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Category: Daily News

OSHA Issues Respirator Interim Guidance

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The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim enforcement guidance to help combat supply shortages of disposable N95 filtering face piece respirators (N95 FFRs). The action marks the department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available.

Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators.

If respiratory protection must be used, employers may consider use of alternative classes of respirators that provide equal or greater protection compared to an N95 FFR, such as National Institute for Occupational Safety and Health (NIOSH)-approved, non-disposable, elastomeric respirators or powered, air-purifying respirators.

When these alternatives are not available, or where their use creates additional safety or health hazards, employers may consider the extended use or reuse of N95 FFRs, or use of N95 FFRs that were approved but have since passed the manufacturer’s recommended shelf life, under specified conditions.

This interim guidance will take effect immediately and remain in effect until further notice. This guidance is intended to be time-limited to the current public health crisis. Visit OSHA’s Coronavirus webpage regularly for updates.

For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

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Thousands of Payroll Bail Out Loans Fund on First Day

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President Donald Trump’s Paycheck Protection Program (PPP) through the Department of Treasury and Small Business Administration has already on its first day pushed out more than $757 million to small businesses nationwide mostly through community banks.

The Paycheck Protection Program is part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This is a nearly $350-billion program intended to provide American small businesses with eight weeks of cash-flow assistance through 100 percent federally guaranteed loans.

A senior Treasury Department official reported that as of 11:00 a.m. eastern time, a total of 1,926 loans were given out through 245 different banks for a total of 756,985,76.

Most of the big banks like JP Morgan Chase, Wells Fargo, and Citigroup did not have programs online – only Bank of America did – by this time, so this means community banks nationwide are the ones stepping up to push the money out to small businesses affected by the coronavirus crisis.

“When the unprecedented PPP loan program for America’s small businesses went live in the early morning hours of April 3, the community banks were the ones ready to go,” the senior Treasury Department official told Breitbart News. “Unlike the big banks that are coming online later in the day, the community banks were up and running and ready to serve their small businesses. America’s community banks are the real heroes.”

As community banks are the ones stepping up to help small businesses at such a rapid pace on the first day of the program, this fact counters the narrative from some on the left and in establishment media that somehow the efforts of Trump, Treasury Secretary Steven Mnuchin, and the broader administration were designed to only help big corporate cronies.

Friday, as Mnuchin and Small Business Administration administrator Jovita Carranza announced at the White House Coronavirus Task Force briefing on Thursday night, is the first day these funds are going out to small businesses nationwide through banks across the country. The Paycheck Protection Program, or PPP, passed as part of the $2.2 trillion phase three coronavirus relief package that Congress passed last week.

Since this money is going directly to small businesses across the country, and since it is mostly flowing through small community banks, it is significantly boosting communities and main street across the country rather than Wall Street. “This is the Main Street rescue, not a Wall Street bailout” the senior Treasury Department official added.

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DWC Adjusts DMEPOS and ASC Sections of Fee Schedule

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The Division of Workers’ Compensation has posted an order adjusting the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes:

— The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) April 2020 Addendum A quarterly update
— The CMS Medicare OPPS April 2020 Addendum B quarterly update
— The CMS Ambulatory Surgical Center Payment System, April 2020 ASC Approved HCPCS Code and Payment Rates, Column A entitled “HCPCS Code” of “Apr 2020 ASC AA” and Column A entitled “HCPCS Code” of “Apr 2020 ASC EE”
— Certain sections of the CMS Medicare OPPS April 2020 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V21.1 R1 Apr 2020 quarterly update
— CMS April 2020 Update of the Hospital Outpatient Prospective Payment System (OPPS), Change Request (CR) 11691 (March 25, 2020), Transmittal R10013CP

The Division of Workers’ Compensation (DWC) has also posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule.

The orders adopting the OMFS adjustments is effective for services rendered on or after April 1, 2020 and is posted on the DWC website.

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OSHA Declares Coronavirus to be a Recordable Event

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Earlier this month, the Occupational Safety and Health Administration declared that coronavirus was a recordable injury – meaning an employer would have to notify the federal safety agency when a worker caught the disease at work- and issued guidance to that effect.

OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

— The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
— The case is work-related, as defined by 29 CFR 1904.5; and
— The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Bloomberg news reports that safety attorneys said the guidance left confusion about how to prove whether a worker actually contracted the virus on the job.

Health-care workers and emergency responders will benefit from rules eased in some states around workers’ compensation that will allow them to collect benefits if they can prove they caught Covid-19 on the job. Some say essential workers like grocery store employees and delivery workers also should qualify.

But employers need to be aware of the changing rules, and be prepared for the likely end result – skyrocketing premiums.

State workers’ compensation boards around the country are amending rules for benefits payouts to include health-care workers exposed to the virus and then quarantined.

Attorneys are keeping a close eye on the questions, such as who should be eligible to receive benefits, how does a worker prove they caught Covid-19 on the job, and how will an influx of successful claims affect businesses’ premiums to insurance carriers.

“If everybody who gets sick on the job is able to file a compensation claim and everyone is successful, it may bankrupt a company,” said Michael Duff, a workers’ compensation professor at the University of Wyoming.

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WCAB Transitions to Free Teleconference Hearings

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Robert Rassp, the Los Angeles District Office Presiding Administrative Law Judge just made the following announcement to his staff:

Dear LAO Judges

I have some good news for all of us. Effective very soon, we will inaugurate a new program statewide to replace Court Call. I am calling the program for us “LAO LIVE.” First and foremost, this program will be free to parties who appear at the WCAB District Offices. This is how the program will work:

1. Each WCJ will get a new conference phone number issued by AT&T (there are 175 conference lines ordered)
2. Each WCJ will have a PIN to access the conference line
3. The parties will have a conference code that links to a WCJ’s phone conference line.
4. You will be able to conduct MSCs, STCs, PCs, EHs, and some trials on this conference call line.
5. You or your SLT can first obtain everyone’s names and email addresses for your docket. You can conduct hearings like in Superior Court or you can have your SLT obtain the names, email addresses of parties appearing in advance of the conference calendar so you can have your SLT email parties for each case and have them call in one at a time. Either way will work.
6. For your Conference calendars you conduct them the same way you have conducted hearings using Court Call so you can have everyone put their phones on mute while you call your calendar. Or you can conduct the hearings by having either you or your SLT telling people via email to call in one at a time. You can have meaningful discussions about cases like you would as if the parties were physically in your courtroom standing in line to speak to you.
7. You should be able to conduct EHs or simple trials (such as submissions on the record) on the phone with exhibits identified via the EAMS printout and the PTCS being completed before a hearing and at the time of the hearing to verify any changes in Stips and Issues per 8 CCR 10517 (formerly 10492)
8. You will be able to simplify issues for trials and eventually continue trials until you can do a face to face trial when the pandemic is under control.
9. Applicants who are not represented will have to mail their exhibits to the District Office for scanning and uploading into EAMS

The tentative launch date for this is in two weeks. So next week (April 6) we will continue to use Court Call. Hopefully we can roll out the program on April 13. If you have questions, please feel free to email me back even though today is a holiday. Or you can text me on our group text.

Very truly yours,

Robert G. Rassp
Presiding Administrative Law Judge
Workers’ Compensation Appeals Board Los Angeles
(213) 576-7383

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Floyd Skeren Announces Follow Up – Free HR Webinar on COVID–19

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Please join Bernadette M. O’Brien, ESQ., SPHR, of Floyd Skeren Manukian Langevin, along with Senior Partners John B. Floyd, Esq., and Amanda A. Manukian, Esq., with special guest Rene Folse, J.D., PH.D. and Brittany Cufaude, CEO of Joyful Classrooms for updated information on important COVID-19 topics for employers, human resources administrators, and risk managers.

This is a free follow up to our webinar last Friday with updated information on dealing with COVID-19 in the workplace.  

Featured Topics Include:

— The latest in workplace laws that may be triggered by COVID-19;
— A review of potential workers’ compensation issues related to COVID-19, including:
—- A possible presumption that a COVID-19 exposure or positive test is employment-related for essential workers; will there be a surge in COVID-19 WC claims;
—- 132a claims and discrimination against an infected employee or an employee who is perceived to have COVID-19; defense strategies including “ubiquitous vs. peculiar risk doctrine”;
—- Practical guidance for claims adjusters and employers on handling COVID-19 claims;
— The most up to date information on what leave an employee may be entitled to who is ill, or who needs to care for a family member who is ill with COVID-19;
— What does the new federal law, “Families First Coronavirus Response Act”, provide for eligible employees in terms of paid sick leave/family and medical leave;
— What leave may be required for parents with children home from school;
— Can employers require that an employee’s temperature be taken before beginning their work shift;
— Can employers send employees home who appear sick with a cold or flu;
— Can employers require a release to return to work from an employee, if COVID-19 is suspected upon employees request to return to work;
— If the workforce shuts down, must employees be paid, and what about benefits;
— Information on workers who are 65 and older or at a higher risk for exposure to COVID-19;
— Coronavirus fear: guidance on responding to employees who request to work remotely or not return to work due to concerns that a co-worker has COVID-19;
— Considerations for a remote workforce;
— Furloughs versus layoffs, the WARN Act and CARES;
— Information and examples for employers and employees about educational and training tools for children at home due to school closures.

REGISTER TODAY!

DATE: Friday, April 3rd, 2020 TIME:10:00 am – 12:00 pm Pacific Standard Time
PRICE: – FREE!
Contact:  Rebecca.zandovskis@floydskerenlaw.com for assistance.

Bernadette M. O’Brien is a Partner at Floyd Skeren Manukian Langevin, LLP, and an SPHR/SHRM-SCP certified Human Resources Consultant.

Ms. O’Brien is author of the LexisNexis publication Labor and Employment in California: A Guide to Employment Laws, Regulations and Practices, co-author of California Leave Law: A Practical Guide for Employers, and co-author of California Unemployment Insurance and Disability Compensation Programs.

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DWC Adopts Covid-19 HCPCS Level II Testing Codes

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The Administrative Director of the Division of Workers’ Compensation has ordered that the pathology and clinical laboratory portion of the Official Medical Fee Schedule adopted in title 8, California Code of Regulations, section 9789.50, is adjusted to conform to changes to the Medicare payment system that were adopted by the Centers for Medicare & Medicaid Services (CMS) for services rendered on or after April 1, 2020.

The update includes fee schedule changes identified in CMS Transmittal 4541, Change Request CR11681, which may be accessed on the Medicare website.

The CMS has adopted two new Health Care Common Procedure Coding System (HCPCS) Level II codes, U0001 and U0002, for use in diagnosing the novel corona virus, Covid-19. The HCPCS Level two codes U0001 and U0002 are adopted for services rendered in the workers’ compensation system.

HCPCS Codes U0001 and U0002 are listed in the CMS 20CLABQ2 file, but fees are not set forth as National payment amounts are not yet set. In the meantime, Medicare uses the fees determined by the local Medicare Administrative Contractor as the Medicare rate. These fees are based upon the CMS’ Medicare Administrative Contractor’s local rate for California as published by CMS in the document entitled “Medicare Administrative Contractor (MAC) COVID-19 Test Pricing March 12, 2020”.

For workers’ compensation, the maximum reasonable fee is 120% of the Medicare rate pursuant to Labor Code section 5307.1.

Code: U0001
Short Descriptor: 2019-nCoV diagnostic P
Long Descriptor: CDC 2019 Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel
Medicare Fee: $35.91
Maximum workers’ compensation fee: $43.09

Code: U0002
Short Descriptor: COVID-19 lab test non-CDC
Long Descriptor: 2019-nCoV Coronavirus, SARS-CoV-2/2019-nCoV (COVID-19), any technique, multiple types or subtypes (includes all targets), non-CDC
Medicare Fee: $51.31
Maximum workers’ compensation fee: $ 61.57

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Negligence in Obtaining Green Card not Barred by Exclusive Remedy

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Michael Reynauds, a British citizen, moved to Los Angeles in 2005 to attend business college. In 2007 he accepted a job withTechnicolor as a “global associate.” Technicolor arranged and sponsored a series of temporary work visas for Michael, allowing him to remain in Los Angeles.He married Fiona, also a British citizen and had two daughters.

His work visa was set to expire in a few years, so Michael asked Technicolor, toward the end of 2013, to sponsor him for a green card. Technicolor’s mobility manager, indicating that the company had agreed to sponsor him. However over the following years Technicolor did not process the paperwork on time.

The Reynauds sued Technicolor for negligence, alleging that Technicolor breached its assumed duty of due care “by failing to initiate the green card process” If not for Technicolor’s breach, the Reynauds “would have obtained a green card and would not have been forced to move back to England in the face of deportation proceedings.”

A Los Angeles jury found that Technicolor had been negligent. Judgment was entered in the amount of $803,838.30 for economic damages and $2,083,920 for noneconomic damages, for a total award of $2,887,758.30.

Technicolor appealed, arguing, first, that the verdict is unsupported by substantial evidence and, second, that the damages awarded for emotional distress are, at least in part, barred by workers’ compensation exclusivity. The Court of Appeal disagreed with each of these contentions and affirmed the judgment in the published case of Reynaud v Technicolor Creative Services USA, Inc.

Though not cited by either party, the Court found DerKevorkian v. Lionbridge Technologies, Inc. (10th Cir. 2008) 316 Fed.Appx. 727 [nonpub. opn.] (DerKevorkian), 2008 U.S. App. `Lexis 24566 to be both factually analogous and persuasive on the applicability of workers’ compensation exclusivity to the Reynauds’ claims.

That case also involved a “dispute arising out of an [employer’s] effort to obtain a permanent resident ‘green card’ for a foreign employee”, Isabelle DerKevorkian, in Colorado. Like Michael’s, DerKevorkian’s temporary work visa was set to expire and she needed to obtain a green card to remain in the United States. Her employer, Lionbridge, maintained a program that assisted employees applying for green cards. To participate, DerKevorkian agreed to work for Lionbridge for two years after obtaining the green card and to use an immigration attorney retained by the company. After numerous complications arose, Lionbridge did not file an application to sponsor the green card, and DerKevorkian left the country.

DerKevorkian sued Lionbridge. The case was ultimately tried to a jury, which returned verdicts against Lionbridge on DerKevorkian’s claims for breach of contract, breach of fiduciary duty, and promissory estoppel and awarded noneconomic damages.

As with California, under Colorado law, workers’ compensation is “the exclusive remedy for personal injuries ‘arising out of and in the course of the employee’s employment.’ [Citation.]” On appeal, while the Tenth Circuit agreed with Lionbridge that DerKevorkian’s depression and anxiety were the type of injuries that could be compensable under workers’ compensation, it disagreed that workers’ compensation exclusivity applied because her “injuries did not occur in the course of or arise out of her employment.”

Rather, the court reasoned, DerKevorkian’s injuries “came about because of a completely separate agreement to assist her with her green card application.

The Court of Appeal in Renaud concluded that workers’ compensation exclusivity is inapplicable here for the same reasons.

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DWC Emergency Measures for Med-Legal Evaluations

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In line with Governor’s Newsom’s stay-at home order in response to the COVID-19 crisis issued on March 19, the Division of Workers’ Compensation (DWC) encourages primary treating physicians to continue to manage injured workers’ care through telehealth options whenever medically appropriate. Telehealth options include remote visits via video-conferencing, video-calling or similar such technology that allows each party to see each other via a video connection. These are viable alternatives to in-person physical examinations for medical-legal evaluations.

DWC urges all parties to work together with the primary treating physician to anticipate and resolve any potential disputes that may result from a request for a medical-legal evaluation by a Qualified Medical Evaluator (QME).

During the stay-at-home order (up to May 1, 2020), DWC finds that it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary. DWC strongly recommends that all of the following conditions apply to a telehealth evaluation to promote the health and safety of all parties:

1. The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home order.
2. The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
— a. An evaluation relating to whether or not the injury is Arising Out of Employment/Course of Employment (AOE/COE),
— b. Termination of an injured worker’s indemnity benefit payments, or
— c. Work restrictions
3. There is written agreement of the injured worker, carrier or employer, and the QME.
4. The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
5. The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.

DWC encourages all parties to evaluate whether medical-legal evaluations (which involve in-person physical evaluations) should be cancelled or postponed as part of the stay-at-home response to COVID-19. In some instances, a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations should be postponed or canceled, if it requires the injured worker or others to travel and interact with anyone outside of their immediate household.

A note on telehealth visits during this emergency: The decision as to when a telehealth visit can be employed must rest on the principles of appropriate and ethical medical practice. An in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed.

DWC understands that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation, or for serving a medical-legal report, may be impractical or impossible during this public health crisis. During the month of April, DWC encourages parties to agree upon reasonable allowances and agreements.

The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence is determined in accordance with applicable laws and is not altered by these emergency measures.

At the end of April, DWC will reevaluate whether additional emergency responses related to QME telehealth evaluations are necessary due to the COVID-19 crisis.

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DWC Announces WCAB Offices Status Updates

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All Division of Workers ’ Compensation (DWC) district offices, with the exception of the Eureka satellite and Bakersfield offices, are open. The Eureka office will remain closed until further notice. The Bakersfield office will be closed on Tuesday, March 24, and Wednesday, March 25, to perform enhanced cleaning and disinfection due to potential COVID-19 exposure.

The Bakersfield office will reopen on Thursday, March 26.

To ensure the safety of our employees, DWC will implement procedures in keeping with public health guidance on social distancing. Therefore, DWC will have limited staffing in each district office but will maintain all essential functions. DWC is closely monitoring the situation and will update the public of any changes.

DWC and WCAB announced March 16 that they are limiting court appearances to protect the health and safety of our staff and the community, in accordance with numerous public health orders suggesting that public gatherings be limited.

March 23 through April 3: DWC will hear expedited hearings for parties that appear at the district offices. DWC will also hear status conferences, mandatory settlement conferences and priority conferences via CourtCall only. If all parties do not appear via CourtCall the case will be continued and notice will be given. All other hearings will be continued. No trials or lien conferences will be heard during this time.

March 17 through April 3: DWC’s district offices are closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 6. DWC will not accept walk-through documents, walk-in filings, or any in-person requests until the district offices reopen for filing purposes. The Division’s Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefit Trust Fund and Legal Unit are open for essential services only and will have limited staffing during this time.

The WCAB Commissioners and staff are working remotely. The Commissioners’ office is closed to the public until further notice. Future updates will be issued through the Division’s website. Please continue to check the website for current status.

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