Issue 124 – June 2022

Workers’ Compensation Symposium

The California JPIA is pleased to announce the program for the 2022 Workers’ Compensation Symposium. The event will be held in-person, on Thursday, August 4 at the Authority’s La Palma Campus. The annual symposium will provide member risk managers and human resource professionals the opportunity to come together to learn and discuss hot topics relevant to their agencies’ workers’ compensation programs.

“We are particularly excited for this year’s Workers’ Compensation Symposium because it will be the first time in three years that we are all back together,” said California JPIA Workers’ Compensation Program Manager Jeff Rush. “Our event is packed with opportunities to learn and discuss all of the very exciting pending legislation and case law.”

This year’s program will include four presentations highlighting emerging issues and important topics on workers’ compensation. The symposium will begin at 9:30 a.m. with the following schedule:

9:30–9:45 a.m.	Introductions
9:45–10:45 a.m.	Managing the Industrial Disability Retirement Process Dave Thomas and Teresa McGinity Hanna Brophy
10:45–11:30 a.m.	Navigating Legal Challenges of PTSD Claims Jessica Tyndall and Jeremiah Heisler Goldman, Magdalin & Krikes
11:30 a.m. –12 p.m.	2022 Legislative Update Jeff Rush, Workers’ Compensation Program Manager California JPIA
12–12:45 p.m.	Lunch
12:45–1:30 p.m.	When Dessert Goes Bad (The See’s Candies Case) Josh Goldsmith Siegel, Moreno & Stettler

“It is crucial for Authority members to understand pending legislation changes spurred by the novel events of the past few years,” said Rush. “The California JPIA looks forward to facilitating open discussions on the many critical changes relevant to agency members’ workers’ compensation programs. This year’s symposium will provide the perfect opportunity for members to hear from service providers, gather insight on important topics, and network with their peers.”

For more information about how to participate in the symposium, please visit the event website or contact Jeff Rush by email or at (562) 467-8707.

Risk Managers Committee Inaugural Meeting

During the California JPIA’s inaugural Risk Managers Committee meeting on May 16, approximately 30 member agency risk managers addressed timely topics, including wildfire risk management, fire prevention, and facility reinforcements.

The recently formed committee provides a forum for collaboration among the agencies that compose the Authority’s membership.

“Risk managers often are a public agency’s first line of defense against risk,” said Brad McKinney, assistant city manager for the City of San Dimas and the committee’s newly elected chair. “I think it’s important to provide a space where risk managers can speak candidly and ensure delivery of optimal risk management solutions.”

McKinney and Arabo Parseghian, division manager for the City of La Cañada Flintridge and committee vice-chair, hope the group will allow the California JPIA’s member agency risk managers to save time, money, and resources by sharing information and lessons learned.

“I want the committee to become a unified front when it comes to being proactive about risk management,” said Parseghian. “As the committee starts to communicate more frequently, we will share ideas and solutions to transfer knowledge and experiences among agencies.”

The next quarterly Risk Managers Committee meeting is scheduled for August 15.

Safe at Work: Staying Compliant Amidst a Changing Workplace

By Ashley Sykora, Associate, Liebert Cassidy Whitmore

Originally published on June 7, 2022. Reprinted with permission from Liebert Cassidy Whitmore.

The past two years have challenged employers’ resilience and adaptability in our rapidly-changing workplaces. One such change was the explosion of remote work, which swept across workplaces throughout the country and in some cases, landed a permanent position at the hiring table. As employers adapt to the increasing prevalence of remote work, one important question surfaces: What is an employer’s duty to keep the workplace safe for remote workers?

The recent decision in Colonial Van v. Superior Court may help answer that question.

In that case, wife Carol Holaday and her husband Jim Willcoxson were both employed by Colonial Van & Storage Inc. Ms. Holaday generally worked in her company’s Fresno office, however, she was authorized to work from home at her discretion. She frequently had her fellow co-workers visit her home for both social and work-related reasons. Carol Holaday’s son, Kyle, also resided with his mother and Willcoxson. Kyle was a war veteran suffering from PTSD. He also had a history of misusing firearms and kept loaded guns around the house.

On the evening of March 24, Holaday and Willcoxson invited Crystal Dominguez and Rachel Schindler, who also brought her 5-month-old child, to their house. Dominguez was a fellow Colonial employee. Schindler worked for a different moving company that frequently worked with Colonial; she only knew Holaday and Willcoxson in a professional setting. Kyle was also present that evening. While everyone was in the living room, Kyle shot and killed Willcoxson and wounded Holaday, Schindler, and Dominguez.

Dominguez and Schindler filed lawsuits against both Holaday and Colonial. Amongst other things, they alleged that Colonial was vicariously liable for Holaday’s misconduct pursuant to the doctrine of respondeat superior. After Colonial’s summary judgment motion was denied by the trial court, Colonial requested a writ of mandate from the Second District Court of Appeal to vacate the decision. The court was faced with the following question: Does an employer have a duty to ensure that off-site work locations are safe from third-party criminal conduct?

The court found that Colonial did not owe Dominguez nor Schindler a duty to protect, because Colonial did not own, possess, or control the home where the incident happened. Colonial did not set specific hours for the employees to work in the home, designate the home as a business location for insurance or tax purposes, nor list the home as an extension of the business on business documents. The court further held that although Colonial derived a commercial benefit from the home, by nature of Holaday working from home at times, it was still insufficient to create a duty to protect.

The court also found that Colonial did not owe Dominguez a duty to protect based on the employer-employee relationship. Again, the court emphasized that Colonial did not have control over the Holaday’s home since it was a private residence. Moreover Colonial did not have any control over Holaday’s son, Kyle, such that Colonial was negligent in preventing the assault. Kyle was not himself an employee of Colonial, so Colonial was unaware of Kyle’s PTSD, violent past, or gun misuse. Nor was there evidence of any prior threats or attacks by Kyle on Colonial employees.

Accordingly, the Appellate Court vacated the lower court’s decision and granted Colonial’s motion for summary judgment on all causes.

This holding provides a promising outlook regarding employers’ duties with respect to remote work. While the decision still leaves some questions open (for example: would there be a duty if remote work was required as part of the position?) it is an encouraging start for limiting employer liability to the standard workplace.

And as a reminder, for all your employees still in the office, the Department of Fair Employment and Housing (DFEH) requires employers to display several required posters throughout the workplace in order to maintain a safe and equitable working environment. As of this year, DFEH updated several of the required posters, including the Prohibition on Workplace Discrimination and Harassment, the Rights and Obligations of a Pregnant Employee, and the Family Care & Medical Leave & Pregnancy Disability Leave posters.

Such posters must be displayed (1) at each location where an employer has employees; (2) at employment agencies, hiring offices, and union halls; and (3) on computers as long as the posters are posted electronically in a conspicuous place where employees will tend to see it. The text of the posters must be large enough for employees and job applicants to read them, and must be displayed in any language spoken by 10% or more of the employer’s workforce.

A link to all required posters, as well as others, can be found here: https://www.dfeh.ca.gov/publications/#requiredBody

Register Now for the California JPIA’s 27th Annual Risk Management Educational Forum

Registration is open for Adventures in Risk Management, the California JPIA’s 27th Annual Risk Management Educational Forum. The Forum will be held October 5–7, 2022, at the Hilton Santa Barbara Beachfront Resort.

This year’s keynote speaker, former Boston Police Chief Daniel Linskey, will impart lessons on leading before, during, and after a crisis, through the lens of how he guided his team’s response to an unthinkable challenge, the 2013 Boston Marathon bombing.

Other premier educational opportunities will include panels and guest speakers who will discuss remote work environments, contractual risk transfer, earthquake preparedness and response strategies, and workplace violence. The City of Alhambra will demonstrate how collaboration between human resources, administration, and public safety can help reduce workplace injuries and build trust, while Jacob Green, author of See Change Clearly: Leveraging Adversity to Sharpen Your Vision and Build Resilient Teams, will coach elected and appointed officials to collaborate with staff leaders to make a positive and lasting impact in their community.

Registration is limited to public agency officials and staff, as well as the Authority’s business partners. There is no registration fee for members of the California JPIA.

Visit our Risk Management Educational Forum website page for more information or visit the registration page. For questions, send us an email.

Senate Bill 1127

On June 22, 2022, Senate Bill (SB) 1127 was approved by the California State Assembly Insurance Committee and referred to the California State Assembly Appropriations Committee for review. Among other provisions, SB 1127 seeks to amend existing workers’ compensation law by reducing the decision timeframe an employer has to accept or deny a claim from 90 days to 75 days. While the bill has not yet been passed, the Authority has outlined the changes it would impart to the workers’ compensation claim system in California and the implications caused by these changes.

Current law establishes a workers’ compensation claim system as follows: After an injured employee files a claim with their employer for injuries sustained while on the job, if liability is not rejected within 90 days, the claim is accepted, and the injury is presumed compensable. SB 1127 proposes reducing the current 90-day window to a 75-day window. Other notable provisions the proposed bill would enact if passed include:

Increasing the number of compensable weeks from 104 to 240 without limitation for firefighters and peace officers claiming an injury related to cancer.
Increasing the penalty placed on an employer for unreasonably rejecting specific claims of injury sustained by a member of law enforcement or a first responder. Current law requires that when a claim is wrongly denied, an employer must pay up to 25% more than the amount an individual was unreasonably denied or $10,000, whichever is less. SB 1127 would require employers to pay five times the amount of the benefits unreasonably denied, amounting to a penalty not to exceed $50,000.

While it is uncertain how these changes will affect presumptive workers’ compensation cases in California, a similar, unsuccessful bill, SB 335 (Cortese), may provide insight.

In July 2021, SB 335 failed to pass in the Assembly Insurance Committee. Similar to SB 1127, this bill proposed cutting the decision time frame from 90 days to 45 days for most claims and 30 days for specific claims. The bill received minimal “yes” votes, and even those legislators who voted yes asked to remove language referencing the reduced decision timeframe.

Both of these bills’ reduced timeframes raise the concern that an employer’s ability to adequately and appropriately investigate a claim may be impeded.

The California JPIA’s Workers’ Compensation Program Manager, Jeff Rush, notes it is often already difficult to complete a thorough investigation within a 90-day timeframe.

Investigating a workers’ compensation claim requires time, energy, and resources. A proper investigation often includes multiple interviews with the injured employee, co-workers, and relatives or friends who can speak to the injury. A thorough review of the workplace where the injury occurred, as well as a review of online surveillance and video surveillance of the area, helps paint a clearer picture of the events surrounding a workplace injury.

“If SB 1127 passes, it will fundamentally change the landscape of how presumptive workers’ compensation cases are handled in California,” said Rush, who, along with California JPIA Senior Risk Manager Tim Karcz, serves on the California Association of Joint Powers Authorities’ Legislative Committee. “The ability to thoroughly investigate a claim may be greatly diminished if employers are forced to do so in only 75 days.”

There is also concern that the increased penalty, combined with the lack of time to complete a thorough investigation, may cause employers to accept claims in lieu of doing their due diligence—simply to avoid the potentially sizable penalties outlined in the bill.

The California JPIA continues its leadership role in tracking legislation that will affect members if signed into law. The Authority urges members to continue tracking SB 1127 and reach out to their local legislators if they find issues with the proposed bill. The Authority also provides training and resources in workers’ compensation and recommends members reach out to their regional risk manager to discuss how new legislation may impact them.

Midpeninsula Regional Open Space District 50th Anniversary

The California JPIA celebrates the 50th anniversary of the Midpeninsula Regional Open Space District.

For 50 years, the Midpeninsula Regional Open Space District (Midpen) has preserved and protected more than 65,000 acres of open space lands in San Mateo and Santa Clara counties. Throughout this time it has educated San Francisco Bay Area residents on the importance of preserving landscapes, raising environmental awareness, and caring for natural areas.

The district originated with a grassroots effort by community members. As the Bay Area experienced rapid growth during the 1960s, a group of residents worried they would lose irreplaceable vegetation, green space, trails, fresh air, and wildlife. They formed the “Room to Breathe” organization and collected more than 5,000 signatures to put a ballot measure in place to form a special district.

After the measure passed by 67.7 percent, what is now the Midpeninsula Regional Open Space District was formed in 1972.

Midpen quickly established itself in the Bay Area, purchasing and preserving more than 13,000 acres of land by its 10th anniversary. Half a century later, Midpen protects 65,000 acres across 26 open space preserves, manages more than 245 miles of trails, and serves more than 770,000 residents.

“Throughout our 50th anniversary year, we are celebrating the accomplishments we, together as a community, have made in open space and agricultural preservation, natural resource protection, and public education and enjoyment,” said Leigh Ann Gessner, a public affairs specialist at Midpen.

While sustaining crucial restoration efforts, the special district’s diverse landscapes also bring about a unique set of potential risks, according to California JPIA Senior Risk Manager Tim Karcz, who supports the district. He shared that Midpen must manage wildfire mitigation, land use, wild animal policies, trail maintenance, and ranger staff training, as well as other unique risks, such as rescuing an orphaned mountain lion cub this April.

“Midpen is always doing something: redeveloping or converting spaces into property that the public can use and enjoy,” said Karcz. “They have a very good organizational structure, as well as intelligent and proactive leaders who understand and manage risk.”

Recently, with the guidance of the California JPIA, Midpen constructed a new headquarters building—a redesigned, vintage building they purchased to help advance their goals and strategic plans—after outgrowing the facility out of which they operated for 30 years. The California JPIA ensured they transferred and managed risk by strategically choosing contractors and securing required insurance.

“They completely redesigned the building, and it’s beautiful,” said Karcz. “They leveraged their resources to forward their mission and avoided any issues during the construction project.”

Midpen consistently purchases new land to bring under their preservation umbrella, addressing sites ranging from abandoned farms and former rodeo grounds to aging housing developments. They work diligently to restore the land’s natural functions, all while offering a place where residents and visitors can connect with nature.

“It’s a cool thing that the district devotes time, energy, and resources to make this happen,” said Karcz. “They’re in an environment where they must constantly reinvent themselves and prove themselves. And they do a good job at it.”

To learn more about the Midpeninsula Regional Open Space District, visit its website.

San Luis Obispo Functional Mobility Program

By Tim Karcz, Senior Risk Manager

Never short of unique approaches to managing risk, the City of San Luis Obispo’s Fire Department is spearheading a health and wellness program that is quickly gaining traction in the public safety sector. The program, known generally as Functional Mobility Training, helps fire department staff to achieve better coordination and true mobility by focusing on making the musculoskeletal system function optimally. Additionally, it promotes soft tissue (muscle, ligament, tendon) and vertebral disc health and resiliency.

“Functional Mobility Training,” as described by Dr. Andrea Ormonde, a key instructor and driver of the City of San Luis Obispo Fire Department program, “is born out of scientific research. All of the movements and training techniques have been selected based on a meticulous and rigorous investigation of evidence, conducted on fire department operations by physical conditioning and medical experts, as it pertains to body control, injury prevention, joint health, and physical longevity.” Using these techniques, Dr. Ormonde has been able to address the department’s injury-driving activities through the ongoing health and wellness of the department’s firefighters.

The program includes a certified self-screening process enabling firefighters to monitor their own bodies for dysfunction that may be causing pain, loss of performance, or potential increased risk of injury. Each firefighter is given a Selective Functional Movement Assessment (SFMA) prior to the start of the program so a baseline movement score can be established. Tailored approaches to their individual needs are developed and adhered to. The firefighters are re-assessed on a recurring basis to ensure improvement in functional mobility, therefore helping to reduce injury.

In addition, ongoing educational classes and physical trainings held each week work in conjunction with the screenings to help the firefighters become aware of their body, including any limitations they may have and mobility techniques necessary to increase tissue flexibility and control while ultimately mitigating injury by allowing the body to become more resilient.

The California JPIA is excited to partner with the city on this program. For more information, please contact your regional risk manager.

AB 506, Child Abuse and Neglect Prevention

By Alex Mellor, Senior Risk Manager

On January 1, 2022, California Assembly Bill 506 (Gonzalez) went into effect. This new law requires “Youth Service Organizations” (including local government agencies) to take the following steps to prevent child abuse:

Provide training in child abuse and neglect, identification, and reporting to all agency administrators, employees, and regular volunteers.
Perform background checks pursuant to Section 11105.3 of the CA Penal Code on all agency administrators, employees, and regular volunteers, and exclude any persons with a history of child abuse.
Develop and implement child abuse prevention policies and procedures, including, but not limited to:
- Policies to ensure the reporting of suspected incidents of child abuse to persons or entities outside of the organization, including the reporting required pursuant to Section 11165.9 of the CA Penal Code.
- Policies requiring, to the extent possible, the presence of at least two mandated reporters whenever administrators, employees, or volunteers are in contact with or supervising children.

While many members with youth-serving programs already meet these requirements, those who do not are strongly encouraged to take steps toward compliance. The California JPIA has resources to assist, including a Mandated Child Abuse and Neglect Reporting Policy template (available in the resource library) and Mandated Reporter Training in both classroom and virtual settings. Web-based training is also available through the Office of Child Abuse Prevention, California Department of Social Services.

Grooming is a process by which offenders gradually draw victims into a predatory relationship while maintaining that relationship in secrecy. Members are strongly encouraged to conduct training for employees and volunteers so they may recognize the grooming process and common grooming behaviors. While background checks are recognized as an effective method to screen out convicted abusers, many others have not been detected by the criminal justice system. Therefore, additional screening procedures are needed to exclude potential abusers from employment or volunteer opportunities.

Finally, members should also have a robust recordkeeping system designed to retain important records related to the agency’s child abuse prevention efforts.

If you have questions, please contact your regional risk manager.

Recurring Evidence of Coverage

By Jim Thyden, Insurance Programs Manager

The Authority recently released a new Evidence of Coverage (EOC) webpage, where members can obtain recurring EOCs through the Authority’s portal page.

An EOC, sometimes referred to by other parties as a Certificate of Insurance (COI), provides proof of liability (including auto liability) and workers’ compensation coverage. EOCs are commonly issued to third parties, such as individuals, vendors, companies, school districts, and other agencies.

The Authority encourages members to review all current EOCs listed to identify those that should be reissued or are no longer needed. EOCs can be revised immediately, and PDFs will be emailed to the member to distribute as necessary to those who require the evidence of coverage.

If you have questions about EOCs, please contact Insurance Programs Manager Jim Thyden. Members who require evidence of property coverage may contact Christopher Gray at (949) 660-5944 or cgray@alliant.com for assistance.

New FMLA Mental Health Resources Issued by the Department of Labor

By Kelly Trainer Policky, Employment Practices Manager

According to the National Institute of Health, nearly one in five U.S. adults live with mental illness. Employees coping with mental illness may face barriers to getting help due to social stigma or a lack of available resources. In 2020, only 46.2 percent of adults with mental illness received mental health services. In May, as National Mental Health Awareness Month drew to a close, the Wage and Hour Division (WHD) of the federal Department of Labor issued educational materials to aid employers in their compliance with the Family and Medical Leave Act (FMLA) when employees have a mental health-related need for FMLA leave. Those resources include the following:

In the recently issued guidance, the WHD explained that a mental health condition can constitute a “serious health condition” under the FMLA when it requires either inpatient care or continuing treatment by a health care provider. The same is true under the California Family Rights Act (CFRA). California employers using these new federal resources should be mindful of their obligations under the CFRA as well, which is similar, but not identical to the FMLA. Eligible employees may be able to take up to 12 workweeks of leave, which can be taken continuously or intermittently, due to their own serious health condition or the serious health condition of a family member. The FMLA defines family member to include child, spouse, and parent. The CFRA defines family member to include spouse, domestic partner, parent, child of any age, grandparent, grandchild, and sibling.

In addition to providing employees with leave under the FMLA and/or CFRA, employers may also be required to provide reasonable accommodations to an applicant or employee who has a mental disability, which includes “having any mental or psychological disorder or condition that limits a major life activity.” [1] A reasonable accommodation is a modification or adjustment that is:

Effective in enabling an applicant with a disability to have an equal opportunity to be considered for a desired job; or
Effective in enabling an employee to perform the essential functions of the job the employee holds or desires; or
Effective in enabling an employee with a disability to enjoy equivalent benefits and privileges or employment as are enjoyed by similarly situated employees without disabilities. [2]

Examples of reasonable accommodation may include but are not limited to making existing facilities used by applicants and employees readily accessible to and usable by individuals with disabilities; allowing applicants or employees to bring assistive animals to the work site; transferring an employee to a more accessible worksite; providing assistive aids and services such as qualified readers or interpreters to an applicant or employee; job restructuring; providing a part-time or modified work schedule; permitting an alteration of when and/or how an essential function is performed; providing an adjustment or modification of examinations, training materials or policies; modifying an employer policy; modifying supervisory methods (e.g., dividing complex tasks into smaller parts); providing additional training; permitting an employee to work from home; providing a paid or unpaid leave for treatment and recovery, consistent with 2 CCR section 11068(c); and providing a reassignment to a vacant position, consistent with 2 CCR section 11068(d). [3]

In its blog post on the FMLA and mental health, the WHD noted that “all have a role to play in promoting mental-health friendly workplaces.” The WHD provided a link to the Campaign for Disability Employment for potential resources, and noted that employers and employees can contribute to the promotion of a mental-health friendly workplace in the following ways:

Organizational leadership can set the tone for a supportive, inclusive workplace.
Managers and supervisors can provide accommodations and promote assistance programs.
Co-workers can listen and be a source of support to colleagues.
Workers with mental health conditions can ask for what they need to perform their best.

Members needing assistance with managing an FMLA/CFRA leave of absence or a reasonable accommodation / interactive process situation are encouraged to contact their regional risk manager or the Authority’s employment hotline.

[1] 2 CCR § 11065(d)(1).

[2] 2 CCR § 11065(p)(1).

[3] 2 CCR § 11065(p)(2). Note the reasonableness of these examples is determined on a case-by-case basis.

New Website Accessibility Guidance a Welcomed Tool for Businesses and Agencies

By Alison D. Alpert, Partner, Best Best & Krieger LLP

DOJ Has Declared Enforcement of Website Accessibility is Priority

Originally published on April 21, 2022. Reprinted with permission from Best Best & Krieger LLP.

The U.S. Justice Department (DOJ) has issued web accessibility guidance under the Americans with Disabilities Act (ADA). While many courts have historically held that business and public agency websites are required to be accessible under respective provisions of the ADA, there are no enforceable standards on website accessibility, as there are under Section 508 for federal government websites. Because the DOJ has noted that enforcement of website accessibility is a priority, businesses and public agencies should immediately become familiar with this new guidance and ensure that all components of their websites are in compliance.

The new guidance explains how state and local governments (entities covered by ADA Title II) and businesses open to the public (entities covered by ADA Title III) can make sure their websites are accessible to people with disabilities in compliance with ADA. Specifically, it provides information about:

Barriers that inaccessible websites create for people with disabilities
When the ADA requires web content to be accessible
Helpful practices to make web content accessible
Additional details and resources

As the DOJ has stated, the guidance is intended to provide plain language and user-friendly explanations to ensure it is comprehensible for general readership – not just those with a legal or technical background. The guidance explains that businesses and governments can choose how to make their programs and services offered on their websites accessible, since there is no specific standard. However, it also confirms that the Web Content Accessibility Guidelines (WCAG) and Section 508 standards should still be considered helpful guidance, and entities should continue to reference these standards for the more technical and detailed guidance on website accessibility.

The full guidance is available here.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

Newsletter

Issue 124 – June 2022

NEWS: WORTHY

LEGISLATIVE UPDATE

RE: MEMBERS

RISK SOLUTIONS

COVERAGE MATTERS

LEGAL MATTERS

THE COURT REPORT