Clients and Friends:
The coronavirus and the reaction thereto has taken us into uncharted waters. One thing remains certain: Rains Lucia Stern St. Phalle & Silver is here for you. We have taken a number of proactive steps to ensure our ability to respond to issues that affect your safety, well-being and livelihood.
While our firm continues to monitor all aspects of coronavirus developments relative to public safety employees statewide, there are three distinct areas where we feel guidance from our firm is critical.
Labor and Member Rights Regarding Changes in Working Conditions, Compensation and Policies
Most law enforcement and fire agencies are already in the process of modifying working conditions. Some efforts are more extreme than others. Many employers are relying on emergency conditions to institute the changes. The changes being proposed by the agencies include, but are not limited to:
• Increased hours of work
• Implementation of extended shift hours
• Elimination of scheduled days off
• Cancellation of previously scheduled days off
• Cancellation of previously scheduled vacations
• Elimination of special assignments
• Adding or requiring out of class duties
• Changes in sick leave policies
For local government employees, the employer has a legal obligation to meet and confer over matters that are within the scope of bargaining before implementation. There’s also a requirement to meet and confer when a managerial policy is implemented to discuss the impacts of those policies. While there is an exception to the meet and confer requirements when the employer experiences an emergency, RLS will assist our clients to assert their meet and confer rights as soon as possible, and attempt to intervene at the outset of preliminary discussions.
While the law may provide some cover to employers who feel the need to enact immediate changes in working conditions as a result of the coronavirus pandemic, there can be no doubt that there is a good faith obligation to reach out to our employee organizations on matters that could put their members' health and safety at risk. Therefore, we are urging all of our association clients to contact our office to discuss the prospect of formally engaging their employer in discussions concerning changes in working conditions which have a material impact on the lives of their members.
Individual Member Legal Defense During the Pandemic
We anticipate that a number of factors will coalesce to make your jobs much busier and potentially more dangerous. For example, in our experience situations like the current crisis may well lead to significant increases in crime, which will in turn lead to an increase in critical incidents and serious uses of force. RLS is the largest law firm in the state providing legal defense services to first responders. We have offices and resources throughout California. We have attorneys who are cross-trained in multiple legal disciplines available 24 hours a day, every day.
In addition, your statutory and due process rights will never be compromised even under an emergency situation. Despite the general sense of urgency, we will ensure that our lawyers are available 24 hours a day to represent you in matters where you are being investigated and/or disciplined.
While the current pandemic continues to spread, RLS attorneys will represent individual members in any interrogation, adverse action or encounter during a critical incident. There is no emergency where RLS will permit an agency to avoid compliance with applicable timelines, procedures and required safeguards.
Workers' Compensation Rights for Pandemic Related Infections
Many of our clients have been exposed to the coronavirus and we fully expect that many more of you will be exposed. The nature of the “injury” and the legal remedies available to those who become infected are of great concern and focus of our attention.
Our workers’ compensation attorneys have been at the forefront of assessing the coronavirus infections and advising members on applicable remedies. Our efforts consider both the short and long term challenges associated with these cases.
While we work on long term solutions, in the short term, should a member miss work or require medical care due to an infection or exposure, the member should take the appropriate steps to protect their rights. Members should immediately file the proper notice to confirm the exposure or infection. We anticipate that employers will assert that the infection or exposure occurred away from the workplace so there may be factual disputes that will be litigated in the future. RLS will advise any individual member or association leader on how to document and file the claim.
Our workers’ compensation attorneys are actively tracking and monitoring coronavirus developments and how they can be litigated as covered workers’ compensation injuries. The statutory presumptions for work-related injuries do not by definition include the coronavirus, but exposure to coronavirus is inherent to the public safety duties performed by our clients and, in our opinion, should be treated as such. Because there is no clear legal basis for classifying coronavirus exposure or infection as work-related, we remain committed to aggressively asserting claims as work-related when the facts suggest the exposure or infection occurred on duty.
In anticipation that workers’ compensation claims may not provide immediate and needed relief for all who file, we are working to secure alternative benefits (including short term and other disability insurance coverage) to help mitigate the adverse impacts that exposures to coronavirus may have on your families while workers’ compensation claims are being processed.
Please feel free to reach out to our workers’ compensation attorneys to discuss the process by which we are attempting to protect our members' right to file claims.
NOTICE: Making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.
