The Marin Lawyer September 2021 by Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER September 2021 Editor Robert Rosborough Guest Editors Emily Charley, Kristine Cirby, Ann Munene Creative Director Kiersten Ross

2021 Officers President J. Timothy Nardell President Elect Robert Rosborough Secretary Scott Buell Treasurer Ahtossa Fullerton Past President Susan Feder 5 Year Past President Joel Gumbiner Board of Directors 2021 Directors Habib Bentaleb Michael Chaput Sarah Léger G. Kelley Reid 2022 Directors Emily Charley Kristine Cirby Christopher Locke Ann Munene Karthik Raju 2023 Directors Chelsea Heaney Valerie Kushel Thomas McCallister Thomas (Tom) McInerney Mary Sackett Executive Director Mee Mee Wong Communications Director Kiersten Ross Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2021. All Rights Reserved.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

CONTENTS 5 | Editor’s Introduction: When an Apple a Day Is Not Enough ROBERT ROSBOROUGH 8 | President’s Message: Meet Laura McMahon, Pro Bono Manager of Legal Aid of Marin J. TIMOTHY NARDELL 9 | COVID-19 Vaccines and the Workplace CARI COHORN 14 | Employer COVID-19 Vaccination Programs DIANE MARIE O'MALLEY AND SANDRA L. RAPPAPORT 18 | Vaccine Requirements and COVID-19: How Will They Affect Worker’s Compensation? CYNTHIA MORENO 20 | The FASTER Act: What Companies Need to Know About the New Food Allergy Law KELLY MATAYOSHI AND MARYJO LOPEZ 24 | Nonprofit Profile: Ritter Center – Housing is Healthcare THE MARIN LAWYER

26 | Webinar Recap: MCBA Welcomes Back Congressman Huffman to Discuss Climate Change and Congressional News THE MARIN LAWYER 30 | What’s Happening at the Marin County Law Library? LAURIE VAALA-OLSEN 33 | MCBA Profile: Angela Nicholson KRIS CIRBY 36 | Upcoming Events

39 | New Members THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

EDITOR’S INTRODUCTION When an Apple a Day Is Not Enough ROBERT ROSBOROUGH

Ten years ago, would you have guessed that public health law would be a hot topic now? (Or election law, for that matter?) As much as the Affordable Care Act has withstood repeated assaults since its passage, the realm of

public health law had remained something of an obscure redoubt. No longer. Since the start of the pandemic, the Marin Lawyer has covered some of the attendant legal issues and we continue to do so with this issue that brings you updates on health regulation. We start with two articles on a topic much in the headlines of late: vaccination and the workplace. Returning contributor Cari Cohorn gives us a broad overview of the law regulating vaccine mandates in the workplace, including alternatives to mandates, confidentiality and required exemptions. Di-

now, we can expect more changes in food allergy laws. If you are not familiar with the Ritter Center, be sure to read our nonprofit profile to learn how connected housing is to health even in normal times but especially with COVID-19.

ane Marie O’Malley and Sandra Rappaport give us a quick history of the caselaw on vac-

Marin County Law Library Director Laurie Vaala-Olsen reports that the library is ap-

cine mandates and then explore in more depth the EEOC’s recent guidance on the is-

proaching normal operations but two of its major programs take place via Zoom, includ-

sues stemming from workplace vaccine man-

ing Lawyers in the Library. Lawyers in the Li-

dates. A short article from Cynthia Moreno educates us that COVID-19 can be an occu-

brary is celebrating its five-year anniversary and if you have not yet volunteered for this

pational injury and a cause for worker’s compensation.

program, I encourage you to see how rewarding it is and how convenient to do with Zoom.

Moving beyond the realm of COVID-19, Kelly

Read Laurie’s article to see how easy it is to sign up.

Matayoshi and MaryJo Lopez inform us about the FASTER Act and that not only will

we be seeing “sesame” on food allergy labels

MCBA board member Kris Cirby (who is be-

ing honored at next week’s MTLA Annual

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

Judges’ Dinner!) interviewed Assistant Coun-

flect how critical the numerous pro bono vol-

ty Administrator Angela Nicholson. Read Kris’ interview to learn about Angela and her

unteers are—many from MCBA’s membership—to the success of LAM’s mission. I have

role in Marin’s pandemic response. And if you missed Congressman Jared Huffman’s con-

been volunteering through LAM and Vivalon with Marin’s seniors for a number of years

versation with MCBA during last week’s general membership meeting, we recap the many

and find it deeply rewarding. If you don’t already count yourself as one of LAM’s volun-

important topics covered, from the infrastructure bills to fires to drought and climate

teers, I encourage you to get in touch with Laura and see what pro bono opportunities

change more broadly.

suit your expertise and desires.

Finally, I encourage everyone to watch MCBA

View this article at Marinbar.org

President Tim Nardell’s video president’s message. In case you are not aware, Legal Aid of Marin has greatly expanded its capacity in the face of ever-expanding demand for its services, not least from the pandemic. Tim interviews Laura McMahon, LAM’s new pro

Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning

bono manager. Many of you know Laurie

and HOA practice. Rob teaches at USF’s Fromm Institute

Joyce, LAM’s wonderful former pro bono coordinator, a job she did part-time. The job has

(conflict resolution and history of science) and helps lawyers

now expanded to a full-time position to re-

EMAIL | WEBSITE

cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.

Thank You to the 2021 MCBA Program Sponsors SILVER

GOLD

Interested in sponsorship? Contact Mee Mee Wong . THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MCBA Membership Benefits A reminder of MCBA Member Benefits available to you. Be sure to check out the MCBA Member benefits offered through:

Cal Connect with select partners and discounts in Insurance, Financial Services, Business Services, Case Management and Travel!

Westlaw Research | A Thomson Reuters Company MCBA Members can receive up to 40% Discount on Westlaw Research Solutions. New Westlaw subscribers only. Contact Mike Mooney

And SwiftScan, an innovative document scanner app is free for one year if members sign up before October 15, 2021. Click here to sign up. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

PRESIDENT’S MESSAGE Meet Laura McMahon, Pro Bono Manager of Legal Aid of Marin J. TIMOTHY NARDELL

Legal Aid of Marin serves the most vulnerable

View the video to learn about the many vol-

citizens of Marin, citizens severely impacted by the pandemic. The need for legal help is

unteer opportunities available for MCBA members to give back to our community and

greater than ever and Legal Aid's ability to

get to know Laura.

deliver that help depends on its partnership with its pro bono volunteers. In this video message, MCBA President J. Timothy Nardell sits down with Laura McMahon, the new Pro Bono Manager of Legal Aid of Marin, to dis-

Get Involved: Legal Aid of Marin Marin Probono Network

cuss why pro bono work in Marin is so important, introduce you to Laura, and let you know how you can help.

View this article at Marinbar.org J. Timothy Nardell is a partner with Nardell,

“We believe that as a community, we must partner together to help. Legal Aid of Marin

Chitsaz & Associates in San Rafael. He runs a

is the only qualified civil legal services organization with an office in Marin. “

tortious injury cases. Tim can be reached by

- Laura McMahon

general civil litigation practice, focused on real estate and business disputes, and select email at tim@ncalegal.com or by phone at (415) 306-5560. EMAIL | WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

VACCINES IN THE WORKPLACE COVID-19 Vaccines and the Workplace CARI COHORN

More than 18 months into the COVID-19 pandemic, the virus continues to present challenging legal issues to employers struggling to balance the competing goals of resuming full business operations versus protecting the health and safety of employees, clients, and vendors. This article presents a broad overview of the current legal status of employer efforts to require or encourage vaccinations. Public and Private Employers Can Impose Mandates – Within Limits Various forms of workplace vaccination programs – ranging from true mandates (in which unvaccinated employees are disciplined or even terminated) to incentives and voluntary wellness programs focusing on vaccines – are becoming increasingly widespread. For example, President Biden recently issued execu-

to provide proof of vaccination. Still other private businesses, including many large law firms, have voluntarily adopted programs re-

tive orders requiring federal employees and contractors to get vaccinated and instructing

quiring or encouraging vaccinations among employees and others entering their offices.

the Occupational Safety and Health Administration to issue regulations requiring all em-

employers to set their own policies (subject to

ployers with more than 100 employees to mandate vaccines. The City and County of San Francisco already requires many of its employees, subject to certain exemptions, to be vaccinated and has ordered many private businesses – including restaurants, bars, theaters, and gyms – to require patrons and staff

For now, California state law allows private certain legal limitations) concerning vaccinations, masks, and other protections against COVID-19. Limitations on Mandates: Medical and Religious Exemptions The United States Department of Justice, the Equal Employment Opportunity Commission,

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

and California’s Department of Fair Employ-

cine, though this view is not universally ac-

ment and Housing have all issued guidance confirming that employers may lawfully re-

cepted either by religious leaders or by lawyers. For example, the Vatican has issued a

quire workers to get vaccinated as a condition of coming to the workplace. In fact, these

statement that the COVID-19 vaccines are morally acceptable, and several Catholic or-

and other agencies have emphasized employers’ legal duty to provide safe and healthy

ganizations, such as the Diocese of El Paso, Texas and the Diocese of Lexington, Ken-

workplaces. This duty must be balanced against the need to reasonably accommodate

tucky, have announced vaccine requirements for their personnel, allowing only medical –

employees needing legitimate medical or reli-

not religious – exemptions.

gious exemptions.

From a legal perspective, Erwin Chemerinsky,

Exemptions for Medical Condition or Disa-

Dean of UC Berkeley School of Law, persua-

bility

sively argued in an op-ed in the Los Angeles

Any employer implementing a vaccine mandate must allow medical exemptions for employees with underlying disabilities or other medical conditions that could make getting vaccinated unduly risky or hazardous.1 For example, some people have severe allergies to components of the vaccine, while others who are immunocompromised or have a history of Guillain-Barré syndrome or other ailments may legitimately be advised by their physicians not to take a COVID-19 vaccine. Anecdotal reports suggest that requests for medical exemptions have so far been quite

rare, though that is likely to change as more employers adopt vaccination policies. Exemption for Sincerely Held Religious Be-

Times that religious exemptions from government-enacted mandates are neither legally required nor are they good policy, since they could allow virtually anyone to opt out of vaccine mandates – though Dean Chemerinsky’s

analysis does not apply with equal force to mandates created by private employers in California. The United States Supreme Court has long held that federal laws prohibiting employment discrimination require that employers need only bear a de minimis cost when accommodating employees’ religious beliefs, and vaccine exemptions (at least arguably) could result in significant costs to employers. California law, by contrast, requires employers to accommodate an employee’s religious

liefs

belief unless the accommodation would require “significant” difficulty or expense.

Guidance from both the EEOC and DFEH em-

Explore Possible Accommodations

phasize the need for employers to allow exemptions from vaccination policies for workers whose sincerely held religious beliefs pro-

hibit them from receiving a COVID-19 vac-

When an employer has notice that an employee needs an accommodation, it must engage in a good-faith interactive process and

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

consider, with the employee, individualized

to the undue hardship analysis, the propor-

options that may allow the worker to perform his or her duties while also protecting others

tion of other employees who have received vaccines, the amount of contact the unvac-

in the workplace. Possible accommodations include, but are not limited to, remote work,

cinated employee is likely to have with others, and the extent to which the vaccination

altering the unvaccinated employee’s schedule such that he or she is present at the work-

status of those others (especially clients, guests, vendors, and other non-employees) is

place only when few (or no) other workers are there, or requiring the unvaccinated employ-

unknown should be assessed. With respect to whether a direct threat exists, the EEOC ad-

ee to wear personal protective equipment

vises employers to evaluate the duration of

and/or to undergo frequent testing. If the em-

the risk, the nature and severity of the poten-

ployee needs an accommodation for a temporary condition that makes a vaccine inadvisa-

tial harm, the likelihood that harm will occur, and the imminence of the potential harm. Alt-

ble, a leave of absence until the condition resolves may be an appropriate accommoda-

hough the analysis of these factors will likely evolve as circumstances related to the virus

tion. Note that the costs of accommodations, like any other costs related to an employer’s

continue to develop, the EEOC has confirmed that a determination than an unvaccinated

vaccination/testing policy, must be borne by the employer, not the employee.

person will expose others in the workplace to COVID-19 constitutes a direct threat.

There are two exceptions to the general rule

Alternatives to Vaccine Mandates

requiring employers to provide reasonable accommodations. First, employers do not have to offer accommodations that create an undue hardship. Second, employers need not accommodate an employee who poses a “direct threat” – i.e., a significant risk of substantial harm to their own or others’ health or

Several options for protecting workplace health and safety, short of vaccine mandates, are available to employers. Employers can lawfully take such steps as inquiring about any symptoms of COVID-19 an employee or

safety that cannot be reduced or eliminated by a reasonable accommodation. As always when determining whether certain accommodations are required, employers and their attorneys need to conduct a fact-specific analysis. The EEOC has provided guidance as to what factors need to be considered in connection with vaccination-related accommodations. As THE MARIN LAWYER An Official Publication of the Marin County Bar Association

guest may have, can take temperatures be-

advise that incentives should not be so large

fore employees enter the workplace, and can send home any employee with a fever or oth-

as to be “coercive” or discriminatory, neither caselaw nor administrative guidance provides

er symptoms. DFEH and EEOC agree that a COVID-symptomatic person is unable to per-

any real clarity as to how large an incentive is too large. Employers may gain some protec-

form essential duties in a manner that would not endanger the health or safety of others in

tions against allegations that their incentives are discriminatory by providing alternate

the workplace, even with reasonable accommodations. Employers can require anyone en-

ways for workers with medical or religious exemptions to earn the incentive, such as par-

tering the workplace to wear masks and/or

ticipating in a wellness program to help them

other personal protective equipment –

quit smoking or an exercise course.

though employers should be mindful of any reasonable accommodations that may be

Less clear is whether employers can penalize

needed with respect to PPE (such as providing modified gowns for an employee who uses

to get vaccinated, or to provide proof of vac-

a wheelchair). Employers can require employees to undergo viral testing to determine whether an employee currently has the COVID-19 virus but cannot require antibody

employees without exemptions for refusing cination. Delta Airlines recently announced it will begin charging unvaccinated employees on the company’s health plan a monthly surcharge of $200 – so litigation on the legality

testing.

of such penalties may be imminent. Even if legal, penalties may negatively impact employ-

Note that employers – not employees – must

ee morale and increase the likelihood of liti-

bear the cost of all required testing, PPE and

gation and/or administrative charges.

vaccination (if there is any out-of-pocket cost). Additionally, if employees have to travel off-site to get a required vaccine and/or test, they should be compensated for their time and for any travel expenses (e.g., mileage or public transit costs). No law prohibits employers from offering incentives to encourage employees to get vaccinated. Many employers are offering gift cards or extra vacation days to employees who provide proof of vaccinations, and some companies, such as Vanguard Financial Group, have offered cash bonuses of up to $1,000. Although many employment lawyers

Tricky Issues for Employers: Confidentiality and Retaliation It should go without saying – but due to widely circulating misinformation, needs to be said

– that neither the Health Insurance Portability and Accountability Act, the Genetic Information Nondiscrimination Act, nor any other law prohibits California employers or businesses from requiring employees or patrons to provide information about their vaccination status in order to continue employment or enter a business’s premises. While it is clearly legal for employers to obtain this

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

information, once obtained, the information

quest in good faith, he or she is protected. As

must be handled carefully. As before the pandemic, all employers must protect confiden-

with any tough employment law issue – call your lawyer!

tial medical information received from employees. Do not store medical information in

an employee’s personnel file, and make sure to store it in a location/manner in which access is limited to only those with a legitimate need.

The duty to protect confidential employee information must be balanced against the duty

Some lawyers and pundits argue that exemptions and reasonable accommodations only need to be made for employees with “disabilities” (as defined under the Americans with Disabilities Act and/or the Fair Employment and Housing Act), which may not include all employees for whom the vaccine might be contraindicated. Regardless whether that argument is correct, there could be other bases for liability against an employer who requires vaccines or testing without allowing medical exemptions. For instance, if a vaccine is a condition of employment, any injury from a vaccine would likely be covered by worker’s compensation.

to respond to health and safety risks in the workplace. For instance, when an employee

View this article at Marinbar.org

tests positive, an employer has a duty to report to public health entities and to protect other workers. According to the DFEH, an employer can notify employees that, for ex-

Cari Cohorn is an attorney with a proven track record of successfully representing clients through all phases of employment dis-

ample, an employee in a specific location test-

putes. Ms. Cohorn represents both employers

ed positive on a particular date – but cannot disclose the name or identity of the employee.

and employees, focusing her practice on providing strategic, cost-effective solutions to a variety of employment law matters. EMAIL | WEBSITE

It may be possible, or even easy, to determine the identity of an employee of a small employer based on this information. The many local public health reporting requirements and the EEOC guidance on “direct threats” will likely

MCBA MEMBERSHIP

be a viable defense to employers who disclose no more information than required. Finally, employers should be prepared for retaliation claims. Employees are protected from retaliation for engaging in “protected

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activity.” Protected activity includes opposing practices that an employee believes – cor-

Volunteer & Leadership Opportunities

rectly or incorrectly, in good faith – violates the law. Even if the employee requesting an

Professional Credibility

exemption or an accommodation has no legal basis for doing so, if he or she makes the reTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

VACCINE MANDATE Employer COVID-19 Vaccination Programs DIANE MARIE O'MALLEY AND SANDRA L. RAPPAPORT

THE VACCINE MANDATE LANDSCAPE

ments that employers must consider.

The landscape is evolving almost every day on

And in fact, the federal and many state gov-

the subject of mandatory vaccinations despite the fact that government mandates of

ernments have mandated vaccinations for their employees. On July 29, 2021, the Biden

vaccines are not new. In Jacobson v. Massachu-

Administration issued a fact sheet announc-

setts, 197 U.S. 11 (1905), the United States

ing further actions to strengthen its previous

Supreme Court upheld the authority of states to enforce compulsory vaccination laws. ("It is

mandates concerning vaccination of federal employees and federal contractors. In Cali-

within the police power of a State to enact a compulsory vaccination law, and it is for the

fornia, Governor Newsom ordered that state employees and health care workers must

legislature, and not for the courts, to determine in the first instance whether vaccination

show proof of vaccination unless exempted, and if exempted, get tested regularly.

is or is not the best mode for the prevention of smallpox and the protection of the public

In the Bay Area, health officials from a num-

health.")

ber of counties have also urged private employers to require vaccinations of their em-

Since the start of the COVID-19 pandemic, the Equal Employment Opportunity Commis-

ployees. At least one federal court has upheld

sion (EEOC) has issued guidance for employers on addressing COVID-19 in the work-

vaccination policy: In Bridges, et al v. Houston Methodist Hospital et al, Docket No. 4:21-cv-

place, adding guidance regarding vaccines in

01774 (S.D. Tex. June 12, 2021),

a private employer’s mandatory COVID-19

December 2020. On May 28, the EEOC updated its guidance (with a minor update following on June 28), permitting employers (including federal and state governments) to implement COVID-19 vaccine mandates, subject to certain exemptions. A disability or sincerely held religious belief that prevents vaccination are they only ex-

emptions to any vaccine requireTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

the court dismissed a challenge to the hospi-

19, subject to the reasonable accommodation

tal’s mandatory vaccination policy for employees that was brought on the grounds that

provisions of Title VII and the ADA and other EEO considerations such as disparate impact.

"currently available COVID-19 vaccines are experimental and dangerous" and that the

For example, offering voluntary vaccination only to certain groups of employees would

mandate violated public policy. In dismissing the complaint, the court referenced the

not be permissible under EEO laws. (K.10.) The EEOC also reminds employers that ac-

EEOC's statement that "employers can require employees be vaccinated against

commodating a disability includes pregnancyrelated disabilities. (K.13.)

COVID-19 subject to reasonable accommodation for employees with a disability or sincerely held religious beliefs that preclude vaccination."

K.2. The EEOC suggests the following as accommodations for employees not vaccinated due to valid exemptions: "an unvaccinated employee entering the workplace might wear

Employers may require all employees enter-

a face mask, work at a social distance from

ing the workplace to be vaccinated because

coworkers or non-employees, work a modi-

the EEOC has determined that COVID-19 in

fied shift, get periodic tests for COVID-19, be

the workplace poses a direct threat to co-

given the opportunity to telework, or finally,

workers, clients, customers and the public.

accept a reassignment."

The EEOC's recent guidance updates Section K—regarding vaccines—of its “What You

K.4. The EEOC confirms that an employee’s

Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” It elaborates on its earlier guidance (particularly regarding incentives under the ADA in K.16 and under the GINA in K.18) and as before does not take a position on the FDA's Emergency Use Authorizations (EUA) status. THE EEOC MAY 28TH GUIDANCE

COVID-19 vaccination is confidential medical information under the ADA. It also cautions that ADA restrictions on disability-related inquiries apply to the screening questions in any mandatory vaccine program that an employer or employer's agent administers. This means that the inquiry must be job related

and consistent with business necessity: The ADA’s restrictions apply to the screening questions that must be asked

Medical Information, Disability-Related Questions and Accommodations

immediately prior to administering the vaccine if the vaccine is administered by

K.1. The EEOC reiterated that the federal

the employer or its agent. An employer’s agent is an individual or entity having

EEO laws do not prevent an employer from requiring all employees physically entering

the workplace to be vaccinated for COVID-

the authority to act on behalf of, or at the direction of, the employer. (K.7.)

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

If the employer's program is voluntary, mean-

employees, who may be ineligible for a vac-

ing that employees can choose whether or not to get the COVID-19 vaccine from the

cination or whose vaccination status may be unknown, can impact the ADA undue

employer or its agent, "the employer does not have to show that the pre-vaccination screen-

hardship consideration. Employers may rely on CDC recommendations when de-

ing questions are job-related and consistent with business necessity. However, the em-

ciding whether an effective accommodation is available that would not pose an

ployee’s decision to answer the questions must be voluntary." (K.8.)

undue hardship. (K.6., emphasis added.) K.9. It is not a disability-related inquiry for an

K.5. Employers may require all employees en-

employer to ask employees whether they ob-

tering the workplace to be vaccinated even

tained a COVID-19 vaccine from a third par-

though it knows that some employees may

ty, because the employer is not asking a ques-

not get a vaccine because of a disability. In the

tion that is likely to disclose the existence of a

case of an employee with a disability prevent-

disability. "However, documentation or other

ing vaccination, the employer must demon-

confirmation of vaccination provided by the

strate the employee would be a direct threat

employee to the employer is medical infor-

to themselves or others through a two-step

mation about the employee and must be kept

inquiry: (1) does the non-vaccinated person

confidential."

pose a direct threat? and (2) if so, is there a reasonable accommodation that would re-

K.15. The EEOC confirms that an employer

duce or eliminate the threat?

requiring an employee to show documentation or other confirmation of vaccination

As before, in considering accommodations, the EEOC notes that an employer should con-

from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic

sider the overall vaccination rate:

information and, and, therefore, is not implicating Title II of the Genetic Information Non-

The ADA requires that employers offer an available accommodation if one exists

that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p). Employers are advised to consider all the options before denying an accommodation request. The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-

discrimination Act (GINA), which prohibits

genetic information discrimination in employment. Genetic information includes information about an individual's genetic tests, an individual's family members' genetic tests, and information about the manifestation of a disease or disorder in an individual's family members. Incentives

K. 16. An employer may provide incentives to

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

employees who can demonstrate that they

information.

received a COVID-19 vaccination from a third party because it is not a disability-

The employer may still offer an employee's

related question. It may also provide an incentive to employees for voluntarily receiving

cinated. (K.21.)

a vaccination that the employer or its agent administers. The Biden Administration's July 29, 2021 fact sheet encourages small employers to give incentives. However, for the em-

family member the opportunity to be vac-

The Network for Public Health Law has published a summary,

periodically updated, of vaccine-mandate litigation throughout the U.S.

View this article at Marinbar.org

ployer program, the EEOC points out the incentive should not be "so substantial as to be coercive," as a very large incentive would put pressure on employees to disclose medical information. (K.17.) These employee incentives are legal under GINA as long as the employer does not acquire genetic information. (K.18. and 19.)

Diane Marie O'Malley Diane is a senior partner in Hanson’s Labor and Employment Section. Her practice concentrates exclusively on representing employers mainly in the senior living and public transit industries. Diane has expertise in every aspect of the employment relationship and counsels clients on the liabilities that could arise from that relationship. Some of the areas in which Diane has experience in federal, state and agency forums include wrongful termination, discrimination, background

K. 20. Despite the go-ahead for employee in-

checks, battery, misrepresentation, retaliation, negligent

centives under GINA, the EEOC provides that an employer may not offer an incentive to an

hiring, harassment, privacy, and wage disputes. She also

employee to have that employee's family member vaccinated:

drafts policies and procedures to protect her clients from legal exposure. WEBSITE | EMAIL

Sandra L. Rappaport Sandy has been practic-

Providing such an incentive to an em-

ing labor and employment law for more than

ployee because a family member was vaccinated by the employer or its agent

twenty-five years, and is well versed in all

would require the vaccinator to ask the

cases involving wage and hour issues, dis-

family member the pre-vaccination medical screening questions, which include medical questions about the family member. Asking these medical questions

aspects of the practice. She has litigated on behalf of employers in federal and state court crimination and harassment claims, disputes over unfair competition and trade secrets, whistleblowing claims, and more. She frequently also handles litigation on behalf of employers in labor arbitrations and in proceedings before quasi -judicial agencies including the Equal Employment Oppor-

would lead to the employer’s receipt of genetic information in the form of family

tunity Commission, the California Department of Fair Em-

medical history of the employee. The regulations implementing Title II of GI-

partment of Labor. Her complex litigation experience is vast

NA prohibit employers from providing incentives in exchange for genetic

ployment and Housing, the Division of Labor Standards Enforcement, the National Labor Relations Board and the Deas well, having led teams in the successful defense of federal and state class actions involving overtime, on-call time, meal/rest breaks, and business expenses, to name a few. WEBSITE | EMAIL

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

WORKER’S COMPENSATION Vaccine Requirements and COVID-19: How Will They Affect Worker’s Compensation? CYNTHIA MORENO OF THE CALIFORNIA APPLICANTS’ ATTORNEYS ASSOCIATION

You have probably read the news: California Governor Gavin Newsom is requiring health care and state government workers to get vaccinated to protect themselves—and others—

ers to comply with local health directives and

against COVID-19. His reasoning is simple:

guidance concerning safely reopening busi-

COVID-19 cases are on the rise across Cali-

nesses to reduce the risk of exposure and mit-

fornia, and the delta variant poses another looming threat that could easily spiral out of

igate outbreaks in the workplace.

control.

Wind down to almost a year later and with the COVID-19 delta variant cases on the rise

Many are questioning the legality of the Governor’s actions. But others like worker’s com-

across California and the United States, Governor Newsom’s latest announcement that

pensation attorneys are wondering how this will play out in terms of helping essential

the vaccine will be required of health and state government workers—who have been essen-

workers who may become injured while on the job.

tial workers throughout the pandemic—has many lawyers questioning how this will im-

Last September, Governor Gavin Newsom

pact worker’s compensation.

signed SB 1159, which codified the COVID19 presumption created through an Execu-

Will workers file a claim for their injuries? Overall, will claims go up? Will claims go

tive Order (N-62-20) that stated an employee’s COVID-19 illness is an occupational inju-

down? Will they stay the same? Will a vaccine requirement vs. a mandate make a differ-

ry and therefore eligible for worker’s compensation benefits if certain criteria are met.

ence?

The law states that employees who get sick

According to the California Worker’s Compensation Institute, there have been a total of

while on the job due to COVID-19 can stay home and be provided worker’s compensa-

148,914 COVID-related claims made in the State of California to date. Of those, 148,222

tion benefits, thereby reducing the spread of the virus to others at their place of work and

were with injuries with a total of 1,032 deaths. It is apparent that COVID-19 has not

in the community. It also encourages employ-

disappeared and if the delta variant is any

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

indication of what is to come, employers must

prepare and be compliant with state mandates. One thing is certain: if COVID-19 cases continue to rise in California, workers must be protected, especially those who are essential and have kept working hard throughout the pandemic to keep our economy moving forward. This article is reprinted with CAAA’s kind permission.

View this article at Marinbar.org Since 1966, the California Applicants’ Attorneys Association has dedicated itself to helping Californians that get hurt on the job heal and get back to work. Its members represent thousands of injured workers every year and fight to better California's workforce. WEBSITE

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

FOOD ALLERGIES The FASTER Act: What Companies Need to Know About the New Food Allergy Law KELLY MATAYOSHI AND MARYJO LOPEZ

While the Food Allergy Safety, Treatment,

“big nine.” These nine ingredients are consid-

Education, and Research Act (FASTER Act)

ered the most dangerous due to the number

only makes a minor change to add sesame as a

of people who are allergic to them and the se-

major food allergen, it signals the government’s intent to closely examine food allergen

verity of the reactions they can produce.

restrictions and broaden their scope. The FASTER Act, signed into law on April 23, 2021, adds sesame to the Federal Food, Drug, and Cosmetic Act's list of major food allergens. Previously, “major food allergen” referred to eight ingredients: milk, egg, fish, Crustacean shellfish, tree nuts, wheat, peanuts, and soybeans [21 U.S.C. § 321(qq)]. Sesame is now part of this list, rounding out the

The effect of this change is most notable in how manufacturers label their products, as the Federal Food, Drug, and Cosmetic Act requires manufacturers to clearly label major food allergens. Starting on January 1, 2023, this requirement will apply to products that contain sesame in any form. According to the non-profit Food Allergy Research & Education, sesame can appear in undeclared ingredients such as flavors or spice blends. In

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

these situations, the FASTER Act would re-

than a week after FDA sent Whole Foods the

quire that sesame be called out and listed as a food allergen. Manufacturers can satisfy the

warning letter, a plaintiff filed a class action lawsuit in the Southern District of New York.

act’s labeling requirements in one of two ways:

The complaint cites extensively to the warning letter and demands injunctive relief. Plain-

1. including a statement “printed immediate-

tiffs sued under both federal and New York law, and the specific claims included breach of

ly after or adjacent to the list of ingredients” that includes the word “contains” followed by “the common or usual name of

the major food allergen.” [21 U.S.C. § 343 (w)(1)(A)]. 2. listing the major food allergen as an ingredient which, with certain exceptions, must be “followed in parentheses by the name of the food source from which the major food allergen is derived.” [21 U.S.C. § 343 (w)(1)(B)].

Manufacturers who do not comply with these requirements open themselves to government enforcement action and to civil liability. The U.S. Food and Drug Administration (FDA) regularly issues warning letters to food manufacturers who do not comply with this provision. For example, in a December 2020 warning letter to Whole Foods, FDA stated that it had determined that Whole

Foods had “engaged in a pattern of receiving and offering for sale misbranded food products.” FDA warned Whole Foods that “failure to promptly correct these violations” could result in FDA taking “enforcement action,”

express warranty and implied warranty of merchantability, negligent misrepresentation, fraud, and unjust enrichment. To avoid these costly enforcement and civil actions, manufacturers should carefully examine their ingredients and labels to ensure compliance with this statute. However, adding sesame as a major food allergen appears to be just the beginning of changes to food allergy laws. The FASTER Act requires the Secretary of Health and Human

Services to submit a report with recommendations for the “timely, transparent, and evidence-based modification of the definition of ‘major food allergen’” in the Federal Food, Drug, and Cosmetic Act. The Secretary must also provide recommendations about scientific criteria (such as “the prevalence or severity of allergic reactions” to an ingredient) that would be required to add the ingredient to the list of major food allergens as well as recommendations about “opportunities for stakeholder engagement and comment.” This direction to Health and Human Services to

including “seizure and/or injunction.”

evaluate further changes to the definition of “major food allergen” and the standards to

In addition to federal government enforcement action, failure to comply with food label-

qualify as one strongly suggests additional foods will be added to this list moving for-

ing laws may also lead to civil lawsuits. Less

ward, although it does not provide any insight

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

into what foods these might be.

cal challenge. It is likely that manufacturers

The regulatory frameworks of other coun-

are already listing other ingredients in compliance with the Federal Food, Drug, and Cos-

tries could provide some insight into this question. The EU, for example, currently requires 14 ingredients to be labeled as major allergens, including mustard; celery; cereal containing gluten; lupin (a legume seed); and mollusks. Canada also includes mustard and mollusks in its list of major allergens. The U.S.

followed the EU and Canada by including sesame in its allergen list—we can expect that it might do the same with some of the other in-

metic Act and will only need to modify the labels to include sesame and any other ingredient that may be added to the major food allergens list. However, manufacturers should closely track the Health and Human Services’ report that is likely to suggest additional changes to food allergen laws to keep ahead of new developments in this rapidly evolving area of law.

gredients these regulatory agencies consider to be major allergens. Mustard seeds, for example, could be a likely next addition—it is a major food allergen in both the EU and Cana-

This article previously appeared in Food Safety magazine and is reprinted here with the kind permission of the authors.

da, and the American College of Allergy, Asth-

View this article at Marinbar.org

ma, and Immunology considers it a common

allergy trigger.

Kelly Matayoshi is a litigation partner at Farella Braun + Martel and member of the firm's Consumer Products & Manufacturing Industry Group. Her practice focuses on products liability, contract disputes, breach of fiduciary duty, and employment disputes. EMAIL | WEBSITE MaryJo Lopez is a litigation associate at Farella with a focus on business litigation and wine industry matters. EMAIL | WEBSITE

For most manufacturers, the addition of sesame or any other ingredient to the major food allergen list will not present much of a logistiTHE MARIN LAWYER An Official Publication of the Marin County Bar Association

Credit: Photo by Margot Duane Photography www.rittercenter.org

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

NONPROFIT PROFILE Ritter Center – Housing is Healthcare THE MARIN LAWYER

When a person does not have sufficient food, or cannot find safety while sleeping on the streets or in a vehicle, what is the likelihood they can follow medical advice, or even remember their next appointment if they are fortunate enough to have access to sporadic healthcare? Living on the streets is traumatic and the resulting impact on mental and physical health creates a self-perpetuating cycle of homelessness.

A Partnership Approach Ritter Center’s highly trained team combines clinical best practices with a whole person care approach in order to solve each person’s health, food, and housing needs. They have

At Ritter Center, they know that housing is

developed industry-leading knowledge and

literally medicine for their clients. The Cen-

built collaborative partnerships with county

ter’s mission is to improve the health and well

agencies, health partners, and like-minded or-

-being of people living in poverty in Marin by

ganizations to help people overcome barriers

providing culturally sensitive, easily accessi-

to aid, resulting in complete support solutions

ble, high-quality medical care and social ser-

that sustainably improve people’s lives.

vices with the goal of preventing and resolving homelessness.

“I can’t emphasize enough how important

Ritter Center began 40 years ago when a

partnerships are in grappling with big, public health issues like COVID-19 and the same

small number of Marin residents came together to address the fact that some in the

can be said about homelessness,” said Mark Shotwell, Ritter Center’s Executive Director.

community were not getting their basic needs met. They quickly realized the need was far

“No organization alone can solve these problems, but with partnerships, we can do mas-

greater than accessing food, and that access to medical, behavioral and housing resources

sive things to better the world we live in.”

was critical as well. They also realized that only a high quality of service would foster human dignity and forge relationships with patients and clients in a way that would have lasting impact.

Applying this Approach to COVID-19 Vaccination The pandemic has pushed many more local community members into poverty and unimaginable hardships. In April, Ritter Center

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

partnered with the Marin County Depart-

Qualified Health Center (FQHC) serving as a

ment of Public Health to help deliver COVID19 vaccine doses to underserved communi-

“Health Care for the Homeless” site. This enabled it to offer its services to all people, re-

ties in Marin, using a vaccine allocation from the Health Resources and Services Admin-

gardless of their ability to pay. The health center conducts all of Marin County’s Gen-

istration. This collaborative effort targeted Marin’s most vulnerable residents, including

eral Relief physical and mental work readiness exams and coordinates healthcare for

those living in public or low-income housing, those experiencing homelessness, migratory

the county’s medical respite beds. In addition to their primary health care and case manage-

or agricultural workers, those with limited

ment services, Ritter Center also directly pro-

English proficiency, and those receiving medi-

vides behavioral health services including

cal care from local community clinics, like Ritter Center. While success with vaccination

therapy, psychopharmacological medicine management, and substance use disorder

has meant this large-scale collaboration is no longer underway, Ritter Center continues to

counselling.

schedule vaccinations weekly at its health clinic and through its new mobile health van. To date, it has distributed more than 40,000 COVID-19 vaccine doses.

"If I have a medical issue, I can go to Ritter. I can also get food, and access mental health care and holiday programs. There is no other place quite like Ritter Center—it provides all

Expanding Care

of this in one place," says Elizabeth, a Ritter Center client and mother to two daughters.

In July, Ritter Center launched its new mobile

To learn more about Ritter Center, please vis-

health van, made possible by Kaiser Permanente and the Marin Department of Health

it rittercenter.org.

and Human Services, with the intention to bring primary medical care to unsheltered

View this article at Marinbar.org

residents who lack access to medical provid-

ers. Utilizing medical services as an outreach tool can create linkages with other important services, such as shelter and housing and access to benefit programs. Ritter Center’s philosophy is to treat the whole person as a way to create the best possible outcomes for longterm, permanent housing and improved quality-of-life. In 2013, Ritter Center became a Federally THE MARIN LAWYER An Official Publication of the Marin County Bar Association

WEBINAR RECAP MCBA Welcomes Back Congressman Huffman to Discuss Climate Change and Congressional News THE MARIN LAWYER

MCBA was honored to host Congressman Jared Huffman for our September 2021 general membership meeting. MCBA President Tim Nardell reminded the audience that Congressman Huffman spoke at our last inperson meeting, in January 2020. He hoped that the two appearances might act as something like bookends to the pandemic (although we know that we still have an uncertain road back to a new normal). President Nardell then handed off the program to MCBA program committee members Alex Vahdat and Matthew Lewis, who did an excellent job co-moderating a spirited conversation with Congressman Huffman. Federal Infrastructure Bills. The conversa-

Congressman Jared Huffman

includes childcare, broadband and climatechange preparation.

tion started with the hot topic of infrastructure bills— both the bipartisan infrastructure

Huffman reminded us that the administration package’s only chance of passage is through

bill (or “BIF”) that passed the Senate and the larger $3.5 trillion infrastructure package

the budget reconciliation process. Having the budget as the only available tool means hav-

that the Biden administration has proposed, which is currently under review in the House.

ing to achieve goals with money rather than mandates. He noted the many hurdles to pas-

Congressman Huffman made a number of ob-

sage and is “clear-eyed” about the bill’s pro-

servations about the bills. He noted that spending trillions on COVID has made it hard-

spects but is “not giving up.”

er to spend on infrastructure. Nonetheless, while there is a possibility that Congress could fail, he believes that his colleagues have a genuine desire to get something passed. In

his view, “infrastructure” in the 21st Century

As for the BIF, Huffman believes it does many important things, and there are infrastructure projects that have genuine bipartisan support, such as modernization of our electric grid. He is hopeful that even senators and

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

representatives from fossil fuel states will

misinformation about what the mismanage-

recognize the necessity of passage. That being said, he believes the bill contains plenty of

ment has been is rampant—and partisan. Huffman believes that the moratoriums on

problematic provisions, particularly those favoring the fossil fuel industry. It encourages

clearcutting forests are not the problem. The real problems are longstanding policies of fire

more highway development, continues subsidies for fossil fuel-based transportation, pro-

suppression, along with replanting projects that created dense, unhealthy forests. Huff-

motes the development of natural gas, and exempts some gas and oil projects from envi-

man noted that work is now being done to address the decades of forest mismanagement.

ronmental review under NEPA (the federal

California is putting billions towards vegeta-

version of CEQA).

tion management, and PG&E is trying to im-

The Biden administration also made commit-

prove its poor management. He believes that we will also see some federal support for bet-

ments that make working with the bill challenging for members of Congress. In particular, the administration made a commitment that the amounts pledged to certain kinds of infrastructure projects could not be changed. One way around that might be by creating

separate, additional programs in the $3.5 trillion package. September 27 is a hard deadline for a vote; and, for now, the fates of the BIF and the broader package are tied together. Some moderate House members are balking at the price tag of the latter and would like just the BIF. Some liberal members will not vote for

the BIF without getting the $3.5 trillion package. In Congressman Huffman’s view, pressure must be kept on both sides in order to get anything passed. Fires. The conversation then turned to a subject on virtually everyone’s mind: fire risk in the West. Huffman said that the extensive fires that we are now seeing are the culmination of decades of forest mismanagement, but

ter forest management policies, but it is going to take years to catch up from the mismanagement. For instance, Congressman Huffman said that he is part of a bipartisan effort to create a new program at NOAA to integrate the best technologies used to anticipate and detect fires. While the park ranger with a telescope in a tower is still the image many have of fire detection, many high-tech tools now exist. This bill attempts to bring them all together and provide a pilot program to develop the best methods. Water and Drought. Huffman recognized the seriousness of the drought conditions in our district. He pointed out that some locations in Northern California are already having to truck in their water supply, and Ft. Bragg is bringing in a portable desalinization unit. At the federal level, Huffman believes that significant resources to address water supply should be part of a final infrastructure package. Huffman said that he wants to challenge the

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

“20th-Century mindset” for fixing water

Climate Change More Broadly. Huffman be-

problems. He noted that Marin used to be a leading innovator in addressing water short-

lieves that in the near-term, most people will not see a dramatic change in lifestyle as we

ages but has been eclipsed by Southern California communities. Orange County is al-

adopt needed carbon-neutral technologies. A switch to an electric car is not a difficult

ready using recycled wastewater in its water supply, and San Diego has the largest desalini-

change. However, certain segments of society, such as the fossil fuel industry, will see dra-

zation plant in the Western Hemisphere. Other locations are using advanced water treat-

matic change.

ment and groundwater recharging. Congressman Huffman believes that different solutions will be required for different locations. He noted that while desalinization takes an enormous amount of energy and is not without environmental consequences, pumping water from Northern to Southern California uses as much energy as desalinization.

Huffman is working through the Natural Re-

sources Water, Oceans and Wildlife SubCommittee he heads to tackle a number of environmental problems, many climaterelated. One bill with a local focus is Huffman’s proposed KELP Act bill to tackle the loss of kelp forests. Many are aware that changes in water temperature have caused purple sea urchins to expand in numbers,

Huffman also believes that individual conser-

which has decimated kelp forests off the Cali-

vation incentives are necessary to address the drought, as well as beyond just the water

fornia coast. Huffman referred to it as our own version of coral bleaching. This problem

supply context, to create incentives for car-

is a good example of small changes in environ-

bon neutral and energy-saving technologies

mental conditions having massive ripple ef-

such as solar power, more energy efficient

fects.

windows, more efficient appliances, and so on. He is working on a bill to rescind an IRS decision that has caused water conservation rebates to be deemed taxable income, which has created a big disincentive to individual conservation. Huffman illustrated with a personal story how difficult it is for individuals to conserve water without incentives for more efficient and innovative systems: Marin has asked residents for a 40% voluntary reduction in water use; he has been working in his own home to achieve that goal and even with

enormous effort has only gotten to 37%.

Huffman also said that we have some wellmanaged, sustainable fisheries, but the underlying federal fisheries laws need moderni-

zation. Aside from the problem that much fishing on the high seas is done using exploited labor that verges into slavery, much of our seafood is not sustainable. Updated fisheries laws are needed to encourage sustainable fishing and address changes to ocean ecosystems that climate change is causing. Huffman also wants to end subsidies for fossil fuel extraction and mining on public lands. And he noted that And he noted that he has been

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

actively involved in trying to prevent a

pumping is driving delta smelt populations to

“modernization” of the entire fleet of postal service vehicles: the existing USPS leadership

extinction. Trump replaced these scientists with people who would give his desired opin-

appointed by the last President would give a sweetheart contract to a small military con-

ions. President Biden has said that he would reopen the regulatory process to ensure sci-

tractor for a fleet of gas guzzling vehicles, missing the opportunity to put millions of new

ence-based opinions. Huffman said that he is keeping an eye on the process to be certain

electric vehicles on the road.

scientists are making the decisions. Why is ranching allowed on Pt. Reyes public

lands? About two dozen multi-generation ranching families are allowed to ranch under a 1960s agreement that is part of the original plan creating Pt. Reyes National Seashore. Huffman said that he supports the original ranching commitment. He believes the ranchers serve an important role and are good stewards of a Audience Questions and Answers. How do we open people’s eyes to the reality of climate change and pandemics? Huffman said flat out that he does not know. When people outright deny the existence of something, it is not easy to get through to them. He said that the number one threat to health is the climate crisis even in the middle of a pandemic. He does not know how you address a segment of the population that does not trust any institutions but will listen to a random YouTuber proselytizing unproven cures for COVID. What can you do to unwind Salmon/Steelhead/ Delta Smelt biological opinions?

sustainable local food system, not the industrial agriculture bad guys some characterize them to be. Are 70% of emissions from 100 companies? Huffman does not know the answer. He pointed out that agriculture is a significant part of the emissions problem. He believes that we need to make a hard break from fossil fuels and that the fossil fuel industry is very threatened by the electrification of the transportation sector. Every time Congress tries to promote electric vehicles, the fossil fuel industry tries to add in eco-friendly-sounding alternatives, such as hydrogen fuel cells, which under existing technology are still reliant on fossil fuels.

Under the Endangered Species Act, EPA scientists have opined that increased delta THE MARIN LAWYER An Official Publication of the Marin County Bar Association

View this article at Marinbar.org 29

LAW LIBRARY What’s Happening at the Marin County Law Library? LAURIE VAALA-OLSEN

Patrons are slowly returning to the Marin County Law Library after our reopening to the public in May 2021. At present, we require all patrons to wear masks but have mostly returned to normal operations1. Shortly after COVID-19 caused the statewide shutdown in March 2020, the Law Library expanded the spectrum of legal resources available to the public from our website. This included access to the Westlaw and CEB OnLAW legal databases, as well as to numerous other legal resources. For example, the National Consumer Law Center publications

include information specifically about the impacts of COVID-19 on credit, mortgages, homeowners, and landlord/tenant matters

wide-scale shutdowns and whether businesses might seek governmental and/or insurance compensation because of shutdown orders.

and regarding the CARES Act. We added links

We also strove to quickly adapt our communi-

to many other resources regarding the im-

ty service programs—Lawyers in the Library

pacts of COVID-19, such as the California Lawyers Association Online Video Resources,

and First Thursdays at the Marin County Law Library—to the Zoom platform to continue

the American Bar Association webpage with information about COVID-19 and the deliv-

our assistance to Marinites reeling from the impacts of the coronavirus. Our Lawyers in

ery of legal services, and the Stanford Law

the Library program is celebrating five years

School COVID-19 Memo database, which provides searchable access to roughly 4,000

of service. If you are interested in a discrete, short-term volunteer opportunity that you

memoranda covering legal, regulatory, accounting, and governance issues raised by

can do from the comfort of your home or office, then this is the program for you. Can you

COVID-19. The memoranda also discuss social and political issues, including questions

spare two hours to help folks with their legal problems?

about the government’s authority to order

Lawyers in the Library is a collaborative

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

program between the Marin County Bar As-

appreciative.

sociation and the Marin County Law Library and offers free 20-minute consultations with

Another community service program we offer

an attorney to members of the public. While the meetings were initially held at the Law Li-

Library. It is the brainchild of Law Library

brary, they are currently offered on Zoom because of COVID-19. However, this makes volunteering a straightforward one-click endeavor because you simply join Zoom at the appointed time and meet with members of the public in a private breakout room. There is no further commitment.

is First Thursdays at the Marin County Law Trustee Denise Bashline and began in November 2019. Representatives of county departments, nonprofits, agencies, and other programs are invited to present information about who they are and what they do, fol-

lowed by a question-and-answer period. Initially, the presentations were made at the Law Library but had to be transferred to an

The sessions are held twice monthly on the

online platform after the coronavirus-

second and fourth Thursday of the month.

imposed shutdown. The online platform

Check the calendar of program dates and sign

turned out to be a stroke of good fortune for

up for a future event on Signup Genius. Typi-

it facilitated our ability to record the presen-

cal areas of the law in which people need as-

tations and place the videos on the Law Li-

sistance include landlord/tenant, foreclosure,

brary’s YouTube Channel for future viewing

estate planning and probate, employment, family, general civil and small claims. Volun-

by a wider audience.

teers have helped: tenants avoid eviction during the pandemic; employees assert their rights to unpaid wages; individuals push back when their insurance companies fail to timely process claims; and individuals understand the terms of a contract. The goal of the program is to help people help themselves by offering legal information and guidance. Sometimes this small assist is all a person needs to gain the confidence needed to proceed on their own. Over 110 Marin County attorneys have participated in the program since 2016, some on numerous occasions, and I would like to extend my sincere thanks for their generous volunteering. Public response to the pro-

gram has been overwhelmingly positive and

Presenters have included Marin Center for Independent Living, Marin Youth Court, STAR Court, Marin County District Attorney’s Office, Spahr Center, Homeward Bound, Vivalon, Marin Community Clinics, Center for Domestic Peace, San FranciscoMarin Food Bank, Canal Alliance, North Mar-

in Community Services, Family Caregiver Alliance, Marin Election Department, Women Helping All People, Marin County Public Defender’s Office, New Beginnings Law Center, Buckelew Programs – Suicide Prevention, and Family and Children’s Law Center. Unfortunately, the presentations made before the coronavirus shutdown were not recorded but we are developing a good video library of the ongoing ones.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

When asked about the program, Bashline

commented that “making people aware of available assistance is a part of our service to our law library patrons. Many are selfrepresented and finding the way to resources may be time consuming for those navigating multiple concerns. Offering these recorded presentations to patrons on demand by video offers a greater opportunity to access the information about the service.” Check out the videos for yourself on the Marin County Law Library YouTube Channel. Upcoming programs include a restorative justice program on October 7 and on November 4, a presentation from the Ritter Center. The registration links can be found on the Law Library’s website. 1

Our current operating hours are Monday through Thurs-

day, 8:30 a.m. to 6:00 p.m. and Friday, 8:30 a.m. to 12:00 noon. We are closed on Saturday and Sunday. We continue to follow the safety precautions in our Site-Specific Protection Plan and the current recommendations of the County Public Health Officer, the CDC, and of course, CalOSHA.

View this article at Marinbar.org Laurie Vaala-Olsen began working at the Marin County Law Library in 2012 and has served as the Director since 2015. She administers the Lawyers in the Library program on Zoom and First Thursdays at the Marin County Law Library. Prior to that, she worked for several law firms in San Francisco and Marin as a paralegal, primarily in the area of civil litigation. WEBSITE

VOLUNTEER SIGN UP

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MCBA PROFILE Angela Nicholson KRIS CIRBY

The Marin Lawyer recently spoke with Angela Nicholson, the Assistant County Administrator for Marin County, to learn more about her and the projects she is working on for the Marin County government. What is your current position with the County of Marin and what are your responsibilities? I am the Assistant County Administrator for the County of Marin. In this role, I served as the Emergency Operations Director for most of 2020; I am responsible for writing and implementing our internal strategic plan; I developed and am implementing our organizational performance management program, Compass, where we measure what matters most; I am leading the County Office of Equity team, focusing on establishing the County as an anti-racist, multicultural workforce; and I work with departments across the organization to coordinate and build a better Marin

County government. How did you wind up in that position? Right out of law school I went to work for the Administrative Office of the Courts shortly after the Trial Court Employment Protection and Governance Act was adopted. I worked with courts around the State to establish HR policies and negotiate new labor agreements.

Angela Nicholson, Assistant County Administrator, Marin County

It was an exciting time to work with courts throughout California. After the AOC, I came to the County as the Equal Employment Officer, conducting harassment and discrimination investigations. I spent the next seven years in HR, primarily focused on labor negotiations for the County. In 2014 I moved to my current role in the County Administrator’s Office. I took this role excited to grow my skills in budget and organizational management and have stayed because I have opportunities every day to make positive changes in my community and work across the organization to ensure that we are providing a high

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

level of service to our residents. Why did you decide to become a lawyer? I remember the essay I wrote to get into law school. It was all about my desire to serve. Lo-

strategy, theory, and emerging practice areas

and laws when I talk to colleagues. If you could pick a single highlight of your career, what would it be?

cal government has given me the opportunity

Oddly, I would say that responding to emer-

to be close to the problems and the solutions.

gencies, including COVID-19, has been a

Through creative problem solving with resi-

highlight of my career. Though it’s always fast

dents, we are more effective in service delivery. I was never drawn to litigation, but I still

-moving, with orders changing every day, our COVID-19 response gave me an opportunity

use the same skills of analysis, negotiation, argument, and liability assessment every day

to be engaged in our community with people who needed services most. I was also sur-

in my work.

rounded by talented County employees who worked day and night to build COVID pro-

Why did you choose to live in Marin? Marin is a beautiful place to live and a great place to raise a family. That being said, the lack of diversity in the “Marin Bubble” is challenging and doesn’t reflect the changing de-

mographics and diversity of perspective in our country. What do you love to do when you're not busy working? I love to read, bake, and de-clutter.

grams. Some of the programs we developed that I was most proud of included: the Roomkey program, providing hotel rooms for people experiencing homelessness; the COVID emergency assistance funding program, where we provided food and money to COVID-positive residents who would not have been able to quarantine without these resources; the childcare program for essential workers so that they could still go to work in

Tell us about your family.

service of our community; and the focus on disaggregated data that we did every day to

I am married to my husband Chad and we

ensure that services were getting into our

have a 12-year old, Bella, and a 15-year old, Corey. The kids keep us very active. We also have a Covid-dog, Bo. Why did you join MCBA? Although I don’t attend many events, I am always interested in connecting with other lawyers. I love the practice of law and I always learn things from those conversations. Legal

careers are so varied and I get excited about

most marginalized communities. It wasn’t enough to say that our vaccination rate was high. Instead, we looked at data for our LatinX and Black populations to make sure we were reaching those communities. Tell us about some of your volunteer activities and what motivates you. Most of my volunteering revolves around my

kids. Over the course of the pandemic, my

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

family was happy to make bagged lunches for

people experiencing homelessness (through St. Vincent de Paul). During a period when there was little contact with the world, that monthly activity helped to keep the family grounded. What is one thing someone would be surprised to know about you? I don’t love surprises. If you talk to me for too

long, you can probably hear my Minnesota accent. I was the middle child of five, which explains my love for mediation and negotiation to this day. View this article at Marinbar.org

The Marin Lawyer encourages our readers to also be our writers. If you have something you’d like to write about, get in touch with us. We also encourage our readers to be our critics. If there’s something you’d like to see (or not see) in the Marin Lawyer, let us know. If you’d like more articles on practical law firm topics, tell us. More book reviews? Let us know. All feedback is welcome.

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TUE | SEP 28 | 12:00-1:30P

THU | MAY 05 | 5:30-9:00P

BUSINESS LAW SECTION MEETING Practical Tips on Privacy Law & Cybersecurity

LIFETIME ACHIEVEMENT DINNER Honoring Gary T. Ragghianti

for General Business Practitioners

INFO & REGISTRATION >

INFO & REGISTRATION > Visit marinbar.org/events/calendar for our most up-to-date event information.

Thank you to our 2021

LEADERSHIP CIRCLE MEMBERS PETER KLEINBRODT, FREITAS LAW FIRM MONTY WHITE LLP SUSAN FEDER MEDIATION Visit www.marinbar.org to learn more about the Leadership Circle and how you can join. THE MARIN LAWYER An Official Publication of the Marin County Bar Association

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

ANNOUNCEMENT MCBA Board Nominations for Board of Directors 3 year term 2022-2025 At any time before October 1st of each calendar year, any Attorney Member may be nominated for any office to be filled, if such Member possesses the qualifications required in the Bylaws, by nomination in writing signed by at least ten Attorney Members of the Association and presented to the Secretary.

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Click here for application.

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Click here for more information on Board Director duties or contact Mee Mee Wong at mwong@marinbar.org.

THE MARIN LAWYER An Official Publication of the Marin County Bar Association

NEW MEMBERS Clayton Bellows Outer Point Advisory, Inc. Affiliate Non-Attorney Member

Scott Rahn RMO LLP Attorney Membership

Scott Cohen Rush Injury Law Attorney Membership

Adrienne Sawan Steven Adair MacDonald & Partners, P.C. Attorney Membership

Timothy Craig Affiliate Non-Attorney Member

Adrianna Siniawski Affiliate Attorney

Carolyn Firmin Law Office of Arnold H. Zippel Attorney Membership

Pierce Stanley Affiliate Student

Christopher Hayes Ragghianti Freitas LLP Attorney Membership

Elisha Yang Hanson Bridgett Attorney Membership

Chris Henry Estate Investment Realty Affiliate Non-Attorney Member Kieli Joplin Attorney Membership Jady Leung Phillips, Spallas & Angstadt LLP Attorney Membership Elizabeth Malay Collier Law Firm, LLP Attorney Membership

Laura McMahon Legal Aid of Marin Non-Profit THE MARIN LAWYER An Official Publication of the Marin County Bar Association

MCBA Member Listserv for Practice Areas MCBA Members can join the listservs by clicking HERE. Signing up with your name and email address adds you to the MCBA-wide listserv. You can then check the boxes to be added to listservs for your specific practice areas. Because the listservs are opt-in, MCBA must approve each signup before you can send or receive emails. Once you have been approved, use the following email addresses to email the listservs for your practice area(s): All MCBA mcba@groupvine.com ADR Section adr.mcba@groupvine.com Barristers Section barristers.mcba@groupvine.com Business Law Section business.mcba@groupvine.com Construction Law Section construction.mcba@groupvine.com Criminal Law Section criminal.mcba@groupvine.com Diversity Section diversity.mcba@groupvine.com Employment and Labor Law Section el.mcba@groupvine.com

Probate and Estate Planning Section ep.mcba@groupvine.com Mentor Group mentorgrp.mcba@groupvine.com Family Law Section familylaw.mcba@groupvine.com Intellectual Property Section ip.mcba@groupvine.com Litigation Section litigation.mcba@groupvine.com Probate Litigation Section probatelit.mcba@groupvine.com Real Property Section realproperty.mcba@groupvine.com Tax Law Section tax.mcba@groupvine.com

Note: The listservs are for MCBA Members only.

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THE MARIN LAWYER An Official Publication of the Marin County Bar Association

The Marin Lawyer September 2021

Articles inside

Editor’s Introduction: When an Apple a Day Is Not Enough