Tag: 2020 News

The WCAB just issued its second En Banc decision modifying the rules that apply to litigation management.

WCAB Rule 10940(b) states in relevant part: “No documents sent directly to the Appeals Board by fax or e-mail will be accepted for filing, unless otherwise ordered by the Appeals Board.” (Cal. Code Regs., tit. 8, former § 10845(c), now § 10940(b) (eff. Jan. 1, 2020), emphasis added.) To the extent that WCAB Rule 10940(b) prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board. Documents that may be emailed include, but are not limited to, correspondence relating to a petition for reconsideration that has been granted for further study by the Appeals Board.

Documents sent by email should include the information required for pleadings by WCAB Rule 10520 and an email address for the sending party. (Cal. Code Regs., tit. 8, former § 10498, now § 10520 (eff. Jan. 1, 2020).) Documents sent by email should otherwise comply with the WCAB’s Rules. Documents may be sent by email to WCABEmergencyBox@dir.ca.gov and will be responded to per the Appeals Board’s normal operating procedures.

Petitions for reconsideration, removal, or disqualification and answers should still be filed in EAMS or with the district office having venue pursuant to WCAB Rule 10940(a). (See Cal. Code Regs., tit. 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)

Administrative Director (AD) Rule 10205.7(c) provides that “No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers’ compensation administrative law judge or the appeals board“. (Cal. Code Regs., tit. 8, § 10205.7(c), emphasis added.)

Although ordinarily prohibited by the AD’s Rules, the Appeals Board hereby orders that specific documents may be by sent by email directly to the district offices. The district offices may accept by email solely documents subject to a statutory time limit where the filing party could not otherwise e-file, JET file or file the document by mail. Information regarding email addresses for filing documents by email with the district offices is available on the DWC’s webpage: https://www.dir.ca.gov/dwc/dir2.htm.

All parties are reminded that ex parte communications are prohibited per WCAB Rule 10410 and any document sent to the district offices or the Appeals Board by email or any other method must also be served on all parties to the matter. (Cal. Code Regs., tit. 8, former § 10324, now § 10410 (eff. Jan. 1, 2020).)

These orders will remain in effect until further notice.

The Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) has announced an update to the modified calendar and filing procedures announced on March 16, 2020. This update to the procedures continues to prioritize the health and safety of staff and the public to help prevent the spread of COVID-19.

The updated hearing and filing procedures are detailed below:

Hearing Procedures April 6 through April 10

— DWC will continue to 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.
— Parties are required to adhere to social distancing guidelines when visiting DWC district offices.

Filing Procedures April 6 through April 10

— District offices will remain closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 13.
— DWC will not accept walk-through documents, walk-in filings, or in-person requests.
— Parties may utilize the Electronic Adjudication Management System (EAMS) to file documents online. Parties may also mail settlement documents or petitions to the district office where the case is filed.
— Refer to the district office page for e-mail and other contact information.
— Additional information will be posted on the DWC website to assist parties with filing settlement documents in EAMS. Hearing Procedures Effective April 13
— DWC conferences including mandatory settlement conferences, priority conferences, status conferences and all expedited hearings will be heard telephonically.
— All DWC judges in California will hear cases by an individually assigned conference line. These conference lines are available toll-free. A list of all conference line numbers will be posted on DWC’s website prior to the effective date.
— Parties should call the conference line for the judge in front of whom the case is set, at the designated hearing time listed on the hearing notice. When prompted, parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.
— All trials and lien conferences will be continued until further notice. District offices will hold no in-person hearings.

Filing Procedures Effective April 13

— DWC will reopen for filing purposes.
— DWC will only accept filing by e-filing via EAMS, JET file or by mail.
— DWC will not accept walk-in filings, walk-through documents or in-person requests at this time. Injured workers who are unable to file
utilizing these options or need assistance may contact DWC’s call center at 909-383-4522.

Effective Immediately

— Until otherwise notified, DWC will accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.

The WCAB Commissioners’ office is closed to the public for in-person inquiries and requests until further notice.

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.

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.

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.