Author: wmlawyersdev

By John Winer

“Have you been vaccinated for Covid-19?” It’s a question employer may be tempted to ask as employees begin to return to the workplace.  But is it necessary for a safe work environment or a violation of workers’ medical privacy?

It’s an issue that raises legal and ethical questions as business owners and employers prepare safe “return to work” plans.  So, can an employer require an employee to get a vaccine before they’re allowed to return to the workplace?

The Equal Employment Opportunity Commission (EEOC) is offering guidance.  It says employers can legally require employees to be vaccinated with two primary areas of exception.

The first exception involves disability considerations.  Perhaps an employee has allergies involving the vaccine ingredients.   Maybe an employee is pregnant or nursing and their doctor has discouraged them from being vaccinated.  The EEOC guidance points to the ADA qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  This means the employer “must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).

In other words, an employer can determine that an unvaccinated employee can expose others to the virus at the worksite.  Employers are obligated to try to accommodate the employee, but if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.

The next exemption is for religious considerations.  Once again, the EEOC reminds employers of their obligation for reasonable accommodations.   If no accommodation that reduces the risk of harm to others is possible, the employer is legally allowed to exclude the unvaccinated worker from the workplace.

But, even with this guidance, the EEOC points out that excluding a worker from the workplace doesn’t trigger automatic termination of that employee.   Those cases need to be evaluated to see if other rights apply under the EEO laws or other federal, state, and local laws.

As for asking the question, “Have you been vaccinated?”:  Does that question violate the medical privacy rights of an employee?  The answer, according to the EEOC, is no.   The agency says not only can employers ask, but they can also require proof of vaccination.   What the guidance warns against, however, is that employers must be careful with their questions in situations where vaccines are voluntary and not required for the job.   Questioning an employee about why they opted not to be vaccinated could venture into medical information that is protected by the ADA.

Communication with workers is key.  Let them know the strategy and expectations for keeping the workplace safe.  And remember that vaccination policies can change in the future.  As everything that has evolved in the past thirteen months of this pandemic—non-mandatory vaccination policies can become mandatory if warranted and the reverse may become a possibility sometimes too.

There’s a balance between protecting workplace safety and workers’ medical privacy.  Careful policies and communication along with safety protocols will help bring an end to the pandemic.  With the noted exceptions and restrictions, employers can ask about vaccination status and require vaccines as a condition of employment.

Written by John Winer

For many years, companies and legislators have debated whether gig economy workers like those who work for Uber, Lyft, Instacart, Postmates, and DoorDash should be entitled to benefits such as minimum wage and unemployment insurance. In November 2020, gig economy companies celebrated a major victory after California voted to pass a controversial ballot measure to exempt them from having to classify their gig workers as employees rather than as independent contractors. According to a CNN report, Proposition 22 was the most expensive ballot measure in California’s history, with Uber and Lyft along with a few other gig economy companies spending more than $205 million to pass the measure on the ballot, but the newly passed proposition has been met with some challenges since its enactment.

Ballotpedia reported that Prop. 22 passed with around 58% of the vote with the help of the Protect App-Based Drivers and Services coalition, known as the Yes on 22 campaign, which worked to support its passage and raise over $200 million for the campaign. According to a Sacramento Bee report, under Prop. 22, drivers for gig economy companies only qualify for 120% of the minimum wage during the time they are picking up and driving a passenger in their car, plus 30 cents a mile. The companies are not required to contribute to Social Security, Medicare, or unemployment insurance, and few drivers qualify for other healthcare options. Contractors are typically ineligible for state unemployment insurance because they are self-employed, and they are the sole contributors to their retirement accounts. Independent contractors will find that liability insurance premiums are generally higher than the collective rates that employers will secure for their workers and it may be required by certain employers.

Earlier this year, Prop. 22 was met with its first legal challenge after a small group of app-based drivers and two major labor unions, The Service Employees International Union (SEIU) and the California Labor Federation, filed a lawsuit in the Supreme Court to overturn the ballot measure. According to a report by the Los Angeles Times, the suit claimed the measure was unconstitutional because it limited the power of the state’s legislature from creating and enforcing a workers’ compensation system for gig workers. One of the plaintiffs in the lawsuit claimed that the independent contractor status left drivers like him with “no savings, sick days, health insurance or unemployment during a pandemic.” After a brief review, the California Supreme Court declined to hear the case brought on by the drivers and unions, claiming the case could be filed in a lower court. Following the rejection, the plaintiffs alleged that they were still planning to continue pushing forward with their legal challenge against Prop. 22.

Not only did gig economy workers feel the negative effect of Prop. 22, but customers did as well. According to MarketWatch, soon after the measure was passed, some gig economy companies claimed they were planning to raise rates for customers. Uber called on increases on every ride and delivery a “California Driver Benefits Fee,” which the ride-sharing company said would vary depending on the costs of operating in different markets. DoorDash also said it was exploring slight increases in service fees. Gig Workers Rising, a worker’s rights group called the increase “a corporate bait and switch,” saying in a statement, “Uber and other app corporations said time and again during their Prop. 22 campaign that if the measure failed to go through, riders could expect higher rates. Now that Prop. 22 has passed, Uber is announcing that riders will have to shoulder increased costs after all.”

While Uber may have won their legal battle in the United States, it did not face the same outcome overseas. In February, a court in the United Kingdom ruled that gig companies must treat their workers as employees, forcing Uber to classify around 70,000 drivers as workers and give them some benefits, per a report by The Verge. Although drivers will still not be considered full-time employees, they would be able to accrue vacation time and receive a minimum wage while driving fares, as well as have the option of enrolling in a pension plan. It’s only been four months since the measure was passed and it has already been met with some challenges. It’s clear that gig economy workers need the same benefits that are provided to traditional workers, such as minimum wage, overtime pay, workers’ compensation, unemployment, and state disability insurance. As the pandemic forced many to seek jobs in the gig economy, it also exposed just how vital basic protections are for gig economy workers.

By John Winer

March 10, 2021

A series of violent attacks against Asian Americans has surged in the United States following the COVID-19 pandemic, sparking fear and outrage around the world, with civil rights groups and advocates demanding action. In 2020, a hate-incident-reporting website received thousands of self-reports of discrimination and harassment nationwide, from verbal harassment to physical assault. CNN reports that despite being the fastest-growing racial and ethnic group in the country, the racism, discrimination, and harassment that is experienced by the Asian American community is often overlooked.

The increasing harassment and violence targeting Asian Americans have been described as a silent symptom of the coronavirus pandemic. Between March 19 and December 31, 2020, Stop AAPI Hate, a center that tracks and responds to incidents of hate, violence, harassment, and discrimination against Asian Americans in the U.S., received 2,808 reported incidents of racism and discrimination targeting Asian Americans across the U.S. Of those reports, 1,226 incidents took place in California alone, with most of them occurring in the Bay Area. Types of discrimination include verbal harassment, physical assault, and denial of access to services and public spaces. An October 2020 Pew study found unfavorable views of China had reached highs across the world, including in the United States. A United Nations report associated the rise in negative views against Asian Americans to former President Donald Trump’s use of racist language to describe the pandemic’s origins in China.

A recent ABC News report revealed that in the last few months, there have been nearly two dozen violent and unprovoked attacks against Asian Americans in the Bay Area, leaving communities on edge. The majority of incidents in the Bay Area took place in San Francisco, with the second and third most incidents occurring in San Jose and Oakland. The series of high-profile incidents captured on video helped bring awareness to the hateful attacks on Asian Americans. Police in Oakland recently announced that they had arrested a suspect in connection with a brutal attack of a 91-year-old man in Chinatown that was caught on camera. Other incidents include a Thai man who was attacked and killed in San Francisco, a Vietnamese woman who was assaulted and robbed of $1,000 in San Jose, and an 84-year-old man who died following an attack in San Francisco’s Anza Vista neighborhood. It’s unclear whether the crimes were racially motivated, but advocates are calling for more to be done to address violence against Asian Americans.

But the Bay Area is not the only place that has seen a rise in violence. The L.A. Times reported that hate crimes against Asian Americans and other members of the Asian and Pacific Islander communities rose sharply in Los Angeles in 2020, causing concern among police and local advocacy organizations. Data also revealed that the increase in anti-Asian hate crime was the highest in New York City, which is the largest city with a high Asian population, where police recently investigated a record 28 incidents involving Asian American victims.

Many in the spotlight are using their platform to bring attention to the racism and xenophobic violence against Asian Americans during the current pandemic, including N.B.A. star Jeremey Lin, who is Taiwanese-American. CBS San Francisco recently spoke to Lin on the recent attacks on Asian Americans, where he opened up about his own experiences with racism on the court. In a Facebook post, he focuses on the recent attacks on Asian Americans and describes a time where he was called “coronavirus” during a game. In his post, Lin wrote, “Being a 9-year NBA veteran doesn’t protect me from being called ‘coronavirus’ on the court. We are tired of being told that we don’t experience racism, we are tired of being told to keep our heads down and not make trouble. I want better for my elders who worked so hard and sacrificed so much to make a life for themselves here.” The New York Times reported that an N.B.A. G league spokesman had confirmed that an investigation had been opened following the reports.

In response to the alarming escalation in violence resulting from the COVID-19 pandemic, CBS News reports that communities in Los Angeles and Orange County are coming together to bring awareness. Dozens have signed up to volunteer to help feed and provide protective equipment for the elderly in Orange County’s Asian community. Several Los Angeles City Council members introduced two motions in an attempt to address the rise in hate crimes and harassment against the Asian American and Pacific Islander community. One motion calls for L.A.P.D. to report on data of the increased crimes against Asian Americans and the department’s response to the trend, while the second motion directs the chief legislative analyst to report on recommendations to strengthen the city’s oversight, mitigation, and response to street harassment. It also requests the Los Angeles County Metropolitan Authority to report on past and upcoming efforts to curtail harassment on public transportation.

Last month, President Joe Biden acknowledged and condemned discriminatory attitudes and hate crimes toward people of Asian descent. He also signed an executive action directing federal agencies to combat xenophobia against the Asian American Pacific Islander community. The executive action was welcomed as an “important first step” by civil rights advocacy groups that had voiced concerns over former President Donald Trump’s rhetoric about the virus and its impact on the AAPI community. Other groups emphasized that more information was needed at the federal level to examine the pandemic’s effects. “It is not enough to simply condemn racism, xenophobia, and violence. We must call attention to these injustices and protect one another during these times.”

John Winer was featured in the Los Angeles Daily Journal’s New Laws 2021 edition regarding AB 2143, which aims to bring changes to AB 749, a #MeToo inspired bill that prohibited the use of no-rehire clauses in settlement agreements regarding disputes in which the worker had filed a complaint against the employer. In 2020, Gov. Gavin Newsom signed AB 2143 into law, which amends AB 749 to also allow an exception, permitting a no-rehire provision if the aggrieved party has engaged in criminal conduct. In order for the sexual harassment or sexual assault exception to apply, the employer must have documented the good faith determination of sexual harassment or sexual assault before the aggrieved party filed the claim against the employer.