobagian was involved in a serious automobile accident in his company-provided vehicle. He was in field performing work for Ormco Corporation in servicing orthodontist accounts.

At some point in the day he engaged in a personal errand by stopping at a car dealership. From there he headed to his child’s school for pick up. While driving between these two locations Chrobagian was involved the serious vehicle accident and was injured.

He was a senior territory manager. The job duties required that he perform sales to existing accounts with orthodontists and develop new accounts as well within his territory covering primarily California and Nevada. He was not provided a fixed office location. Instead the employer provided a vehicle, cell phone and an email account.

He was expected to respond to any texts or emails through the cell phone/email account throughout the day. If he received a text or email while driving, he was expected to pull-over the vehicle and stop before responding to the text or email, or if applicant had a blue tooth connection, applicant could continue to drive and respond to the text/email, as long was such communication while driving complied with State law.

There was no prohibition on engaging in personal errands at the same time he was in the field performing his duties for the employer and that both can occur simultaneously.

The employer denied benefits claiming it did not occur in the course of employment. After a trial, the WCJ awarded benefits and found that the company vehicle as outfitted was for all intents and purposes a mobile office provided by the employer. He was at the beck and call of the orthodontists throughout the day and was expected to be at the ready to field any/all phone calls, texts and emails, wherever the applicant might be in an immediate manner.

The award was sustained in the panel decision of Chrobagian v Ormco Corporation, ( ADJ12278544 June 2021).

The going and coming rule is not applicable here because applicant was a salaried, mobile, regional sales person who essentially worked out of an employer provided vehicle. At the time of the injury, he was not engaged in a routine commute, to a fixed place of business, at fixed hours. Instead, he worked out of his vehicle making cell phone calls, sending and receiving emails, and driving throughout a large region that included California and Nevada to meet with clients.

Moreover, even if the going and coming were applied to applicant’s travel, the facts of this case bring it within several of the rule’s many exceptions. One of those exceptions consists of instances involving employer provided transportation.

In addition, the personal comfort doctrine holds that the course of employment is not broken by certain acts relating to the personal comfort of the employee, as such acts are helpful to the employer in that they aid in efficient performance by the employee. On the other hand, acts which are found to be departures effecting a temporary abandonment of employment are not protected.

Moreover, injuries sustained while the employee is engaged in an activity that has a dual purpose, which serves the business needs of the employer and the personal needs of the employee, occur in the course of employment.

Thus the WCAB panel agreed with the WCJ that the fact that applicant was injured while traveling between two personal errands did not remove him from the course of employment where he had already begun his work day as a mobile salesperson, working out of his employer provided vehicle, while available for any employment related communications, during compensated time.

The Occupational Safety and Health Standards Board adopted revisions to the COVID-19 Prevention Emergency Temporary Standards that account for recent guidance from the California Department of Public Health based on increases in the number of people vaccinated.

Governor Gavin Newsom signed an executive order enabling the revisions to take effect without the normal 10-day review period by the Office of Administrative Law – providing clarity and consistency for employers and employees as California fully reopens its economy. The revised standards took effect today.

The revisions include the following:

– – Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.
– – Fully vaccinated employees do not need to wear face coverings except for certain situations during outbreaks and in settings where CDPH requires all persons to wear them. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.
– – Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.
– – Employees are explicitly allowed to wear a face covering without fear of retaliation from employers.
– – Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.
– – Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.
– – Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.
– – Employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated.
– – Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
– – Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the revised emergency standards. The webpage contains an updated fact sheet and Frequently Asked Questions about proposed revisions to the emergency temporary standards. In addition, Cal/OSHA is currently updating its model COVID-19 Prevention Program in English and Spanish and information on planned webinars hosted by its Consultation Services Branch.

Employers with Questions on Requirements May Contact: InfoCons@dir.ca.gov, or call your local Cal/OSHA Consultation OfficeStakeholders Who Wish to Comment on the Rulemaking Process May Contact: oshsb@dir.ca.gov

As the Fresno Police Department struggles with a staffing and recruitment problem, Police Chief Paco Balderrama and the City Council during its budget hearing on Tuesday also tackled another department challenge: long-term absences. And the Fresno Bee reported some of the comments made about this problem.

In a related issue discussed at the same meeting, Councilmember Esmeralda Soria pointed out that since 2012, the police department’s workers’ compensation costs steadily climbed, from about $4.96 million 10 years ago to $11.4 million in the upcoming fiscal year 2022 budget. That incline in costs continued to occur despite the adoption in 2015 of an alternative dispute resolution program meant to reduce the number of days officer were out of work and the resulting workers’ compensation costs.

Last year, Soria called for an audit of that program, which apparently never happened.

The department is operating with just under 700 officers, and Mayor Jerry Dyer charged Balderrama with recruiting 120 new officers in 15 months to boost the department’s ranks. It was noted however, that long-term absences are exacerbating the staffing problem.

Balderrama said when he first took the helm of the department in January, over 100 officers were on long-term leave. Since then, that number dropped to 80, but the problem persists. Fresno Police Department’s system pays officers more to stay home, he said.

“What we have here is we have a system like I’ve never seen before,” he said. “The fact that you can be off of work, and you could actually make more money than you do coming to work, so there’s not a whole lot of incentive. … I believe that there was very little to no accountability before.”

To tackle it, Balderrama created an employee services investigative unit to manage workers’ compensation claims and follow up with employees and their doctors if they’re out on extended leave for an injury or medical reason.

“My officers that are working the streets every night are tired of doing it with skeleton crews,” Balderrama said. “If I could wave a magic wand and bring these 80 people back tomorrow, we’d be in a lot better position right now.”

Councilmember Esmeralda Soria wondered if it was appropriate for law enforcement officers to investigate those claims.

“The reason (the chief) is using law enforcement, we’re viewing it as a criminal activity,” City Manager Thomas Esqueda said. “If you are, you know, gaming the workers’ comp system, that’s criminal activity. That’s why we’re having police officers investigate that stuff.”

Mayor Dyer said city officials need to look into all of the contributing factors more deeply, but he thinks the workers’ comp fraud unit was a good place to start.

Bulkley & Associates, LLC is a Hopkins County, Texas, company that transports refrigerated goods interstate.

In 2015, a Bulkley truck driver fell off a truck and was injured while delivering goods to a customer in Salinas, California.

Defendant Department of Industrial Relations, Division of Occupational Safety and Health of the State of California, cited Bulkley and assessed penalties for three violations of California health and safety law: (1) failing to timely report an injury to California authorities, (2) failing to develop an injury-prevention program compliant with California law, and (3) failing to require foot protection in accordance with California law.

Bulkley pursued administrative appeals in California, disputing the Department’s authority to require Bulkley to comply with California law. Bulkley lost and has since filed two lawsuits challenging the Department’s authority.

Bulkley I began in 2018, when Bulkley filed a petition for mandamus in Hopkins County court, seeking judicial review of the California administrative appeal that Bulkley lost. The Department removed the petition to federal court, and promptly moved to dismiss for lack of personal jurisdiction. Bulkley argued that the Texas court had personal jurisdiction because Bulkley is a Texas resident and because the California law authorizing judicial review of agency action directs litigants to the county court where they reside.

Bulkley also argued that the Department had minimum contacts with Texas because the citations “penalized Bulkley for its work rules and procedures, which were created and implemented in Texas.” They did not prevail in Bulkley I.

After Bulkley I and before Bulkley II, in August 2019, the Department sent Bulkley a letter to collect the unpaid penalties of $6,180, informing Bulkley that the Department would pursue a judgment in California court if Bulkley failed to pay. On September 9, 2019, the Department sent Bulkley another letter, referencing violations of California law “observed during the inspection completed on 09/04/2015 [at] the place of employment” “maintained by” Bulkley and located in Salinas, California.

Bulkley sought and obtained injunctive relief in Hopkins County court (commencing Bulkley II, the current case), pointing to the September 9, 2019 letter as proof that the Department had possibly inspected Bulkley in Texas and was threatening to do so again.

The Department again removed the action to federal court and again moved to dismiss for lack of personal jurisdiction. The district court again concluded the Department lacked minimum contacts and dismissed Bulkley’s complaint for lack of personal jurisdiction.

The United States Court of Appeals for the Fifth Circuit affirmed the dismissal in the case of Bulkley & Associates, L.L.C., v Department of Industrial Relations, Division of Occupational Safety and Health of the State of California.

The Department did not establish minimum contacts solely by way of sending the September 2019 letter. And the possibility that the Department has inspected or will inspect Bulkley in Texas does not establish minimum contacts. It does not matter if the Department’s letter instructed Bulkley to remedy violations of California law, which Bulkley could only do by changing its policies in Texas.