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Tag: 2020 News

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

Please join Bernadette M. O’Brien, Esq., SPHR, of Floyd Skeren Manukian Langevin, along with Senior Partner Amanda A. Manukian, Esq., for the latest on important topics for employers, human resources administrators, risk managers, and claims adjusters on COVID-19 including:

— Week of May 4, 2020-New COVID-19 developments in workers’ compensation and employment law impacting the workplace;
A closer look at:
— DOL’s enforcement of paid sick leave laws
— Sample FFCRA letter to eligible employee
— Sample letter to workforce re employee with COVID
— Update: temperature screening of employees
— Update: Are essential employees who are home due to a “fear of COVID-19” entitled to leave protections?
— A review of new workers’ compensation claim scenarios including a focus on a post-termination COVID-19 claim and defense strategies;
— Updated common questions.

Friday, May 8, 2020 from 10:00 am until noon. Webinar is free. Please register online

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..

COVID-19 Triggers Increase in Opioid Deaths

Amid social distancing, authorities nationwide are reporting a surge in fatal opioid overdoses. Addiction and recovery advocates say the U.S. is now battling two epidemics at once. From 1999 to 2018, opioid overdoses involving prescription and illicit drugs have killed nearly 450,000 Americans. (One recent study found an additional 99,160 opioid deaths, previously unreported because of incomplete medical records.)

Montgomery County, Ohio, was considered the country’s overdose capital in 2017 – is reporting a 50 percent jump in overdoses over last year. Coroner Kent Harshbarger suggested to one local news outlet this increase could be closer to 100 percent: “March had around 42 which, our normal baseline is somewhere in the 20s usually. So 42 is a significant increase.”

Indeed, authorities in counties across Florida, Texas, Pennsylvania and New York are also reporting rises in overdoses during the COVID-19 crisis.

Helen Jones-Kelley, the executive director of Montgomery County Alcohol, Drug Addiction and Mental Health Services, said her agency is redoubling efforts to get in front of the spate of overdoses. That includes delivering naloxone kits to households with a history of drug abuse and reviewing ledgers to see whose kits are expired. She said her task force is penning personal notes for those who might be struggling, and informing people about telehealth treatment options for addiction.

While some Americans struggle to find toilet paper and cleaning supplies during the pandemic, the country’s drug users are also facing a dwindling supply.

COVID-19 has interrupted the global supply chain of illicit drugs, including the synthetic opioid fentanyl. One key supplier in Wuhan, China—the world’s first coronavirus epicenter, and a hub for precursor chemicals used to create synthetic opioids – closed shop earlier this year.

Last week, the Los Angeles Times reported that one of Wuhan’s biggest customers, Mexican drug cartels, are being stymied by a reduction in exports and new travel restrictions to the United States, leading to a hike in illicit drug prices.

The increased cost for drug users is a key concern, according to Glenn Sterner, an assistant professor of criminal justice at Penn State Abington.

“Just like we’re having trouble finding paper products and stuff in grocery stores, traffickers are having issues trying to find the chemicals to make our drugs,” said Sterner, a member of the Opioid Overdose Task Force for the State of Pennsylvania.

“In some ways this is a good thing,” Sterner added. “We’re actually seeing less of these substances in our communities in some areas. If we can’t get on planes, neither can the drugs.”

But Sterner says in places with a shortage of heroin, prices will go up and put a bigger strain on drug users experiencing poverty. That in turn could lead to an increase in criminal activity, as people seek money to buy drugs, and to a spike in the use of other drugs like methamphetamine, which is becoming more widely available. He said addiction treatment for meth, however, isn’t as robust as that for opioids.

Meanwhile, people might unknowingly be consuming less potent versions of drugs like heroin, which could be diluted in face of shortages. Sterner said that once the supply chain reemerges, it could open the floodgates to more overdoses, as drugs will be more potent and come at a cheaper post-coronavirus price.

Scams and Fraud Involving CARES Act Economic Payments

U.S. Attorney McGregor W. Scott and Rod Ammari, Special Agent in Charge of the Treasury Inspector General for Tax Administration (TIGTA), Office of Investigations, Western Field Division, warned the public to be aware of scammers attempting to intercept Economic Impact Payments being delivered by the Internal Revenue Service.

U.S. Attorney Scott and SAC Ammari announced an effort to provide taxpayers with the necessary information to avoid falling victim to criminals using this pandemic as an opportunity to commit fraud. TIGTA has established a website for citizens to report IRS-related Coronavirus scams at tips.TIGTA.gov. You may also contact TIGTA’s investigative offices in Fresno at 559-458-7377 or in Sacramento at 916-974-5774.

Most eligible taxpayers will receive their payment through direct deposit into their bank account. Taxpayers that traditionally receive tax refunds via paper check, including many elderly citizens and those who do not use banking services, will receive their payments via U.S. Treasury check delivered by mail by the U.S. Postal Service.

“During this national emergency, all Californians must remain vigilant against those who are plotting ways to scam them out of their COVID-19 economic impact payments,” said U.S. Attorney Scott. “It is critical that suspicious calls and efforts are immediately reported to law enforcement.”

“TIGTA is the agency responsible for protecting the integrity of Federal tax administration, including attempts to impersonate the IRS to defraud taxpayers,” said Special Agent in Charge Ammari. “We are committed to working with our law enforcement partners to investigate and bring to justice any individual or organization that engages in criminal activity and exploits this national crisis as a means to commit fraud.”

U.S. Attorney Scott and SAC Ammari offered the following tips on how to identify and report attempted scams involving the Economic Impact Payments:

The IRS will not call you, text you, or email you to prompt you for more information as a prerequisite to getting an Economic Impact Payment.
To check on the status of your Economic Impact Payment, please visit www.IRS.gov and click on “Get My Payment.” Only use the website www.IRS.gov. Do not use any other websites or services that claim to be able to process your Economic Impact Payment or act as an intermediary between you and the IRS. Similarly, do not click on any links in e-mails that purport to take you to the IRS website. The best practice is to manually type “www.IRS.gov” into your web browser.
Anyone who calls you claiming to be from the IRS and offering to process your Economic Impact Payment is impersonating the IRS. Do not share any personal or financial information with these scammers.
Do not share your personal information with anyone, whether claiming to be from the IRS or some other business or government agency, offering to assist you with your Economic Impact Payment. Payments will be delivered by the IRS through direct deposit or via U.S. Treasury check delivered by mail by the U.S. Postal Service.
Do not share your online banking username or password with anyone. The IRS does not need your online banking username and password in order to send your Economic Impact Payment.

After your Economic Impact Payment has been sent, the IRS will send you a letter confirming your payment. If you receive this letter, but you have not received your Economic Impact Payment, please report the missing payment to TIGTA through our website at tips.TIGTA.gov. You will also need to report the missing payment separately to the IRS.

Scams and Fraud Involving Fake COVID-19 Cures

Hundreds of COVID-19-related scams, many of which operated from websites that advertised fake vaccines and cures, operated fraudulent charity drives, delivered malware, or hosted various other types of scams, have been disrupted by US law enforcement, according to an announcement by the Department of Justice.

As of April 21, 2020, the FBI’s Internet Crime Complaint Center has received and reviewed more than 3,600 complaints related to COVID-19 scams, said the DOJ statement.

Federal agencies then worked to analyze the complaints and investigate the scams, ultimately shuttering hundreds of malicious domains.

Among the scams closed were a fraudulent site claiming to be soliciting donations for the American Red Cross. Several other sites were impersonating government programs to trick people into entering sensitive personal information such as banking details and others which distributed malicious software.

“The department will continue to collaborate with our law enforcement and private sector partners to combat online COVID-19 related crime,” said Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division.

To combat the scams, the DOJ worked with agents and investigators from the FBI, the Secret Service, as well as others in both the public and private sector.

“Keeping pace with the growing threat of cyber-enabled COVID-19 scams requires an alliance between the private sector and our law enforcement partners to safeguard our nation from this sort of nefarious conduct,” said Director James M. Murray of the U.S. Secret Service.

According to the statement, The DOJ is also working with international partners to support similar initiatives in other countries.

“In one Justice Department-supported action, a state prosecutor in Brazil took down a fake site purporting to belong to a leading Brazilian brewery,” said the statement. “The website publicized the distribution of free sanitizer, but in fact was infecting the computer systems of numerous Brazilian consumers with malware.

Across the Atlantic, the UK’s National Cyber Security Center (NCSC) has also taken on COVID-19 related scams. Within a day of establishing a reporting service for suspicious emails, the NCSC took down 80 malicious web based campaigns, according to a statement released Wednesday.

“While we have not seen a rise in email scams in the last month, coronavirus is the top lure currently used to conduct cyber crime, exploiting public unease and fear of the pandemic,” said NCSC Chief Executive Officer Ciaran.

“We hope the success of the Suspicious Email Reporting Service deters criminals from such scams, but if you do receive something that doesn’t look right forward the message to us – you will be helping to protect the UK from email scams and cyber crime,” he added.

Wave of COVID-19 Lawsuits Hit State and Federal Courts

Hundreds of lawsuits stemming from the coronavirus pandemic are rapidly amassing in state and federal courts, the first wave of litigation challenging decisions made early during the crisis by corporations, insurance companies and governments.

According to the report published by SFGATE, claims have been filed against hospitals and senior-living facilities, airlines and cruise lines, fitness chains and the entertainment industry – 771 as of Friday, according to a database compiled by Hunton Andrews Kurth, an international law firm tracking cases that emerge from the pandemic.

Complaints reach across industries and state lines. Some seek significant monetary damages. Others ask for a judge to correct actions alleged to be harmful or in violation of contractual agreements.

In New York more than 250 lawsuits have been filed – the most of anywhere in the nation by far. Among them, is a set of lawsuits brought by a nurse’s union against the state and two hospitals. They say officials failed to appropriately protect hospital workers with sufficient personal protective equipment (PPE) and ensure a safe workspace for those at higher risk of contracting the illness.

A similar suit was brought by a union representing state employees in Alaska.

Families who’ve lost loved ones at a senior-living residence in Atlanta have accused the facility of failing to protect its residents, alleging it allowed events and group meals to continue even as family visits were curtailed.

Jodi Gill, a criminal justice professor at Penn State University, is the named plaintiff in a class-action suit brought against Pennsylvania’s health department for what she says is its failure to properly monitor the state’s nursing homes, including the facility – Brighton Rehabilitation and Wellness Center in Beaver, Pennsylvania – where her 81-year-old father lives. Nursing homes there have recorded 60 deaths due to the virus, according to state data.

A devout man in Washington state, home to the country’s first confirmed case of the novel coronavirus, sued its governor for setting policies that prohibit the small weekly Bible study he hosts at his home.

Other claims focus on voting rights and the potential expansion of absentee balloting. As it gets closer to the November general election, there are likely to be new petitions seeking judicial intervention, citing quandaries and concerns over access to the polls.

In California, customers have gone after a yoga studio and a massage parlor. A ski resort chain based in Denver also has been sued in the Golden State.

A number of class actions have been filed, including against Ticketmaster for its handling of canceled live events. One suit alleges the box office behemoth, and its parent company Live Nation, “sought to force their customers to bear the brunt of their own shortsightedness,” according to the complaint filed in U.S. District Court for the Northern District of Illinois.

Disrupted travel accounts for several claims. The nation’s major airlines – now on life support, dependent on billions in government relief funds – have been sued over policies preventing customers from obtaining cash refunds for travel that never transpired because of the pandemic.

Senate Majority Leader Mitch McConnell, R-Ky., has indicated he intends to address protections for businesses when the Senate reconvenes next week. “Our response,” McConnell said, “must not be slowed, weakened, or exploited to set up the biggest trial lawyer bonanza in history.”

California Legislature Re-Convenes With Major Comp Issues

Legislators return to the state Capitol on May 5 for the first time in nearly two months, confronting an urgent need to deal with coronavirus legislation including workers’ compensation, and a formidable budget deficit.

The coronavirus pandemic has blown a multibillion-dollar hole in California’s budget, one that is likely to force Gov. Gavin Newsom and lawmakers to make difficult decisions in the years to come.

The story published in the San Francisco Chronicle claims that the shortfall is likely to total roughly $35 billion in 2020-21 alone, the nonpartisan state legislative analyst told senators who convened a special budget hearing on the coronavirus Thursday in Sacramento. The shortfall could snowball by an additional $85 billion in the years that follow, Legislative Analyst Gabriel Petek said.

“If budget problems of this magnitude were to emerge, they would exceed the state’s reserves,” Petek said, in something of an understatement.

The surplus that the Legislature, Newsom and former Gov. Jerry Brown accumulated over the past decade totals about $21 billion, about $4 billion of which will probably be needed this year to meet the constitutional requirement of a balanced state budget.

And they don’t have much time to get it all done. They must pass a balanced budget by June 15 or go without pay, and will have only a couple of months after that to consider other bills before the legislative session is scheduled to end.

California still faces problems that existed before the pandemic, Rendon said, including the lack of affordable housing, widespread homelessness, climate change and lack of access to clean water in some parts of the state.

Assembly Bill 664, would amend LC 4663 and add LC 3212.8 to re-define “injury,” for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators who work for the Office of Emergency Services. The bill would create a conclusive presumption, that a communicative disease injury arose out of and in the course of the employment.

Senate Bill 1159, would make changes to LC 3202.86 to make disputable (rather than conclusive) presumptions pertaining to injury caused by COVID-19. The bill would apply to anyone deemed to be a “critical worker.”

Since most first responders such as firefighters and peace officers are employed by governmental entities, the costs of these two measures for the most part will be paid by taxpayers, and will be a burden on existing overburdened governmental budgets.

They must also handle bills ranging from compensation for sick essential workers to planning for a November election that’s likely to be done mostly by mail.

Non-utilization of Comp Admissible to Limit Damages in Tort Case

Michael Murdoch was employed as a millwright for Siemens Industry on a construction project at SFO. He was working on a baggage conveyor belt cutting a metal side guard. The conveyor began moving unexpectedly, pulling Murdoch into an opening, where he remained stuck until he was able to pull himself out.

In May 2012, Plaintiffs filed a lawsuit against respondent Brock Solutions for negligence and loss of consortium. The complaint alleged that Brock was the subcontractor responsible for “the design, installation, and programming of the computerized system” that controlled the baggage conveyor system Murdoch was working on when he was injured.

The case was tried in 2014. The jury determined Brock and Siemens were negligent, and their negligence was a substantial factor in plaintiffs’ injuries. The jury awarded plaintiffs $3,895,220, comprised of $2,395,220 in economic damages and $1,500,000 in non-economic damages. The jury allocated 80 percent of the fault to Murdoch, 10 percent to Brock, and 10 percent to Siemens. The court reduced the economic damages by Murdoch’s percentage of fault, and offset settlement payments and workers’ comtpensation benefits Murdoch received before trial.

Plaintiffs moved for a new trial, arguing the jury’s apportionment of fault was against the weight of the evidence. The trial court agreed and granted the motion, concluding Brock’s liability “was significant and in excess of the 10% that the jury apportioned.” Brock appealed and plaintiffs filed a cross-appeal. In Murdoch I, this court affirmed, holding that the trial court did not abuse its discretion in granting the motion for a new trial.

Following a second trial, the jury found that Brock was negligent, but that the negligence was not a substantial factor in causing Murdoch’s injury. In July 2018, the trial court entered judgment in favor of Brock. Murdoch appealed, but the judgment was affirmed in the unpublished case of Murdoch v Brock Solutions.

During the second trial, Murdoch testified that he agreed “the most important rule for anybody working on top of energized equipment is lockout, tagout.” He admitted he had failed to lockout the conveyor belt on the day of the accident at SFO because he thought a Bass Electric employee had done so.

The trial court did not err in permitting a retrial on damages. In their motion for a new trial following the 2014 verdict, plaintiffs requested a new trial rather than a trial only on liability. The August 2014 court order granting the motion did not limit the new trial to the liability issue. Neither did the March 2017 decision of this court affirming the trial court limit the issues on retrial. On April 4, 2018, the eve of the April 9 scheduled trial, plaintiffs unsuccessfully moved in limine to limit the retrial to liability only.

Plaintiffs argue the trial court abused its discretion in allowing evidence regarding Murdoch’s workers compensation benefits, which, they argue, “was offered to argue that Mr. Murdoch’s injuries were not serious based upon his failure to obtain medical care from collateral sources.”

However, plaintiffs cite to no portion of the hearing on the motions in limine where they argued that, if the trial court allowed retrial on damages, the court should exclude evidence regarding Murdoch’s workers compensation benefits due to the collateral source rule.

San Diego Psychiatrist Resolves Opioid Case for $145K

San Diego area psychiatrist Prakash Bhatia, M.D., has paid $145,000 to resolve allegations that he overprescribed opioids. Dr. Bhatia previously owned and operated Progressive Health and Wellness in El Cajon, California, practicing pain medicine.

The settlement stems from an investigation that the Drug Enforcement Administration initiated into whether Dr. Bhatia improperly prescribed opioids to his patients at Progressive Health and Wellness (PHW) in violation of the civil provisions of the Controlled Substances Act.

Pursuant to the Controlled Substances Act, health care providers may write prescriptions for opioids only for a legitimate medical purpose while acting in the usual course of their professional practice.

Based on its investigation, the United States alleged that from March 2013 to December 2017, Dr. Bhatia wrote opioid prescriptions at PHW, including for hydromorphone, morphine, methadone, oxycodone, fentanyl and oxymorphone without a legitimate medical purpose and/or outside the usual course of his professional practice, in violation of the Controlled Substances Act.

The United States alleged that Dr. Bhatia also prescribed these medications in combination with depressant medications (including benzodiazepines and muscle relaxants), which are known to increase the risk of abuse, addiction and overdose.

This matter was handled by Assistant U.S. Attorneys Dylan M. Aste and George V. Manahan of the U.S. Attorney’s Office for the Southern District of California, with the assistance of agents and investigators from the DEA.

The claims resolved by this settlement are allegations only and there has been no determination of liability.

3rd WCAB En Banc Decision Suspends 20 Day Filing Rule

Upon a unanimous vote of its members, the Appeals Board issues this decision as a whole as an en banc decision. The new decision is named “IN RE: COVID-19 STATE OF EMERGENCY EN BANC – NO. 3” and is therefore its 3rd en banc decision suspending or modifying the rules of practice and procedure to adapt to the COVID-19 pandemic.

WCAB Rule 10620 (entitled “Filing Proposed Exhibits”) states in full: “Any document that a party proposes to offer into evidence at a trial shall be filed with the Workers’ Compensation Appeals Board at least 20 days prior to the trial unless otherwise ordered by the Workers’ Compensation Appeals Board.” (Cal. Code Regs., tit. 8, former § 10393(h), now § 10620 (eff. Jan. 1, 2020), emphasis added.)

We will order suspension of the 20 day requirement pursuant to the authority to do so provided by the Rule. WCAB Rule 10670(b) provides in relevant part:

(b) The Workers’ Compensation Appeals Board may decline to receive in evidence:

… (3) Any document not filed 20 days prior to trial, unless otherwise ordered by a workers’ compensation judge or good cause is shown.

(Cal. Code Regs., tit. 8, former § 10622, now § 10670(b)(3) (eff. Jan. 1, 2020).)

In light of the state of emergency, there is good cause to permit receipt into evidence of documents not filed 20 days prior to trial.

Therefore, we will also order suspension of the 20 day requirement in WCAB Rule 10670(b)(3). A workers’ compensation administrative law judge retains the authority to decline to receive documents in evidence as otherwise permitted by WCAB Rule 10670(b) and the law.

This order will remain in effect until further notice.

FDA Raises Safety Concerns Over Ethanol Hand Sanitizers

The Trump administration has tightened restrictions on the use of ethanol in hand sanitizer, citing safety concerns and forcing some suppliers to halt sales at a time of soaring demand, according to sources and documents seen by Reuters.

The crackdown is meant to protect consumers from potentially dangerous impurities in hand sanitizer, but could worsen shortages at a time when households, hospitals and nursing homes need sanitizer to fight the coronavirus pandemic.

The restrictions have dealt a blow to ethanol producers. The industry has invested millions of dollars since last month to ramp up the output of corn-based alcohol sanitizer to offset slumping fuel demand.

Ethanol production has fallen to a record low of 537,000 barrels per day and halved from month-ago levels as gasoline demand has slumped. Fuel demand has dropped by roughly 30% worldwide due to stay-at-home orders.

The U.S. Food and Drug Administration (FDA) on April 15 issued limits on certain chemicals permitted in alcohol-based hand sanitizer, updating temporary guidance it adopted last month as the health crisis deepened and more manufacturers registered to produce hand sanitizer.

Since then, the FDA has notified several ethanol companies that their product does not meet safety standards, forcing them to halt production and cancel supply agreements, according to a source familiar with the matter. The source requested anonymity to speak candidly about the situation.

In one case, the FDA said it had found significant levels of the carcinogen acetaldehyde in ethanol supplied by a company for use in hand sanitizer, according to a recent email exchange seen by Reuters.

“FDA has reviewed your ethanol data and determined that it is not acceptable as an ingredient under the Agency’s temporary hand sanitizer policies,” it wrote.

The FDA told Reuters it decided to update the guidance after reviewing ingredient data supplied by ethanol companies and fielding multiple questions from companies seeking clarification about its temporary production policies.

The agency said in a statement it was committed to “working with manufacturers, compounders, state boards of pharmacy and the public to increase the supply of alcohol-based hand sanitizer available to Americans.”

The FDA did not immediately respond to a request for details on the number of ethanol companies it had notified for failing to meet its April 15 guidance. Its move has drawn criticism from suppliers who say it should further ease its safety standards to ensure hand sanitizer is widely available during the coronavirus outbreak.