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Posts Tagged ‘California’

New COVID-19 Notice Requirements for California Employers

Posted on: January 12th, 2021

By: Chelsea Whelan

The new year ushers in new rules for California employers receiving notice of potential COVID-19 exposure in the workplace. California Labor Code section 6409.6 became effective January 1 this year following the passage of Assembly Bill 685 and will sunset on January 1, 2023. Section 6409.6 requires employers provide written notice within one business day to employees potentially exposed to COVID-19 in the workplace. 

What Constitutes “Notice of Potential Exposure”?

Section 6509.6 defines notice of potential exposure as exposure to a “qualifying individual”. A “qualifying individual” is defined as an individual who has been diagnosed, tested positive for or died from COVID-19, or anyone subject to a COVID-19-related order to isolate by a public health official. (Cal. Lab. Code section 6509.6(d)(4).) Accordingly, section 6509.6(d)(3) defines notice of potential exposure to COVID-19 as notice either that an employee is a qualifying individual or that an employee was exposed to a qualifying individual at the workplace. 

Written Notice Requirements

In order to comply with section 6509.6, employers notified of potential exposure to COVID-19 in the workplace must provide written notice to all employees, as well as the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual within the infectious period. The notice can be sent via email, text or personal service if it can reasonably be anticipated to be received by the employee within one business day of sending. Also, the notice must be in English or the language understood by the majority of employees. The following must be included in a written notice:

  • Information regarding COVID-19-related benefits an employee might be entitled to under federal, state or local law, including, but not limited to workers’ compensation and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.
  • Notice of antidiscrimination and antiretaliation protections for employees disclosing a positive COVID-19 test or diagnosis.
  • Notice of the disinfection and safety the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

As described in the notice requirements above, section 6409.6 contains antiretaliation and antidiscrimination protections for workers disclosing a positive COVID-19 test, diagnosis or order to quarantine or isolate and allows for the Department of Labor Standards Enforcement to issue citations and penalties for violation of the statute.

Section 6409.6 also requires employers to report a COVID-19 outbreak to the State Department of Public Health within 48 hours. What constitutes an outbreak is defined by the State Department of Public Health.

If you have questions or would like more information, please contact Chelsea Whelan at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Are Adult Entertainment Clubs Going To Save California’s Restaurants?

Posted on: December 22nd, 2020

By: John Moot

In what could be the beginning of a reopening for restaurants hard hit by California’s new stay at home orders, two San Diego adult entertainment clubs have come to the rescue. A San Diego Superior Court Judge on December 16th granted a preliminary injunction enjoining any governmental entity or law enforcement officer from enforcing cease and desist orders including the State’s Regional Stay at Home Order against two well-known adult entertainment venues in San Diego who also serve food. Using the United States Supreme Court’s recent decision allowing churches in New York to open for indoor services as a jumping off point, the Court applied the First Amendment rights of adult entertainment establishments to find the State’s rational to close their business that included selling food to be woefully deficient. In a careful analysis of the facts including the County’s own witnesses, the Court found there was no evidence the adult entertainment clubs or their restaurant exposed patrons, its staff or employees to COVID-19. The Court found no evidence that “businesses with restaurant services such as Plaintiffs’ establishment who have implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less San Diego County).

In what could be read as rebuke to the Governor’s overly broad orders lacking in factual support, the Court after noting “essential businesses” that were allowed to stay open, quoted Supreme Court Justice Gorsuch’s concurring opinion in the Roman Catholic Diocese of Brooklyn stating, “who knew public health would so perfectly align with secular convenience.” In an ironic twist, a conservative Supreme Court majority has put adult entertainment clubs on par with churches as one of the few places Californians may be able to seek respite from the pandemic.

Restaurant owners’ glee however may have hit a roadblock. After the trial court clarified its ruling to apply to all restaurants not just ones in the adult entertainment clubs, the Appellate Court stepped in and stayed the ruling and will not consider the matter. Under the First Amendment, governmental action that infringes on First Amendment rights are subject to higher judicial security. Will the Appellate Court limit the lower court ruling to “Plaintiffs providing live adult entertainment” and businesses with “with restaurant service such as Plaintiffs?” Stay tuned. Either way a California Court has let the cat out of the bag and has questioned COVID orders where the punishment does not necessarily fit the crime.

If you have questions or would like more information, please contact John Moot at [email protected].

California Assembly Bill 1552 – Near Miss or Cautionary Tale for Insurers?

Posted on: November 11th, 2020

By: Ryan Greenspan

As fear of the novel coronavirus and COVID-19 continues to grip the world, an array of government rules, restrictions, and guidelines have been imposed. Some businesses have been operating at a limited capacity and some have closed outright. In March of this year, California’s governor issued one of the strictest orders in the country, defining what is an “essential” and a “non-essential” business and then ordering all so-called “non-essential” businesses to shut down indefinitely. The governor has since permitted certain businesses to re-open to varying degrees.

Many businesses are now seeking to recoup their losses by making claims under insurance policies that provide for business interruption coverage.

Courts around the country have already weighed in on the applicability of business interruption insurance, but this past summer, California Assembly members James C. Ramos and Monique Limon introduced Assembly Bill 1552 (“AB 1552”). Typically, business interruption insurance is available when the insured can prove direct, physical loss or damage to covered property. AB 1552 was different from other, similar bills introduced in such states as Massachusetts and New York because it would have created a rebuttable presumption that the novel coronavirus was present at a business’s property and resulted indirect, physical damage to or loss of property. Bills introduced in other states would have simply mandated coverage, which would make those bills subject to constitutional challenges from insurers. AB 1552’s rebuttable presumption was an attempt to withstand a constitutional challenge.

On June 26, 2020, AB 1552 passed in the California State Assembly by a 77-0 margin. However, it was unable to garner further support and was pulled from consideration before receiving a vote in the State Senate. With the California Legislature currently in recess until January 2021, there is no chance that such a bill, in any form, will be passed in 2020. 

While insurers operating in California may have dodged a proverbial landmine, the governor’s forced closures continue, and many believe that when the California state legislature reconvenes in 2021, a form of AB 1552 revised to attract Senate support may be introduced. Its significant support in the State Assembly is likely to keep the possibility alive for 2021.

If you have any questions about AB 1552 or business interruption insurance practices in California, please contact Ryan Greenspan at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Prop 51: CA Supreme Court Creates Noteworthy Exception to Reduction or Apportionment of Non-Economic Damages

Posted on: November 10th, 2020

By: Zachary Price

Under Proposition 51, although all defendants in California are liable to a plaintiff for 100% of plaintiff’s economic damages (including such things as medical expenses and lost earnings), defendants are only liable for noneconomic damages (such as physical pain, mental suffering, and emotional distress) in proportion to their fault. In other words, while defendants are jointly liable for economic damages, they are severally liable for noneconomic damages. 

However, in B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, the California Supreme Court has created a noteworthy exception, holding that intentional tort defendants are categorically exempt from the several liability protections of Proposition 51. As a result, regardless of a defendant’s proportion of fault, if that defendant is found liable for an intentional tort, they are responsible for 100% of plaintiff’s noneconomic damages.

In B.B. v. County of Los Angeles, a jury found that a Los Angeles County Sheriff’s Department deputy had committed battery by using unreasonable force to subdue a man when the deputy pressed his knees into the man’s back and neck. The man lost consciousness and died 10 days later. The decedent’s family was awarded $8 million in noneconomic damages. The jury found that the deputy was only 20% responsible for the decedent’s death, with 40% responsibility attributable to other deputies and the remainder to the decedent. However, because the deputy’s liability was based on an intentional tort, the trial court entered judgment against the deputy for 100% of the noneconomic damages.          

The appellate court disagreed with the trial court and reduced the judgment against the deputy in proportion to the jury’s allocation of responsibility.  The matter then proceeded to the California Supreme Court. Resolving a split of authority in the appellate courts, the California Supreme Court held that Proposition 51 does not apply to intentional tortfeasors, making the deputy in question liable for the entirety of the $8 million noneconomic damages award. Specifically, the California Supreme Court held that Civil Code section 1431.2(a), which codified Proposition 51, does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent the negligence of others contributed to the injuries in question. “Others” include plaintiffs, codefendants, injured parties, and nonparties.

The California Supreme Court based its decision on the plain language of section 1431.2, which expressly incorporates “principles of comparative fault.” After a thorough discussion of the history of comparative fault in California, the Supreme Court noted that principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others. Because section 1431.2 incorporates those principles, the statute did not allow the deputy to reduce his liability for noneconomic damages based on the acts of the decedent or other deputies.     

The California Supreme Court’s decision in B.B. v. County of Los Angeles will have profound ramifications. Armed with this exception to Proposition 51, expect to see an uptick in cases advancing intentional tort theories by the plaintiffs’ bar, particularly in multi-defendant litigation or cases with defendants known to have deep pockets. To avoid potential application of this exception, defense counsel will need to aggressively challenge intentional torts prior to trial through discovery and motion practice.

If you have questions or would like more information, please contact Zachary Price at [email protected]

California Lawyers Who Ignore Lienholders Do So At Their (Disciplinary) Peril

Posted on: October 20th, 2020

By: Greg Fayard

In personal injury law, California lawyers regularly must deal with medical liens. For example, lienholders have certain rights to proceeds from a settled case and expect to be paid. In the past, if a California lawyer ignored or mishandled a medical lien on personal injury proceeds, the lienholder could pursue the attorney for the amount owed.

But now, under Rule 1.15 of the Rules of Professional Conduct, California lawyers can now be disciplined for ignoring or mishandling lienholder rights. That is, money from a California lawyer’s client trust account can only be released to the client or a lienholder if there is NO dispute as to who gets what.

Until the dispute over the personal injury funds is resolved, California lawyers have to keep the money in their client trust account. If a lawyer does not do this, and disburses funds that were supposed to go to a lienholder, the lawyer can now be disciplined by the State Bar. This means a California lawyer who is not careful with handling medical liens now is subject to both civil and disciplinary exposure.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.