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Tag: 2020 News

WCAB En Bank Decision Suspends Rules

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Upon a unanimous vote of its members, the Appeals Board just issued this en banc decision.

On March 4, 2020, the State of California’s Governor, Gavin Newsom, declared a state of emergency in response to the spread of the novel coronavirus (now known as COVID-19).3 As of the date of this decision, several counties in the State of California, within which district offices of the WCAB are located, have issued a shelter-in-place order in response to COVID-19.

In light of this state of emergency and pursuant to its authority per WCAB Rule 10370, the Appeals Board is temporarily suspending specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. (Cal. Code Regs., tit. 8, § 10370.) This suspension is applicable to all district offices in the State and applies to the following Rules:

— 1)Cal. Code Regs., tit. 8, former §§ 10562, 10563, 10563.1, now §§ 10755, 10756, 10888 (eff. Jan. 1, 2020): Dismissal of an application or lien claim for failure to appear is suspended.

— 2) Cal. Code Regs., tit. 8, former §§ 10860, 10865, 10866, now §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (eff. Jan. 1, 2020): Workers’ compensation judges (WCJs) and arbitrators shall have an unlimited extension of time within which to issue reports in response to petitions for reconsideration or removal.

— 3) Cal. Code Regs., tit. 8, former § 10408, now § 10500(b)(6) (eff. Jan. 1, 2020): Suspension of the requirement in the Compromise and Release agreements (DWC-CA forms 10214(c)- (e)) for signatures from two witnesses. Signatures on the forms from all parties may be electronic.

— 4) Cal. Code Regs., tit. 8, former § 10500, now § 10628 (eff. Jan. 1, 2020): Suspension of the requirement for service by the WCAB by mail. Service by the WCAB may be made electronically with or without parties’ consent.

On March 16, 2020, the Division of Workers’ Compensation (DWC) issued Newsline Release No. 2020-18 providing in pertinent part that the DWC’s district offices are currently closed for filing from March 17 through April 3.6 (See Code Civ. Proc., § 12(a); Cal. Code Regs., tit. 8, former §§ 10507, 10508, now §§ 10600, 10605 (eff. Jan. 1, 2020); Pa’u v. Department of Forestry, et al. (2019) (ADJ9159725, ADJ7757931, ADJ9640668). In accordance with this, all filing deadlines are extended to the next day when the district offices reopen for filing.

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EEOC – Employers May Now Take Employee Temperatures

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The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees’ temperatures to try and ward off the spread of the coronavirus in guidance updated March 18.

“Generally, measuring an employee’s body temperature is a medical examination,” the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.

Because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever,” the agency stated. And some people with a fever do not have COVID-19.

Jeff Nowak, an attorney with Littler in Chicago, added that if employers want to take workers’ temperatures, they should pay employees sent home for high temperatures to limit any legal risk, if they can afford to do so.

Employers also should consider what they’d do if employees refuse to have their temperatures taken. Would employers send these workers home without pay?

The temperature reading should be kept confidential and the person administering the temperature check should be trained on the procedure, Nowak said. He expressed skepticism that a lawsuit would result from taking workers’ temperatures.

Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md., cautioned employers against using oral thermometers, which are more invasive than infrared digital thermometers.

Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said there may be an obligation to pay employees for time spent waiting to have their temperatures checked.

When an employee returns to work, under the ADA employers can require a doctor’s note certifying his or her fitness for duty, the EEOC said.

The EEOC guidance also provided that:

— An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical examination.
— An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.
— An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.
— An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, the individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer, the EEOC explained.

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At Least two States to Provide Corona Virus Comp Benefits

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The Insurance Journal reports that workers’ compensation insurers in at least two states have decided that they will guarantee workers’ compensation benefits for health care workers and first responders.

Kentucky Employers Mutual Insurance Co. announced Friday that effective immediately it will pay wage-replacement benefits for any first responder or employee in the medical field who is quarantined because of direct exposure to a person diagnosed with COVID-19.

Ryan Worthern, communications director for KEMI, said the insurer’s staff decided to adopt the policy, but informed its board of directors and Gov. Andy Beshear of the decision.

KEMI’s announcement follows a decision March 5 by the Washington state Department of Labor and Industries to pay wage-loss and medical treatment expenses for any health care worker or first responder who is quarantined because of coronavirus exposure.

Washington operates a monopoly workers’ comp system, so that policy impacts every employee in the state who is covered by the state system.

L&I spokesman Tim Church said the department has already received several workers’ compensation claims due to coronavirus exposure, but he did not know if they were filed by medical or health care workers. Church said a quarantine normally would not be covered by workers’ comp unless the worker was made ill by workplace exposure.

Church said coronavirus claims by Washington workers outside of health care or emergency services will be decided on a case-by-case basis according to the state workers’ compensation statutes.

The National Council on Compensation Insurance, a rate advisory organization for most U.S. states, said last week that it remains to be seen whether other states will follow Washington state’s lead. NCCI said that many state workers’ comp statutes exclude “ordinary diseases of life” such as the common cold or flu.

However, NCCI said at least 10 states have issued mandates for coverage of coronavirus by health insurers. The directives vary, but include coverage for testing and visits to emergency rooms or urgent care facilities without deductibles or copays, NCCI said. “These measures, if expanded to more states, could have the impact of limiting claim activity in the WC market in those cases where only testing or quarantine are necessary,” NCCI said.

Two insurance carriers gave notice of their stand toward the coming workers’ comp claims in notices last week: Texas Mutual Insurance Co. and SAIF, Oregon’s state-chartered workers’ comp insurer, both issued bulletins that said they will decide whether coronavirus exposure is compensable on a case-by-case basis.

Texas Mutual added this caveat: “However, the more widespread COVID-19 becomes, the more difficult it may be for the employee to show that it is work related rather than an ordinary disease of life to which the general public is exposed.”

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DWC Closes Headquarters and Three WCAB Offices

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The Division of Workers’ Compensation (DWC) will temporarily close its San Jose, Oakland and San Francisco district offices to protect the health of the public and our staff and to comply with shelter-in-place orders.

The Division’s headquarters office, which includes the Medical Unit, Return-to-Work Supplement Program, Uninsured Employers Benefit Trust Fund and Legal Unit, will also close temporarily.

Staff will work remotely and are available by phone at 1-800-736-7401.

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.

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Floyd Skeren Announces Free HR Webinar on COVID–19

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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.

She has now scheduled a free, informative live-webinar covering important topics for employers, HR and Risk Managers on employment law aspects triggered by the COVID-19 virus. Her topics include:

— What workplace laws may be triggered by COVID-19?
— What leave may an employee entitled to who is ill, or who needs to care for a family member?
— What leave may be required for parents with children home from school?
— Can employers require a diagnosis from an employee if COVID-19 is suspected?
— Can employers send employees who appear sick home from work?
— If the workforce shuts down, must employees be paid, and what about benefits?
— If the proposed federal paid sick leave law passes, what is required?
— What should employers tell workers who are 65 and older?
— Guidance on responding to employees who do not want to report to work.
— Guidance on responding to employees who are concerned that a co-worker has COVID-19.
— If an employee is out sick, can a release to return to work be required?

This webinar will take place on Friday, March 27, 2020 from 10:00 am until 12:00. If you would like to attend, please use this registration page.

Ms. O’Brien is the editor of Floyd Skeren Manukian Langevin’s employment related websites: www.employmentlawweekly.com, www.worklawreport.com, and www.floydskerenhrtraining.com.

Ms. O’Brien represents employers in employment related disputes before the Department of Fair Employment and Housing (DFEH), the Equal Employment Opportunity Commission (EEOC), and the California Labor Commissioner, including claims related to discrimination, harassment, retaliation, and wage and hour violations.

Ms. O’Brien also provides HR consultation to employers, human resource administrators, and risk managers on a myriad of HR topics including compliance with federal, state and local employment related laws; EEO compliance; AB 1825 Sexual Harassment training; managing leaves of absence pursuant to FMLA/CFRA, PDL and paid sick time; disability, accommodation and the interactive process; and performance, discipline and termination.

Ms. O’Brien also conducts management and employee training sessions throughout California on numerous workplace topics.

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San Francisco Acupuncturist Sentenced in Fraud Case

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46 year old Haichao Huang, of San Francisco, was sentenced to 12 months in prison for committing health care fraud and making false statements relating to health care matters. He pleaded guilty on December 6, 2019, to health care fraud and making false statement relating to health care matters.

Huang was a health care provider who offered acupuncture, physical therapy, massage, and other services to patients in and around San Francisco, Calif.

Huang knowingly and willfully executed a scheme to defraud healthcare benefit programs. Huang submitted and caused to be submitted false claims for reimbursement from health care benefit programs that he knew were not properly payable, including from programs provided through federal government and labor union healthcare plans. Huang included false and inaccurate billing codes that artificially inflated both the type of service the patient received and the time he spent with the patient.

The plea agreement gives examples. Huang submitted requests for reimbursement for acupuncture treatment when, in fact, the patient had received much shorter periods of treatment, no acupuncture treatment, or no care of any kind at all. Huang also submitted claims for services rendered on days when patients had not been seen by him at all – including days when Huang was not in California.

Further, after a patient reached the limit of acupuncture sessions allowed by the relevant insurance program or plan, Huang falsely and inaccurately billed for other types of treatments and services that were not provided, or billed under a patient’s family member’s health plan who never received treatment through his practice, in order to continue receiving improper reimbursements.

In addition to the prison term, Judge Illston ordered Huang to serve two years of supervised release to begin after his prison term has concluded and to pay restitution of $807,785.38 and a $10,000 fine.

Huang had been released on a $100,000 bond, which remains in place until he surrenders to begin serving his prison term on or before May 29, 2020.

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WCAB – Modified Hearing Calendar & Filing Update

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The Division of Workers’ Compensation, and the Workers’ Compensation Appeals Board just announced its committed to protecting the health and safety of our community and staff while performing its legislative and constitutional duties.

We are in communication with the California Department of Public Health (CDPH) and the Office of Emergency Services to ensure that we have the most up-to-date information available during this unprecedented COVID-19 crisis.

We 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.

Scheduled Hearings

March 17 through March 20: DWC will only hear expedited hearings at the district offices. DWC will continue all other hearings and send parties notice of new hearing dates within the next five business days.

March 23 through April 3: 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.

Filings

March 17 through April 3: DWC’s district offices will be closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 6 (see California Code of Civil Procedure Section 12(a); 8 California Code of Regulations Sections 10600 and 10605; and WCAB Significant Panel Decision Pa’u v. Department of Forestry, et al.: (2019) (ADJ 9159725, ADJ 7757931, ADJ 9640668).

DWC will not accept walk-through documents or walk-in filings until the district offices reopen for filing purposes.

Workers’ Compensation Judges will focus on reviewing settlement documents and ruling on petitions submitted by the parties during the closure. Parties may utilize the Electronic Adjudication Management System 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.

These changes are based on the best information currently available and are subject to change without notice as circumstances change. Although we will endeavor to provide updates regarding hearings, filing or office closures, parties, attorneys and hearing representatives should also check the DWC and WCAB websites for updates.

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Policy Approaches for Economic Fallout from COVID-19

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Policymakers and government leaders have taken a range of approaches to deal with the economic fallout from the coronavirus.

The U.S. Federal Reserve slashed rates back to near zero, restarted bond buying and launched other measures from its crisis-era toolkit, along with other central banks, to put the floor under a rapidly disintegrating global economy assailed by efforts to contain the coronavirus pandemic.

The Fed also encouraged banks to use the trillions of dollars in equity and liquid assets built up as capital buffers since the financial crisis to lend to business and households whose balance sheets and lives have been upended by the virus.

The central banks of the United States, the euro zone, Canada, Britain, Japan and Switzerland agreed on Sunday to offer three-month credit in U.S. dollars on a regular basis and at a rate cheaper than usual.

The U.S. Treasury Department will defer tax payments without interest or penalties for certain individuals and businesses negatively impacted, aiming to provide more than $200 billion of additional liquidity to the economy.

The Small Business Administration will also provide capital and liquidity to firms affected by the coronavirus.

Earlier, Trump signed a $8.3 billion emergency spending bill to combat the spread of the virus and develop vaccines for the highly contagious disease.

European Union leaders have so far failed to agree to radical measures to tackle the crisis. European Commission chief Ursula von der Leyen said on Thursday Brussels was working on responses including a “package to prop up the EU economy”.

Euro zone finance ministers, known as the Eurogroup, meet on Monday and signals before their meeting suggest that a large scale, coordinate fiscal boost is likely coming.

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Updated FAQs For Employers On The COVID-19 Coronavirus

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The Floyd Skeren employment law partner – Fisher Phillips – has assembled a cross-disciplinary taskforce of attorneys across the country to address the many employment-related issues facing employers in the wake of the COVID-19 coronavirus – especially now that the World Health Organization has declared the outbreak as a pandemic.

The COVID-19 Taskforce has created a Frequently Asked Questions (FAQ) document, which has been continually updated since first published on March 3 and will continue to be updated as events warrant. It has been completely updated as of March 12 to address the many additional workplace law rights and responsibilities given the pandemic designation.

Fisher Phillips will continue to monitor this rapidly developing situation and provide updates as appropriate, including updating this FAQ on as-needed basis. You can contact any member of the Taskforce with specific questions, and a full listing of the Taskforce members and their practice areas is at the end of this publication.

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SB 1039 Claims “Binary” Classification of Workers is “Outdated”

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In the war over legislating the gig economy, a bill introduced by California Senator Cathleen Galgiani last February in the Legislature – SB 1039 – known as “The Independent Worker Rights Act of 2020,” could pave the way for creating a third class of worker.

On January 1, 2020, Assembly Bill 5 went into effect, codifying the decision of the California Supreme Court in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applying the “ABC” test to classify workers as independent contractors or employees.

In enacting AB 5, the Legislature intended to rectify harm to misclassified workers who lose workplace benefits and protections when misclassified, including the guarantee of minimum wage, workers’ compensation, disability insurance and protection from discrimination.

Senator Galgiani wrote that the enactment of AB 5 has led to a reclassification of independent workers as employees, resulting in the loss of opportunities for these workers due to the cessation of businesses operating in California. This has resulted in fewer opportunities for independent workers desiring flexible working conditions in the current economy.

In fact, according to the Federal Reserve, there are currently more than 57,000,000 workers in the gig economy, with 85 percent of those workers pursuing work in the gig economy to supplement income or as a hobby or “just for fun,” and only 16 percent pursuing work in the gig economy as their primary source of income.

She went on to write that as a result, it has become increasingly obvious that a binary system for classifying workers as either independent contractors or employees is outdated and inapposite of the current reality of the labor market and work opportunities presented in the gig economy and the desire of workers seeking flexible working conditions.

Currently, the Governor’s Future of Work Commission is examining the impact of technology on work, workers, employers, jobs, and society to develop a new social compact for California workers.

With executive action towards modernizing worker safety net protections, it is the intent of the proposed law to enhance the efficiency of the labor market by extending many of the legal benefits and protections found in employment relationships to independent workers.

The the purpose of the proposed law is to develop a modern policy framework that facilitates independent work for those who voluntarily choose it by creating a third classification of workers in order to offer basic rights and protections they deserve under the law relative to the work opportunities and circumstances of the work, including a minimum wage, occupational accident coverage if they are injured on the job, protection from discrimination, and paid medical leave where required by law.

A third class of worker could mean big changes for workers’ compensation. This bill is definitely one to watch.

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