There’s no sugarcoating it – 2020 was a bear of a year. Collectively as a society, everyone still in some possession of their faculties and sanity is understandably hoping that in 2021 we can finally come up for air after what feels like a year under a wet blanket. Unfortunately, viruses and the residual effects of major societal upheaval rarely align neatly with our calendars. While vaccines have already shipped and the first healthcare workers have undergone vaccination, COVID-19 has not cooperated enough to allow us a big mask-free New Year’s Eve party with all of our friends and loved ones. We do not get to wake up and declare it all a dream as in the well-worn movie trope. There won’t be a tidy bow on the year, or a storybook ending, and much of the sacrifice and work we endured and performed in 2020 will continue into 2021, and possibly well into 2021.
That said, there is certainly much we can reflect on as 2020 ends with some hope and some joy. As a planet, we came together and developed vaccines that passed the FDA’s rigorous regulatory guidelines in under a year. We harnessed revolutionary mRNA technology that had never been used outside of clinical trials and got a solid grip on a moving target. For the greater good, and at great cost, we as a society sacrificed long cherished traditions and holiday gatherings and found alternate ways to stay connected and to meet our professional and social obligations. It wasn’t always pretty, the decisions made were contentious, and we’re going to be arguing over this period of time and dealing with the effects of it for years to come, but we made it through the year. While the need to keep vigilant is apparent, there is, for the first time in a while, a light at the end of the tunnel. Our country and state will survive this and we can at least take a moment of comfort in that as 2020 winds down before we task ourselves with the rebuilding and reconfiguring 2021 is sure to entail. Happy New Year from Mullen and Filippi, and here’s to hoping that by this time in 2021 we’re singing and dancing and breathing in a different air.
UPDATES FROM THE DWC
The Division of Workers’ Compensation (DWC) has advised of delayed processing times while regional stay-at-home orders are again implemented in response to increasing COVID infection rates, which have caused the closure of many state offices throughout California. While the DWC has maintained limited staff in its 24 district offices and has not been conducting in-person hearings for some time, it is anticipated that the current stay-at-home orders will further limit staff and extend processing times for documents mailed to the district offices. The DWC continues to encourage parties to e-file or JET file documents or to utilize email in the manner previously set forth by the DWC in its prior updates on 4/23/2020. Various helpful links are provided in the full update, which can be found here: https://www.dir.ca.gov/DIRNews/2020/2020-101.html
CAL/OSHA APPROVES EMERGENCY COVID-19 RULES
Cal/OSHA adopted emergency regulations, adopted and effective as of 11/30/2020 that require employers to follow detailed safety and reporting guidelines in order to reduce the incidence of COVID in the workplace – upon threat of hefty fines. Specifically, 8 CCR 3205 through 8 CCR 3205.4 now provide specific definitions as to what constitutes employee exposure to COVID and what preventative steps an employer must take to minimize COVID transmission. Exposure is defined very broadly as being within 6 feet of someone who had a positive COVID test for a cumulative 15 minutes in any 24-hour period.
The regulations require an employer to establish, implement, and maintain an effective written COVID-19 prevention program that sets up a system for reporting COVID-19 symptoms and exposures, describes procedures for dealing with exposures, and provides information as to employee access to testing. Employers are also required to develop and implement a process for screening employees and responding to employees with COVID-19 symptoms. Employers are required to identify all places and times that people congregate at work in evaluating whether a COVID-19 risk is even present (including restrooms, cafeterias, and the like). The employer is also required to give notice to all employees and independent contractors or other employers at the workplace who may have had a COVID-19 exposure, without revealing any personal information as to the COVID-19 case. The tension between employee privacy and reporting obligations is clear throughout these statutes and will be difficult for many employers to navigate. The regulations also create the obligation to provide testing to employees at no cost during working hours if there has been a potential COVID-19 exposure. The regulations require that any COVID-19 hazards be investigated and corrected and require that training and instruction be provided to reduce the risk of transmission.
There are specific additional rules in the event that a minor outbreak of three or more COVID-19 cases occur in an exposed workplace in a 14-day period. In that event, all employees at the exposed workplace must be provided testing at no cost during working hours. The local health department must be contacted immediately but no longer than 48 hours after the employer knows (or would have known with diligent inquiry) of three or more COVID-19 cases for guidance on preventing further spread. In the event of a major outbreak, defined as 20 or more COVID-19 cases in an exposed workplace within a 30-day period, the employer will be required to provide testing twice a week to all employees present at the exposed workplace at no cost. The rules applicable to minor and major outbreaks must be observed by employers until such time that no new cases are detected in the exposed workplace for a 14-day period. The new regulations also provide specific rules employers must follow as to COVID-19 prevention in employer provided housing and transportation. The intricacies of all of the regulations taken together will surely fill the span of several seminars across the industry in the near future, so employers are strongly encouraged to seek out further information.
The full regulations can be found here: https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf
NEW CASE BRIEFS AVAILABLE
This month’s case brief is especially timely in light of SB 1159 and the COVID presumptions it introduced into the workers’ compensation system. Written by the crew from our Fresno office, Managing Associate Attorney Brock Roverud, Associate Attorney Claire Meredith, Associate Attorney Ashly Mohammadi, and Associate Attorney David Bishop, this very informative article discusses the evidentiary concept of presumptions generally, how they can be rebutted with the use of various forms of evidence, and specifically discusses the COVID presumptions and the sort of evidence that could potentially be used to rebut the presumptions created by SB 1159. The article can be found here: https://www.mulfil.com/get-our-rebuttal-in-order/?single_header=briefs&get_cat=case-brief
This Bulletin was written by Jim Cotter, Associate Partner in our Walnut Creek office.