The State of the COVID-19 Crisis in California

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PANDEMIC

“Who speaks of victory? To endure is all."

      ––	Rainer Maria Rilke

An orientation is useful only for phenomena that are not widely known. Although the mysteries of COVID-19 are still being unraveled, it might be one of the only subjects that everyone on Earth is at least familiar with.

California employers, insurers and individuals are grappling not with the introduction of a true global pandemic, but how to adapt our businesses and our personal lives around its persistent presence and the uncertainty of the timing or even the eventuality of its departure. As of this writing in mid-July 2020, more than 1% of the U.S. population has tested positive for the virus, and there is no end in sight.

A coordinated national response is absent, so local state and county orders determine what is allowed to remain open among businesses, beaches, schools and churches. The leaders making these decisions are in a difficult position, and they operate from the same uncertainty as the rest of us. Their decisions change. Working from home, or as was recently noted online, "living at work," is a tough new reality for many people. Unemployment is a tougher one for a historically vast number of people.

Legislation for government aid has been hastily and clumsily passed. The funds have kept some businesses and individuals afloat, but it’s running out and no one knows what to expect. Political polarization is at a high. Everyone is stressed out and looking for relief.

Businesses must be tough to get through this. Legal complexity abounds, and complex decisions must be made faster than ever. Businesses with grit, those that can adapt and innovate, will survive. We hope this guide helps California employers and their insurers navigate the challenging and unfamiliar legal terrain.

We will update this publication continually, as understanding of the situation improves, as crisis law continues to evolve, as innovative thinking maps a successful path through this complex problem.

Employers, insurers and employees can recover from the ravages of COVID-19. We can help.

WORKERS' COMPENSATION QUESTIONS

The implications for workers' compensation claims are vast. What happens when an injury arises in the home environment? Is a fall down the stairs now a compensable injury? What if it happens at night? What if it happens out in the yard, but during work hours? What was that called again –– oh yes, the personal comfort doctrine. Is the entire home a “zone of danger” while the stay-at-home order is in effect, or after it's lifted but while employees are still working from home? Is any claim of injury beyond first aid defensible?

What of the virus itself? Under what circumstances is catching it compensable? What's the status of the various legislative efforts to create presumptions regarding COVID-19? What if a family member is quarantined in the same home where an injured employee is required to work? Would the fact that he or she would have to go home even if he or she was working on-site serve as a defense? What's the standard of proof?

And what of the psychological claims that will inevitably develop around all of this? COVID-19 is stressful for everyone. Uncertainty abounds about the future of the national and global economies, about how long we must endure the virus, about how to restart the economy, about how to balance economic and public health needs. Massive uncertainty reigns in a polarized nation during an election year. The phenomenon lacks the hallmarks of an actual event of employment, but could it be a platform for the defense of psychological claims under the predominant causation requirement of the Labor Code? Is being sent home a personnel action?

If a claim is filed, what if it interacts with a co-morbidity, for example, heart problems? What if the co-morbidity itself is an industrial injury or condition? What if the virus in combination with a co-morbidity causes permanent problems? What if it causes death? If an employee is on modified duty, and gets laid off, is temporary disability appropriate? If it's not provided, is that an LC 132a violation? The implications for the obligation to provide benefits are myriad and complex.

What about process? When is an employer obligated to provide a claim form to a sick worker? How can an employer manage all the required letters when claims adjusters are working from home? Is there any functioning court system? As the Workers' Compensation Appeals Board seeks to adapt to stay-at-home practice, use of a popular call-in service is supplanted by the use of appeals board telephones. What can we expect from this alternative system? Early reports indicate that appearance is voluntary –– is there any legal authority for this to be otherwise? What are the immediate practical implications of the alternative process for existing bodies of litigated claims? What should employers and insurers do to innovate in this environment? What of depositions and qualified medical evaluator in-person exams? What’s working?

EMPLOYMENT AND LABOR ISSUES

California is well known as one of the most (if not the most) challenging states for employers to comply with the complex body of employment law. In this new era of COVID-19, employers will be tasked like never before to remain compliant in a minefield of liability traps.

What are an employer’s obligations to maintain a healthful workplace? What's the limit of inquiry into an employee’s health conditions as they relate to COVID-19? May physical exams, such as taking temperatures, be conducted in the workplace? Do these restrictions change when employees are teleworking?

With the onset of new and evolving federal/state/local laws mandating leave benefits to employees, businesses must decipher which, if not all, apply. How long must paid leave be provided (and at what rate) for employees affected by COVID-19? Are a company’s generous paid leave policies sufficient, or must it offer more? Does the employer pay the new benefits, or do government entities? What if the company cannot function if these employees are on leave? How do the Family and Medical Leave and California Family Rights acts interplay with the benefits bestowed by the new Families First Coronavirus Response Act? What about furloughed/laid off employees?

Federal and state discrimination, accommodation and retaliation laws similarly are implicated in new and complex ways. Is COVID-19 a disability for which an employer is required to make reasonable accommodations? Even if the disease is not an actual disability, what are the dangers of regarding or treating an employee as disabled because of COVID-19-related issues? May “at risk” employees be forced to telework to protect other employees? What new policies may be implemented without running afoul of race and age discrimination statutes? May new hires be screened and denied jobs if they test positive for COVID-19?

These are just a few within a universe of issues employers must understand and properly navigate to avoid costly liability exposure in California.

What follows is our best on how to understand how California law relates to COVID-19.

SEE ALSO

• When Is COVID-19 Work Related?
• Federal and California Worker Adjustment and Retraining Notification Acts
• California Resources — Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave

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