Blog : CERG

New California Laws Related to Workers’ Compensation and Workplace Notices Expand COVID-19 Relief for Workers

New California Laws Related to Workers’ Compensation and Workplace Notices Expand COVID-19 Relief for Workers

On September 17, California Governor Gavin Newsom signed into law two worker protection bills, AB 685 and SB 1159.  AB 685 creates new requirements for employers to notify local and state public health officials of COVID-19 cases in the workplace.  SB 1159 expands access to workers’ compensation to certain first responders, health care workers, and employees who test positive for coronavirus (COVID-19) due to an outbreak at work. 

AB 685 provides that if an employer receives notice that an individual who tested positive for COVID-19 or is subjected to an isolation order was in the workplace while considered potentially infectious, the employer must provide notice to all workers within one business day of potential exposure to COVID-19.  The notice must contain information about COVID-19 related benefits the employees are entitled to and include the employer’s disinfection and safety plan.  Employers must also notify local public health officials within 48 hours of “outbreaks” in the workplace, as defined by the State Department of Public Health.  AB 685 takes effect in January 2021.  There are exceptions to these reporting requirements for certain employees, including, but not limited to, some health care workers who work directly with COVID-19 patients. 

AB 685 also gives the California Division of Occupational Safety and Health authority to shut down businesses it believes are exposing workers to the risk of infection to the point that there is an imminent hazard to employees.

 SB 1159 creates a presumption that a covered worker’s illness or death from COVID-19 is work-related and entitles them to workers’ compensation.  Employers have the burden of rebutting this presumption by pointing to measures they have taken to reduce the potential transmission of COVID-19.  For workers in health care facilities who do not provide direct patient care (and custodial employees of health care facilities), there is no presumption if the employer can show that the employee did not come into contact with a patient who tested positive in the last 14 days. 

In addition to first responders and health care workers, the law also applies to workers who test positive for COVID-19 during an outbreak at their workplace, as defined by the bill.  SB 1159 took effect immediately upon signing. 

The rebuttable presumption under the law remains in effect until January 2023.  Governor Newsom said in an announcement that the legislation “will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”

California employers must prepare to respond to any indication that an employee has contracted COVID-19 in the workplace.  For more information about COVID-19 employer obligations, you may contact the Minami Tamaki Coronavirus (COVID-19) Task Force online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal advice.  Information in this article may not constitute the most complete or up-to-date legal or other information.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

New Article in Plaintiff Magazine by Lisa Mak, Claire Choo

New Article in Plaintiff Magazine by Lisa Mak, Claire Choo

Minami Tamaki LLP attorneys Lisa P. Mak and Claire Y. Choo authored an article, “The Right Fit,” sharing advice on mediator selection for plaintiffs’ attorneys in the August 2020 issue of Plaintiff Magazine.

From the article introduction: “With the high costs and risks of litigation, mediation can be a good opportunity to resolve legal disputes at various stages of a case. While preparation, process, and strategy are critical for mediations, another important factor is which mediator you choose for your case. Carefully choosing a mediator who is a good fit can increase your chances of a successful mediation.”

Plaintiff Magazine is a widely read legal industry publication reaching more than 5,000 trial lawyers in Northern and Central California.

Read the article by Lisa and Claire here.

NFL Concussion Class Members Allege Racial Bias in Settlement Administration

NFL Concussion Class Members Allege Racial Bias in Settlement Administration

Minami Tamaki LLP is representing former National Football League (“NFL”) players regarding the class action settlement in the matter In Re: National Football League Players’ Concussion Injury Litigation, MDL No. 2323.  The settlement resolved allegations that the NFL was responsible for brain injuries and long-term neurological problems suffered by former professional football players. Since approval of the settlement, players have filed claims through the settlement program, which has a duration of 65 years.  

On August 25, 2020, The New York Times reported that retired NFL players Najeh Davenport and Kevin Henry have filed actions accusing the NFL of discriminating against Black players who filed dementia-related claims through the settlement program. 

Davenport and Henry allege that the NFL has been paying claims under the settlement using a formula that “explicitly and deliberately discriminates on the basis of race.”  The actions allege that Black players are “automatically assumed (through a statistical manipulation called ‘race norming’) to have started with worse cognitive functioning than White former players” when their claims are evaluated for a qualifying diagnosis of neurocognitive impairment. 

The two players allege that under this formula, if a Black former player and a White former player receive the same scores on costs of cognitive functioning, the Black player is presumed to have suffered less impairment.  The Black player is therefore less likely to qualify for compensation under the NFL concussion settlement. 

The NFL has denied Davenport and Henry’s allegations.  The action is venued in the U.S. District Court for the Eastern District of Pennsylvania.

While Minami Tamaki LLP is not affiliated with the Davenport and Henry filings, we believe as a general matter that any parties experiencing discrimination of any kind should fully explore their legal options.

Individuals seeking information on the settlement in the In Re: National Football League Players’ Concussion Injury Litigation matter can set up a free consultation with Minami Tamaki by contacting us at (415) 788-9000 or through our online form.

Minami Tamaki Attorneys Named to 2020 Super Lawyers

Minami Tamaki Attorneys Named to 2020 Super Lawyers

TOP ROW (L-R): Donald K. Tamaki*; Minette A. Kwok*; Dale Minami* Top 100; B. Mark Fong*; Olivia Serene Lee**; MIDDLE ROW (L-R): Lisa P. Mak**; Seema Bhatt**; Suhi Koizumi*; Sean Tamura-Sato**; La Verne A. Ramsay; BOTTOM ROW (L-R): Dian Sohn; Angela C. Mapa; Claire Y. Choo; Judy Hinh Wong; Leyla Mostafavi – *Chosen to 2020 Super Lawyers **Chosen to 2020 Rising Stars 

We’re proud to announce that nine of Minami Tamaki LLP’s attorneys were selected as Northern California Super Lawyers and Rising Stars for 2020. Two of our Partners and our Senior Counsel have been named Northern California Super Lawyers for the last 17 consecutive years.

PERSONAL INJURY 
Dale Minami (Top 10, 2013-2018; Top 100, 2007-2020; Super Lawyers, 17 years) 
B. Mark Fong (Super Lawyers, 11 years) 
Seema Bhatt (Rising Stars, 4 years) 

IMMIGRATION AND NATIONALITY LAW 
Minette A. Kwok (Top 50 Women Northern California, 2014-2016; Super Lawyers, 17 years) 
Olivia Serene Lee (Rising Stars, 7 years) 
Suhi Koizumi (Super Lawyers, 2 years; Rising Star, 8 years) 

CONSUMER AND EMPLOYEE RIGHTS 
Sean Tamura-Sato (Rising Stars, 8 years) 
Lisa P. Mak (Rising Stars, 6 years) 

CORPORATE/NONPROFIT 
Donald K. Tamaki (Super Lawyers, 17 years) 

Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is independent, and attorneys cannot purchase placements on the list.

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

On Monday, June 15, 2020, the U.S. Supreme Court, in a 6-3 decision in Bostock v. Clayton County, Georgia, ruled that an employer who fires a worker merely for being gay or transgender violates Title VII. 

Title VII is the federal civil rights statute that makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). 

Specifically, the Supreme Court stated that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, because “[s]ex plays a necessary and undisguisable role in the decision,” the termination of such an employee is a violation against the Title VII protection against discrimination based on sex. 

The Court also affirmed that, as with any claim of discrimination based on sex under Title VII, an employer cannot escape liability by citing some other factor that contributed to the employment decision—if sex (and now, sexual orientation or gender identity) was one of the reasons for that decision, that violates Title VII.  The Court’s decision today extends workplace anti-discrimination protections to gay and transgender workers across the country. 

In California, protections against discrimination based on sexual orientation and gender identity are not new for most employees.  While this recent U.S. Supreme Court case decided that discrimination against homosexual and transgender individuals was discrimination based on sex, California’s Fair Housing and Employment Act (FEHA) had already explicitly stated that it is illegal for an employer to discriminate against a person based on, among other traits, sex, gender, gender identity, gender expression, and sexual orientation.  However, FEHA does not apply to federal employees in California.  With this recent Supreme Court decision, federal employees in California will now be protected from discrimination based on sexual orientation or gender identity under Title VII.

Other Questions?

For more information on workplace discrimination, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Photo by Alex Jackman via Unsplash.

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage Under All-Risk Policies

Minami Tamaki LLP’s Consumer and Employee Rights Group is investigating claims that insurance carriers are wrongfully denying business interruption insurance claims made by businesses coping with the coronavirus (COVID-19) pandemic.

Millions of businesses across the U.S. are struggling amid the economic crisis caused by coronavirus-related shutdowns. Many of these businesses have tendered claims under their business interruption coverage in their commercial property insurance policies in hopes of mitigating the losses they have experienced.

Unlike specified peril or named peril policies which only cover risks that are expressly identified in the policy, all-risk policies (also called “comprehensive” or “open peril” policies) cover everything except what is expressly excluded from the policy. Because traditional specified peril policies generally do not include viral or disease outbreaks, they will likely not provide coverage for businesses affected by the coronavirus pandemic. So, the question remains whether all-risk policies will.

Many insurance carriers, without conducting any investigation, have taken the position that claims related to COVID-19 are not covered by these all-risk policies. All-risk policies typically cover losses due to business interruption where a policyholder suffers “a direct physical loss of or damage to” the property covered under the policy. Additionally, some policies include what is called civil authority coverage which indemnifies policyholders for business interruption losses as a result of a government order that restricts access to the property. Insurance carriers have denied claims on grounds that policyholders have not suffered “a direct physical loss of or damage to” their property or that the government order did not restrict access as a direct result of “a physical loss or damage to” the property that is covered under the policy.

In early April, insurance provider Chubb Ltd. sent out a notice to policyholders on its website that “the presence of an infectious agent or communicable disease at a location where there is covered property generally will not mean that property has suffered ‘physical loss or damage’ under your policy.” Some insurance industry attorneys believe that there has been a concerted effort by insurers to dissuade the public from filing business interruption claims by sending out pre-claim notices such as Chubb’s April notice, as well as requiring property damage and denying claims based on lack of property damage.

Businesses have filed actions against their commercial property insurance carriers as their claims for losses potentially covered under their business interruption coverage have been denied. Chubb is facing a proposed class action lawsuit brought by New Jersey eatery, Benito Ristorante. Similarly, in San Francisco, Michelin-starred Thai restaurant Kin Khao has also filed suit against Oregon Mutual Insurance Company, alleging that Oregon Mutual Insurance Company is wrongfully refusing to provide business interruption coverage. As of the writing of this article, over 120 lawsuits have been filed in the past two months against insurance carriers for denial of claims for business interruption loss.

Many of these businesses claim that they are covered because government orders requiring them to cease operations have caused them to lose the use of their property. The lawsuits allege that the requirement to cease operations constitutes a physical loss of the insured property.

Contingent Business Interruption

Some policies may provide coverage for contingent business interruption losses. Contingent business interruption coverage insures against losses due to the suspension of operations of a contingent business, such as a supplier. Like the business interruption coverage, the contingent business interruption coverage requires a direct physical loss or property damage to the supplier that would have been covered if that direct physical loss or property damage was sustained by the policyholder. Again, because coverage for contingent business interruption requires a direct physical loss or damage to property, it is likely that insurance carriers will deny such claims unless there has been physical damage to the property of the contingent business.

Virus Exclusions

In 2006, the Insurance Services Offices adopted an endorsement amending coverage to exclude any losses due to virus or bacteria in response to the SARS outbreak. Policyholders who have continued to renew their policies with the same insurer over the years may discover that their policies contain virus exclusions as their claims are rejected on that basis.

However, rejection of claims based on the virus exclusion may be invalidated if the policyholder did not get notice that their coverage under the policy was changing. Under California Insurance Code section 676.2, subdivision(c)(1), if the policy has been in effect for more than 60 days or is up for renewal, a change in the conditions of coverage is not effective unless a written notice is given to the named insured at least 30 days before the effective date of the change. Thus, the insurance carrier’s failure to disclose the elimination of coverage will invalidate the exclusion.

Pre-claim notices

Any coverage analysis will depend on the specific language of the insurance contract. Some insurance carriers are sending out pre-claim notices about potential coverage for COVID-19 which includes what may be applicable portions of the policyholder’s insurance coverage provisions. These pre-claim notices are not denials of claims and are not actual determinations of coverage. As most insurers require prompt notice of any claims, policyholders must still make a claim if they would like to preserve their right to have their losses indemnified.

Other Questions?

For more information on insurance coverage for business interruption claims, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Federal Employees Have Lower Burden for Age Discrimination

Federal Employees Have Lower Burden for Age Discrimination

This week, in Babb v. Wilkie, the U.S. Supreme Court held in an 8-1 decision (Justice Thomas dissenting) that federal employees can sue for age discrimination if any part of a personnel action was tainted by age bias, even if age was not the “but-for” cause of the personnel decision. This is a lower burden for federal employees compared to the standard applied to private-sector employees bringing age discrimination claims. 

The Age Discrimination in Employment Act (“ADEA”) is a federal law that protects workers 40 years of age or older from age-based discrimination from as early as the application process all the way through termination. Thus, an employer cannot fire, refuse to hire, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of their age. 

The ADEA is applicable to employers with 20 or more employees, including state and local governments. The ADEA contains a separate provision applicable to federal employees, section 633a(a), and the different treatment of that provision was highlighted in the Supreme Court’s decision in Babb. 

In Babb v. Wilkie, Noris Babb was an employee with the U.S. Department of Veteran Affairs.  She claimed that she had been subjected to personnel actions that involved age discrimination. The ADEA provision at issue states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 

Generally, cases under the ADEA require the employee to show that age is the “but-for” cause of an employment decision; that is, the employer is liable only if the employment decision would not have occurred but for the employee’s age. 

In Babb, the federal employer argued that even if age played a part in the employment decision, the federal employer cannot be liable unless the employee or applicant can show that the decision would have been favorable to them if age had not been taken into account. The Supreme Court decided that while age must be the but-for cause of the discrimination, age did not necessarily have to be the but-for cause of the personnel action itself.

To illustrate, the Court gave this example. There are two employees up for promotion – 35-year-old Employee A and 55-year-old Employee B. The employer’s promotion policy gives numerical scores based on non-discriminatory factors. Then, candidates over 40 years of age are docked 5 points—a discriminatory factor. Employee A’s score, based on non-discriminatory factors, is 90, and Employee B’s score is 85. Then, Employee B is docked 5 points because of his age and ends up with a final score of 80. Employee A is promoted based on the final scores.  

Even if Employee B had not been docked the 5 points, Employee A would have been promoted anyway. Thus, the discriminatory practice of docking 5 points was not the but-for reason that Employee B was not promoted.  

However, as the Court points out, the promotion decision was not made “free from any discrimination based on age” because the discriminatory practice was there. For federal employees, this would still be a violation of the ADEA. Thus, even if Employee B would not have been promoted anyway, the federal employer would still be liable for age discrimination. In these kinds of situations, employees may not be entitled to damages, such as back pay or compensatory damages, but employees may be entitled to forward-looking relief, such as an order precluding the employer from using the discriminatory process in future personnel actions. 

Justice Alito explained that holding the federal government to a higher standard than private employers, state and local governments was not unusual. When the ADEA was first enacted in 1967, the prohibition against age discrimination applied only to private employers. Congress, in 1974, then expanded the scope of the ADEA to include federal, state, and local governments. For state and local governments, Congress simply added them to the definition of “employer” in the ADEA’s private-sector provision. For the federal government, Congress deliberately chose to enact a separate provision, with the specific directive that personnel actions taken by the federal government “shall be made free from any discrimination based on age.”

In summary, federal employers may be liable for discrimination if age was considered in any part of a personnel action, even if age discrimination was not the but-for cause of the final personnel action. 

Other Questions?

For more information on age discrimination in the workplace, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues.  Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

(Photo by Sebastian Pichler on Unsplash)

Minami Tamaki Investigating Airlines’ Failure to Provide Refunds for Flights Canceled Due To Coronavirus (COVID-19)

Minami Tamaki Investigating Airlines’ Failure to Provide Refunds for Flights Canceled Due To Coronavirus (COVID-19)

Minami Tamaki LLP is investigating claims that U.S. and foreign airlines have refused to provide required refunds after canceling or significantly delaying flights because of the coronavirus (COVID-19) public health emergency. 

On April 3, 2020, the U.S. Department of Transportation (“DOT”) issued an Enforcement Notice stating that airlines remain obligated to provide prompt refunds to passengers for flights to, within, or from the United States when the carrier cancels a flight or makes a “significant schedule change” and the passenger chooses not to accept the alternative offered by the airline.  

The Enforcement Notice noted that the DOT is receiving an increasing number of complaints from consumers alleging that airlines cancelled or significantly delayed flights and then failed to provide refunds.  Consumers have reported that airlines have instead offered travel vouchers or credits for future travel. However, as the DOT noted, vouchers and credits may not be readily usable given the dramatic reduction in travel schedules due to COVID-19. 

Airlines have a longstanding obligation to provide refunds to ticketed passengers upon canceling a flight or making significant changes to a flight schedule when a passenger declines alternatives such as a voucher.  See Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 at 23129. 

An airline’s obligation to provide a refund arises when the cancellation is through no fault of the passenger, and does not cease because a flight disruption is outside of the carrier’s control.  See U.S. Dept. of Transportation, Aviation Consumer Protection, Refunds.

The Enforcement Notice states that it continues to view any policy or contract of carriage provision that purports to deny refunds to passengers as a violation that could subject an airline to an enforcement action.  

The DOT stated that, in light of the ongoing COVID-19 pandemic, its Aviation Enforcement Office will provide airlines an opportunity to become compliant before pursuing an enforcement action provided that the airlines 1) contact passengers provided credit or vouchers to notify them that they have the option of a refund; 2) update their refund policies and contract of carriage provisions to make clear that they provide refunds; and 3) review with their personnel the circumstances under which refunds should be made. 

If you were denied a refund after cancellation or a significant schedule change of air travel due to COVID-19 and would like more information, you may contact us online or call us at 415-788-9000.

Coronavirus Stimulus Package Provides Relief for Employees and Small Businesses

Coronavirus Stimulus Package Provides Relief for Employees and Small Businesses

The Coronavirus Aid, Relief and Economic Security (CARES) Act signed into law on Friday, March 27, will provide much-needed assistance to a country struggling with the impact of the coronavirus (COVID-19) pandemic. The $2 trillion economic relief plan has numerous provisions aimed at helping U.S. workers, small businesses, and industries.  The following information summarizes some key provisions of the bill; employees and employers should contact their attorney or one of our employment attorneys at Minami Tamaki for specific legal advice.  

Stimulus Checks

Individuals who earn $75,000 in adjusted gross income or less will receive direct payments of $1,200.  Married couples earning up to $150,000 will receive $2,400.  For every qualifying child age 16 or younger, the payment will be an additional $500.  

Stimulus payments phase out for earners above the income thresholds until stopping altogether for single people earning $99,000 or married people with no children earning $198,000.  

Eligibility for stimulus payments is based on 2019 income.  For individuals who have not prepared a 2019 tax return yet, their 2018 income amounts will apply. 

Unemployment Benefits

The stimulus package will increase the amount of unemployment benefits that many individuals can receive, extend the length of time that benefits can be received, and include many workers not previously eligible for unemployment insurance. 

The exact amount of unemployment benefits that workers will receive differs by state, but benefits will be expanded in an attempt to replace workers’ paychecks.  Individuals will be able to receive an extra $600 per week for up to four months on top of state unemployment benefits.  

The stimulus package also provides eligible workers with an additional 13 weeks of unemployment insurance on top of what they would normally be able to receive in their state.  The maximum benefit period in California is typically 26 weeks, so Californians will now be able to receive up to 39 weeks of unemployment benefits. 

Self-employed workers, independent contractors, freelancers and gig economy workers who have lost work due to the coronavirus pandemic are eligible for unemployment insurance under the CARES Act.  These individuals who do not regularly qualify for unemployment insurance will be able to receive 50% of the average unemployment benefit in their state, plus the $600 per week payments. 

Small Business Paycheck Protection Program

Businesses with fewer than 500 employees (including non-profit organizations) will have access to loans backed by the Small Business Administration.  These loans are eligible for forgiveness if used for covering payroll, rent, utilities, and other qualifying expenses in order to maintain operations during the coronavirus pandemic.  Accrued interest is required to be repaid. 

Small businesses can receive loans of up to $10 million with interest rates capped at 4%.  The bill provides for an expedited origination process with local lenders determining eligibility and credit worthiness. 

Small Business Economic Injury Disaster Loans

The CARES Act provides additional funding to expand the Small Business Administration’s Disaster Loan Program.  Businesses with fewer than 500 employees may apply for loans of up to $2 million to cover expenditures necessary to alleviate economic injury caused by the coronavirus pandemic. 

Disaster Loan Program applicants can also seek an emergency grant of $10,000.  Notably, businesses are not required to repay the $10,000 even if their underlying application is later denied.  

More information on the Disaster Loan Program is available here.

Tax Credits

The CARES Act also includes provisions regarding tax credits to provide relief to employers whose operations have been impacted by the coronavirus pandemic, and to incentivize employers to keep workers on staff.  Employers should consult with their tax advisors regarding these provisions of the bill.

Other Questions?

For more information on employee benefits and business solutions related to the coronavirus, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues.  Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.