2300 River Plaza Drive, Sacramento, California 95833-3239 • (800) 753-9073
2300 River Plaza Drive, Sacramento, California 95833-3239 •
(800) 753-9073
Quotation or reproduction in whole or
part not permitted without express authorization.
In This Issue
Employee’s
Personal Physician Designation Form
Pre-Designation
of Personal Physician
New Laws Effective As Of Jan. 1, 2003
Sexual Assault Victim Leaves & Other Troublesome Laws
Binding Arbitration’s Constitution to Be Tested
Delano Area Organizing - a New Approach
Cal/OSHA Amends Tractor & Gas Welding Rules
Cal/OSHA Form 300A Must Be Posted in February
Employer
Liable For Injuries Caused By Employee While Driving Home Sick
Safety Sheet: LPG
Gas Heaters
Employee’s Personal Physician Designation Form
It was reported in the Jan. 2003 FELS Newsletter that starting this year, employers in California must give each new employee a form on which the employee may pre-designate a health-care provider to treat him or her for a work-related injury or illness.
While an employer must give each new employee a physician pre-designation form, the form does not have to be given to current employees. Nor must an employer orally tell employees about the form or encourage them to fill it out.
Where an employee does not pre-designate a health-care provider, the employer can choose the physician who will treat the employee during the first 30 days of treatment for a work-related injury.
Employers should document that they provided employees with the required information and form.
While workers' compensation carriers must provide their insureds with a pre-designation form, employers may use a form of their own choosing. Below is an alternative form. It allows an employee to pre-designate the company's physician instead of only the employee's personal physician. Also, it gives the employer authorization to verify that the employee's personal physician meets the requirements of Labor Code section 4600.
Pre-Designation of Personal Physician
Pursuant to California Labor Code (LC) §3551(b)(3) I, the undersigned, declare the
following:
In the event I incur a work-related injury or illness, I desire to be treated by:
A. ___ the company's designated physician or medical facility.
B. ___ my personal physician as noted below. (Note: LC §4600 specifies that a "personal physician" means your regular physician and surgeon, licensed pursuant to the California Business and Professions Code, who has previously directed your medical treatment and who retains your medical records, including your medical history.)
If B. above was marked, please complete this portion:
Personal physician information:
Physician's Name:
Address:
City, State, Zip:
Phone Number:
I authorize the company to verify that the above physician is my regular personal physician as defined by LC §4600. I authorize my personal physician to supply the company with information to establish my physician's status as my personal physician, and I release my physician from liability for any damage that may result from furnishing that information to the company.
Employee Name:
Employee Signature:
Date:
New Laws Effective As Of Jan. 1, 2003
Cal/OSHA Penalties Increased: Any employer who fails to report a fatal injury or the serious injury or illness of an employee to Cal/OSHA within eight hours of its occurrence now faces a minimum penalty of $5,000. Provisions of Assembly Bill (AB) 2837 include the substantial increase in penalties -- up from $500 -- for employers who don't report.
A serious injury or illness is defined as amputation of a member of the body, disfigurement, or in-patient hospitalization for more than 24 hours for other than observation. Employers must report the name and location of the injured person, the nature of the injury or illness, a description of the accident including its time and date, the employer's name, address and telephone number and other relevant information to the nearest Cal/OSHA office by phone or fax within eight hours.
AB 2837 also provides that an employer, officer, management official, or supervisor who knowingly fails to report a death to Cal/OSHA or knowingly induces another to do so is guilty of a misdemeanor and will face a penalty of up to one year in jail, a fine of up to $15,000, or both. If the violator is a corporation or a limited liability company, the fine could be up to $150,000. See the notice at http://www.dir.ca.gov/ DOSH/NoticeJan2003.html on Cal/OSHA’s Web site for details.
Workers’ compensation benefits: AB 749 provides the first increase in workers' compensation benefits for injured workers since July 1, 1996. It also contains a number of measures to reduce costs for employers and to improve the efficiency California’s workers' compensation system. Companion legislation, AB 486, contains primarily technical changes and corrections to the original legislation. Details of benefit increases are contained in a summary at http://www.dir.ca.gov/DWC/ AB749.htm on the Division of Workers’ Compensation Web site.
Mandatory mediation/Forced contracts: Senate Bill (SB) 1156 and AB 2596 provide a unique process under the Agricultural Labor Relations Act under which parties who cannot reach a collective-bargaining agreement (CBA) on their own may be compelled into mediation. The process is triggered by the filing with the Agricultural Labor Relations Board (ALRB) of a declaration that the parties have failed to reach a CBA and a request for an order directing the parties to mandatory mediation and conciliation of their issues. If, after mediation, they still cannot arrive at a CBA, the mediator drafts a CBA that will be binding on the parties, subject to very limited ALRB and court review. A more detailed summary of the new law is posted at www.fels.org/GovSignArb Law.htm on the FELS Web site.
California WARN Act: Under AB 2957, California employers with 75 or more employees who layoff, relocate, or terminate 50 or more workers at once must first give 60 days notice to affected employees, similar to the federal WARN Act. This bill further provides for civil penalties against an employer who fails to give the required notice. Employees who bring a civil action to enforce the provisions of this bill are, at the discretion of the court, entitled to recover attorney's fees. A more detailed summary of the new law was in the Nov. 2002 FELS Newsletter article California Enacts Its Own Version of the WARN Act, located at http://www.fels.org/news/ news0211.htm on the FELS Web site.
Discussing working conditions: AB 2895 made it illegal for employers to prohibit an employee from disclosing information about working conditions, or to discharge or in any other way discriminate against an employee in retaliation for having disclosed information about working conditions. This is an extension of existing law, which protects the right of employees to disclose information about wages.
Family sick leave: Existing law requires an employer who provides sick leave to employees to permit an employee to use sick leave to attend to an illness of a child, parent, spouse, or domestic partner. An employer is prohibited from retaliating against an employee who uses sick leave for this purpose.
SB 1471 provided that an absence-control policy that counts sick leave used to attend to an illness of a child, parent, spouse, or domestic partner as a basis for discipline, demotion, discharge, or suspension would result in a per se violation of the law, entitling an employee working under the policy to appropriate relief.
Access to payroll records: Prior law entitled employees to review their personnel records, but the only way for the Division of Labor Standards Enforcement (DLSE) to enforce the law was through a court injunction. With the passage of AB 2412, employers must allow current and former employees to review and copy their personnel records and, if they fail to do so within 21 calendar days of a request, they can be assessed a $750 penalty, which is paid to the requester.
Immigrant worker rights: Through SB 1818, the Legislature declared that all protections, rights, and remedies available under state law, except for reinstatement if prohibited by federal law, are available to individuals who have applied for employment or who are or have been employed in California regardless of their immigration status. The bill further declared that for the purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person's immigration status is irrelevant, and no inquiry shall be permitted into a person's immigration status, except when necessary to comply with federal immigration law. This bill lends strength to the Department of Industrial Relations and the DLSE’s longstanding enforcement policies.
Summaries of other legislation
related to the Department of Industrial Relations can be found at http://www.dir.ca.gov/ OD_pub/2002Summary.htm.
Sexual Assault Victim Leaves & Other Troublesome Laws
The California Legislature has once again demonstrated why it is good to be an employer in the Golden State.
Labor Code Sections 230 and 230.1: Employers are now required to grant special leave to sexual assault victims. These code sections had previously required employers of 25 or more employees to grant time off from work to victims of domestic abuse in order that the employees affected could seek medical treatment, counseling or to deal with legal issues arising from such violence. The code sections prohibited employers from taking adverse actions against employees who were victims of domestic abuse. These sections are now expanded to include victims of sexual abuse.
Labor Code Sections 232 & 234: Impose limitations on the ability of employers to count employee absences as a basis for discipline, demotion discharge or suspension. [My question: Does this mean attendance bonuses are prohibited___]
Code of Civil Procedure Sections 3351.1; 340.10 and 437: The statute of limitations for personal injury claims, which includes employment-related torts, is now extended from one to two years. These changes also increase the notice requirements for bringing motions for summary judgment in an effort to get more cases to trial and to plaintiff victories!
(Source: Wayne Hersh, Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone)
The following articles are provided by Ag Accent, a publication of the Agricultural Action Committee, Don Curlee, editor. Agricultural Action Committee is a membership organization dedicated to informing agricultural employers about farm-labor issues. Subscriptions/contributions are available at a suggested rate of $50 per year. For more information, write to P.O. Box 34, Clovis, CA 93613.
Binding Arbitration’s Constitution to Be Tested: While all the agricultural representatives involved in planning a legal test of the newly-enacted binding-arbitration provision in the Agricultural Labor Relations Act have remained silent, it is generally understood that a suit alleging constitutional illegality will be filed imminently.
The case for challenging the union-favoring legislation which established binding arbitration was made forcefully in the Dec. 27 issue of the Los Angeles Daily Journal, a legal newspaper. It was written by long-time labor attorney Joe Herman with attorneys Peter K. Stris and Jason H. Wilson.
It suggests that the binding arbitration principle and the law which makes it applicable are vulnerable in two important constitutional areas: due process and separation of power.
The attorneys write that the proposed modifications in Section 1164 of the ALRA give the arbitrators power to write new contracts. And that “work(s) a substantial interference with the property right, under almost any traditional criterion...”
They say: “Accordingly, Section 1164 can be upheld only if it provides procedural due process. It does not.” They specify that the right to notice, to present evidence and to judicial review are absent.
On the issue of separation of powers the three attorneys wrote: “Section 1164 is an impermissible delegation of legislative authority to private actors, violating separation-of-powers principles. (It) vests a private mediator with the ability to bind non-consenting parties.”
They explain that the arbitrator’s rulings affect employee-members of the bargaining unit who might not have voted for representation by the union, amounting to a “public” or legislative function. Because the legislation modifying Section 1164 does not require the arbitrator to apply “requisite,” “public interest” or “fair and equitable” standards, the board is required to approve such faulty contract provisions.
The attorneys conclude their analysis of the flawed legislation by writing: “Any attempt to graft direct government determination of the terms and conditions of employment onto a law promoting collective bargaining is bound to fail. The two cannot be reconciled. Either the graft will not take, or it will kill the tree.”
Coastal Berry Certified: The Agricultural Labor Relations Board certified the United Farm Workers (UFW) union on Dec. 27 to represent the employees of the Watsonville unit of Coastal Berry, following that union’s election victory there.
Because of its certification in 2002, the UFW and employer will have a year to negotiate a contract before the recently-enacted provisions for binding arbitration could be invoked. Further, the agreement entered between the UFW and Coastal Berry covering the employees in the employer’s Oxnard-area unit could be raised as a bar to mandatory arbitration.
The election occurred after employees filed a decertification petition to oust the Agricultural Workers Committee (Comité). The UFW intervened and won the right to represent the workers.
The employer filed no objection to the Watsonville election. An objection filed by Pete Maturino of the United Food and Commercial Workers Union in Salinas was withdrawn, clearing the way for certification. Maturino had overseen the business affairs of the now-defunct Comité.
Conjecture has been raised suggesting that Maturino bowed out of the election in return for the UFW’s withdrawal from active campaigning among Foster Farms employees in Livingston, who are represented by Maturino’s union.
Delano Area Organizing - a New Approach: The UFW’s Web site displays a job opening for an organizer to work in the Delano area. From the qualifications posted, it appears the person might focus an organizing campaign on home visits to workers, possibly without ever invoking the worksite-access regulation.
An election elsewhere in California agriculture was fomented recently due to home visits. The election was won easily by the union, and the employer had no evidence of campaigning or organizing until the election petition was filed.
From the beginning of the ALRA, it has been the position of seasoned labor attorneys that the access regulation is unnecessary because tried-and-true organizational techniques – such as home visits – are available to unions. For the past 27 years, the UFW has not emphasized such traditional organizing programs, either due to a lack of qualified personnel or for policy reasons.
Because the best way to avoid the new binding arbitration provisions of the ALRA is to avoid an election, employers are encouraged to offer employees good wage-and-benefit packages, fair treatment and hospitable work environments.
Cal/OSHA Amends Tractor & Gas Welding Rules
Cal/OSHA Standards Board has amended two General Industry Safety Orders (Title 8 of the California Code of Regulations) of interest to agricultural employers. They are §3441 (Agricultural Equipment) and §4794 (Gas Welding).
§3441. Operating Instructions and Safe Work Practices. This GISO has been amended to incorporate a "Safe Work Practices" that employers must review with equipment operators at initial assignment and at least annually thereafter. Here is the amended section of §3441:
(a) Operating Instructions and Safe Work Practices.
(1)
At the time of initial assignment and at least annually thereafter, the employer shall instruct every employee in the safe operation and servicing of all equipment with which the employee is, or will be involved including, instruction on the safe work practices and operating rules provided in subsection (a)(2). at least the following safe operating practices:(2) Agricultural equipment shall be operated in accordance with the following safe work practices and operating rules:
(1)
(A) Keep all guards in place when the machine is in operation;(2)
(B) Permit no riders on agricultural equipment other than persons required for instruction or assistance in machine operation;(3)
(C) Stop engine, disconnect the power source, and wait for all machine movement to stop before servicing, adjusting, cleaning, or unclogging the equipment, except where the machine must be running to be properly serviced or maintained, in which case the employer shall instruct employees as to all steps and procedures which are necessary to safely service or maintain the equipment shall be taken;(4)
(D) Make sure everyone is clear of machinery before starting the engine, engaging power, or operating the machine;(5)
(E) Lock out electrical power before performing maintenance or service on agricultural equipment. (See Article 3 of the Low-Voltage Electrical Safety Orders.)§4794. Gas Welding and Cutting Systems - Purpose. This GISO has been amended to incorporate the American National Standards Institute (ANSI)/American Welding Society standard A3.0-94 into §4794. Here is the amended standard §4794:
(a)
The following Group 10 orders are intended to shall apply to the installation and operation of all gas welding and cutting systems when used with, and cover all gases when used with and oxygen for welding, flame cutting, heating and heat treating operations and includes brazing and soldering. The definitions for brazing and soldering as contained in American National Standards Institute (ANSI)/American Welding Society (AWS) A3.0-94, Standard Welding Terms and Definitions are hereby incorporated by reference.(b) Where only a portion of a fuel gas system is to be used with oxygen for the welding, flame cutting, heating and heat treating operations specified in subsection (a), only that portion of the system need shall comply with these orders and that portion shall be separated from the main system by means of a suitable hydraulic back-pressure valve. These orders also govern the storage of calcium carbide and of gases used in these processes and the installation and operation of acetylene generating systems. (Title 24, T8-4794)
Cal/OSHA Form 300A Must Be Posted in February
The new Form 300A, Annual Summary of Work-Related Injuries and Illnesses, must be posted Feb. 1 through April 30 for the prior calendar year.
Every employer (except those covered under the state low-hazard exemption) with more than 10 employees at anytime during the prior year must display wherever notices to employees are customarily posted the totals from Log and Summary of Occupational Injuries and Illnesses (Cal/OSHA Form 300A).
Low-hazard industries are mostly service-type businesses, such as insurance, banking and real estate companies. Agriculture is not a low-hazard industry.
Employers must present or mail the annual summary to each employee who receives pay during the February through April posting period who does not normally report at least weekly to a location where the annual summary is posted for the establishment to which they are linked for recordkeeping purposes as described at Section 14300.30(b)(3).
An indexed copy of Cal/OSHA's California Code of Regulations, Title 8, Division 1, Chapter 7, Subchapter 1, Article 2, is posted on the FELS Web site (www.fels.org) under Subscriber Resources, Labor/Safety Aid & Links, Recordkeeping Cal/OSHA's New Regulation - FELS Indexed.
Employer Liable For Injuries Caused By Employee While Driving Home Sick
(Source:*
)
A new California appellate court decision has expanded an employer’s potential liability arising from an accident caused by an employee who was driving home after getting sick at work. This decision will have potential impact throughout a broad range of common workplace circumstances.
In this case, Bussard v. Minimed, Inc., the employer had its facilities treated by a pesticide company to get rid of bugs. The morning after the pesticide treatment, and employee began to feel ill after just a few hours of working in the facility. A supervisor asked the employee if she wanted to see the company doctor, but the employee declined, saying that she just wanted to go home. Another supervisor asked the employee if she felt well enough to drive herself home, and the employee said she did. On her way home, the employee ran into another vehicle, injuring a person in that car. The employee told the police who arrived on the scene that she felt light-headed and dizzy from the pesticides right before the accident.
The injured person sued the employee and the employer, alleging that the employer was vicariously liable for the accident under the doctrine of respondeat superior. The general rule of respondeat superior is that an employer is liable for any damages an employee causes while engaged within the course and scope of the employment, regardless of whether the employer itself was negligent in any regard. The rationale behind respondeat superior is that the employer should include the cost of foreseeable losses within the cost of doing business. A long line of case, however, had firmly established that an employee who was engaged in her daily commute to or from work was not within the course and scope of employment. That theory became known as the “going and coming” rule, as an exception to respondeat superior liability. The employer in this case argued that, pursuant to the going and coming rule, it was not liable to the injured person because the employee was commuting home from work. The lower court agreed with the employer.
On appeal, however, the appellate court noted that there are certain exceptions to the going and coming rule. One example the court cited is if an employee becomes intoxicated at an employer’s holiday party and injures somebody while driving home from the party. In such a case, the employer is liable because it is foreseeable that an employee who drinks at a work function might cause an accident on the way home. Applying that rationale to this case, the court found that because the employee had gotten ill as a direct result of being at work, and that illness was a causation in the accident, the employer should be liable to the injured person. The court held “That an employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such a startling or unusual event that we find a car accident on Hernandez’s commute home was unforeseeable.” Interestingly, the court specifically acknowledged that the employer itself was not negligent in any way, noting that the supervisors “diligently” inquired into the employee’s ability to drive home. Despite that, the court found that the employer should be held liable under respondeat superior.
What This Means For Employers
This case emphasizes the importance of evaluating an employee’s ability to safely make it home from work. In particular, anytime an employee seeks to leave work early, the employer should thoroughly evaluate the employee’s condition. Has the employee been injured? Is the employee in any distress? Does the employee appear to be alert and able to safely drive? If the employer has any reason to suspect that the employee might not be able to safely drive, it is imperative that someone else take the employee home, whether a supervisor drives, or a family member is called to pick the employee up. The extra effort in making sure that the employee gets home safely is well worth the potential risk of injury and possible liability.
*(The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360, or his or her own attorney, for individual responses to questions or concerns regarding any given situation.)