Safety Concerns Regarding COVID-19 Infection Could Lead to More Plaintiff-Friendly Juries

Employers may face juries that seek to hold them responsible if an employee contracts COVID-19, the trial consulting firm Dispute Dynamics suggests in its latest study.

Dispute Dynamics surveyed 321 individuals, inquiring about their most up-to-date attitudes in the context of being called as a potential juror during/following the pandemic.

46% of the participants indicated that an employer should be held responsible if an employee contracts coronavirus in the workplace, while 26% of participants disagreed. Further, 41% of participants agreed that an important function of juries is to “send a message” to corporations to improve their behavior, while only 17% disagreed.

The study indicates that juries place a premium on employee safety – and a considerable amount of the jury pool places that responsibility squarely on employers’ shoulders.

A gentle reminder that in the face of this ongoing situation, employers might want to consider an alternative: Arbitration.

Read the full study here.

Please join us for a complimentary Webinar on Employment-Related Claims in the Wake of COVID-19

By Tony Oncidi on June 22, 2020 Posted in Coronavirus, COVID-19

As businesses reopen and employers continue to adjust to the new reality created by the COVID-19 pandemic, it is critical to anticipate the types of employment-related claims that may arise.

On Tuesday, June 23, 2020, at 10:00 AM PDT, please join Proskauer’s Labor and Employment Department for a complimentary webinar as we provide an overview of current employment litigation trends that have emerged as a result of the pandemic, an outlook of the types of claims businesses should expect as they reinvent the workplace in the wake of COVID-19, and the proactive steps employers should take to reduce the risk of such claims.

Topics to be covered include: (1) OSHA and Other Workplace Safety Claims; (2) Negligence and Other Tort Claims; (3) Workers’ Compensation Claims and Exclusivity; and (4) Leave and Accommodation Claims.

Podcast: LGBT Workers Win Blockbuster Supreme Court Ruling

By Tony Oncidi on June 18, 2020 Posted in Supreme Court, Title VII

On Monday, the Supreme Court issued a landmark 6-3 ruling that held that an employer that fires someone for being gay or transgender violates Title VII of the Civil Rights Act.

Anthony Oncidi joins XpertHR Legal Editor David Weisenfeld to discuss the ruling’s significance, what it means for employers and what the next big workplace issue will be at the nation’s highest court.

Listen to the podcast or read the transcript here.

Mask On, Roll Camera: LA County Greenlights Hollywood Production Restart

By Tony Oncidi, Kate Gold and Philippe A. Lebel on June 12, 2020 Posted in Coronavirus, COVID-19, Entertainment Industry

As we previously reported, last week, Gov. Gavin Newsom and California’s State Public Health Officer cleared the music, film and television industry to resume work no earlier than this Friday, June 12, 2020, subject to county-by-county approval. On June 10, 2020, Los Angeles County Director of Public Health, Dr. Barbara Ferrer, announced that she was in agreement and authorized the resumption of film and television production in Los Angeles County, effective June 12, 2020.

Late yesterday, Dr. Ferrer issued an updated Health Officer Order that officially permits music, film and television production to resume in the nation’s largest entertainment production location. The Los Angeles County Department of Public Health also issued industry-specific reopening protocols for the music, film and television production industries. Among other things, the protocols:

Mandate designation of one or more COVID-19 compliance officers;
Require that all employees and visitors wear face coverings whenever they are in contact with others, unless the production activity does not allow it;
Require, for television and film production, regular, periodic testing of cast and crew, especially for those cast and crew that are involved in “high risk scenes requiring close contact without face coverings for extended periods;”
Require, for one-time productions operating on shorter schedules and smaller music recording sessions, all work be planned to eliminate close physical contact as much as possible;
Mandate remote or in-person (upon arrival) symptom checks before any employee enters the workplace, in addition to temperature checks at the worksite, if feasible;
Prohibit open calls, and encourage casting to be performed remotely or, if in-person, with appointments to limit crowds;
Require that any work requiring cast or crew to be closer than six feet to be as brief as possible and, during such periods, require that cast members “be as silent as possible to avoid spreading droplets through talking;”
Discourage scenes involving direct, prolonged contact between cast members (e.g., intimate scenes, fight scenes, etc.) or large crowds; and
Prohibit buffet-style craft services and any communal food or drinks.

In addition to the new County protocols, pursuant to the State Health Officer’s reopening authorization, music, film and television employers also must adhere to protocols agreed to by labor and management, which may encompass the recommendations set forth in the June 1, 2020 industry-wide labor management task force white paper. However, per the task force’s white paper, more specific protocols, including department-specific procedures, may need to be agreed upon between management and labor. We will continue to monitor this developing situation.

Time to Work Off the COVID 19 (lbs)… California Fitness Employers Reopen!

By Philippe A. Lebel and Danielle J. Moss on June 12, 2020 Posted in Coronavirus, COVID-19

California has long been considered one of the “capitals” of the fitness industry as it is home to thousands of gyms and boutique fitness studios. COVID-19 hit the state’s fitness industry particularly hard when shelter-in-place orders were announced in mid-March and, as we detailed in an article last month, now presents unique reopening challenges.

On June 5, 2020, Gov. Gavin Newsom announced that gyms and other fitness facilities may start to reopen as of today, June 12, 2020, subject to county-specific authorization. That same day, Gov. Newsom issued a series of comprehensive guidelines for the fitness industry. Among other things, the guidelines:

Require contactless temperature and/or symptom screening for all employees at the beginning of their shifts as well as of any vendors, contractors, or other workers entering the facility, or requires that individuals perform similar self-screening at-home;
Urge fitness employers to temperature and/or symptom screen customers and/or members upon arrival and request that they use hand sanitizer and wear face coverings to the extent possible;
Strongly encourage employers to mandate that employees wear face coverings when they are in close proximity to others, particularly if social distancing cannot be maintained in the gym or studio space;
Require fitness employers to provide appropriate personal protective equipment to staff;
Mandate that fitness businesses remind customers and/or members to wear face coverings and provide face coverings to those who arrive without them; and
Suggest employers consider whether disposable gloves may be helpful to supplement frequent handwashing.

Late yesterday, Los Angeles County Director of Public Health, Dr. Barbara Ferrer, issued a revised Health Officer Order permitting gyms and other fitness businesses to reopen as early as June 12th. To accompany the Order, the Los Angeles County Department of Public Health issued detailed reopening protocols for the fitness industry. Among other things, the protocols:

Require all members and customers to wear face coverings except when engaged in physical exercise or while training;
Limit “gym” occupancy to 50% or less;
Require modification of group classes to permit at least six feet of distance between patrons;
Suggest, for “high aerobic classes,” at least eight feet of social distance; and
Recommend the implementation of contactless payment and check-in systems, if feasible.

California’s second most populous metropolitan area, San Francisco, has yet to authorize the reopening of fitness businesses. Pursuant to the City’s and County’s current reopening plan, gyms and similar businesses are presently anticipated to reopen in Phase 3 of the reopening timeline, which is expected to begin sometime in mid-August.

The Wait is (Almost) Over! California Greenlights Resumption of Music, Film and Television Production

By Tony Oncidi, Kate Gold and Philippe A. Lebel on June 7, 2020 Posted in Coronavirus, COVID-19, Entertainment Industry

On Friday June 5, Gov. Newsom announced that California has authorized the music, film and television production industries to reopen on or after this coming Friday, June 12, 2020. The same day, Gov. Newsom announced the reopening of fitness facilities, day camps, and several other industries.

Although the State Public Health Officer had been issuing industry-specific reopening protocols, the Public Health Officer directed employers engaged in the music, film and television production industries to follow protocols agreed to by labor and management, which may encompass the guidelines published by the industry-wide labor-management safety committee task force on June 1, 2020. Those guidelines are discussed here. The Public Health Officer directed office-based employees in the entertainment industry to follow the general office reopening guidelines, previously published on the State’s reopening website.

Although the State has now authorized production to resume, music, film and television employers also will need to confirm that individual counties have authorized the resumption of operations. Los Angeles County, where the vast majority of production occurs, has yet to issue definitive guidance authorizing production to resume. Per the Governor’s reopening authorization, counties may issue stricter reopening guidelines but not more lenient ones.

Lights, Camera, PPE: Hollywood Guilds and Studios Take Action On Resuming Production

By Tony Oncidi, Kate Gold and Philippe A. Lebel on June 2, 2020 Posted in Coronavirus, COVID-19, Entertainment Industry

As we discussed in a guest column in The Hollywood Reporter in April, the entertainment industry faces unique challenges as it plans to resume operations. On May 20, 2020, California Governor Gavin Newsom suggested that California would release guidelines for reopening the entertainment industry by Memorial Day. However, to date, California’s Public Health Officer has not released any targeted guidance regarding reopening the industry.

The industry took charge and established an industry-wide labor-management safety committee task force, comprised of representatives from SAG-AFTRA, the Directors Guild of America, IATSE, a collection of studios and a number of other industry stakeholders (the “Task Force”). Yesterday, the Task Force released its Proposed Health and Safety Guidelines for Motion Picture, Television, and Streaming Production During the COVID-19 Pandemic (the “Guidelines”), available here.

The Guidelines stress the importance of scientific and medical expertise and rely on current guidance from the CDC and OSHA, as well as input from a medical consultant, the Chief Infection Prevention Officer at UCLA Health. Among key provisions, the Guidelines:

Require social distancing to the maximum extent possible, and provide specific suggestions relating to meetings, writers’ rooms, video village, audiences, casting, transportation and location scouting;
Stress the importance of regular, periodic COVID-19 testing;
Emphasize the need for flexible leave policies;
Encourage the use of universal symptom monitoring and daily personnel questionnaires;
Require that cast and crew be provided with appropriate personal protective equipment;
Describe hand washing protocols and require the provision of hand sanitizer;
Provide detailed cleaning protocols for facilities, vehicles and equipment; and
Mandate the designation of one or more dedicated COVID-19 Compliance Officer(s) to ensure adherence to safety protocols.

The Guidelines are designed to be used by government officials in creating safety protocols and, to that end, the Task Force shared them today with Governors of both New York and California. The Guidelines note, overall, that production may resume only upon the approval of the public health authorities based on the Roadmap to Recovery framework and that a staged reopening process may be necessary.