18 minute read
What Should Businesses Tell Employees and Third Parties When an Employee Tests Positive for COVID-19?
by Ashley Parr
As COVID-19 continues to spread rapidly, it is becoming more likely that, at some point, every employer in the country will be faced with the question of how and when to communicate information regarding an employee who tests positive for the coronavirus. Because a COVID-19 diagnosis is considered confidential medical information under the Americans with Disabilities Act (“ADA”), employers are prohibited from sharing such information and should shield screening, testing, and diagnostic information as they would other confidential medical information. Nevertheless, employers must disclose enough information to at least satisfy the Occupational Safety and Health Administration’s (“OSHA”) general duty clause—the agency’s requirement that employers maintain a safe work environment.
An employee’s supervisor may be most likely to learn of an employee’s COVID-19 diagnosis. With that in mind, employers should train supervisors to report any disclosed positive COVID-19 test immediately to HR (or another designated contact), and supervisors should be reminded to maintain the confidentiality of any such report.
The following questions and answers will provide employers a starting point about employers’ disclosure and confidentiality obligations after learning of an employee’s positive COVID-19 test. Notably, the same confidentiality rules and guidance apply with respect to employees who self-report potential exposure to COVID-19 or who are treated as presumptive COVID-19 positive.
What information should the employer request from the employee who tested positive? The employer must take immediate steps to identify the scope of the risk in its workplace by requesting certain information from the employee who tested positive for COVID-19 (the Affected Employee). Ask the Affected Employee to provide a list of employees or other work-related third parties with whom the Affected Employee came into “close contact” during the 14-day period prior to the positive test (the Incubation Period). The CDC generally defines “close contact” as being within approximately six (6) feet of someone for at least fifteen (15) minutes, or having direct contact with infectious secretions from someone with a COVID-19 case (e.g., being coughed on). The employer should also request that the Affected Employee identify all areas within the workplace where he or she was physically present during the Incubation Period, which is generally estimated as approximately fourteen (14) days.
What should the employer tell other employees?
Most importantly, to avoid violating the ADA, the employer must not disclose the identity of the Affected Employee, or anything specific about his or her medical condition or symptoms to others in the workplace. Similarly, no information that could be used to “identify” the Affected Employee without specifically identifying the name should also be kept confidential. The only exception applies to a very limited number of individuals who need the information (e.g., a designated individual who will interview the employee to obtain a list of people with whom the employee had contact in the workplace or a supervisor who needs information about the employee’s ability to work, and who may have access to other confidential medical information).
The employer should contact directly each co-worker identified by the Affected Employee and each co-worker who worked in any identified areas of the workplace and advise—without revealing the identity of the Affected Employee—that a person with whom he or she has been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. The employer may disclose when the Affected Employee was last in the workplace in order to provide co-workers a sense of how long to watch for symptoms, which can take up to 14 days to manifest. In addition to the employer’s specific instructions regarding work, the co-workers should be encouraged to self-isolate, monitor for symptoms, and to seek all medical care and testing that they feel may be appropriate.
Depending on the employer’s size and workplace logistics, the employer should also consider issuing a general notice to its workforce that an employee has tested positive for COVID-19. Any such notice should reassure employees that, unless the employee has been notified directly by the employer, it is not believed that the employee has been in close contact with or shared a common workspace with the infected employee.
What should an employer disclose to third parties such as customers/clients, vendors, and others?
While businesses are generally not obligated to disclose the existence of COVID-19 cases within their workforce to third parties such as customers/clients, vendors, or contractors, a business may choose to inform third parties that an employee has tested positive for COVID-19. Depending on the nature of the business, many businesses decide to disclose the positive COVID-19 cases within their workforce to specific individuals who may have come into close contact with the Affected Employee. Third parties appreciate the ability to make informed health decisions, and the disclosure allows the business the opportunity to also assure third parties that all precautionary measures recommended by the CDC have been implemented.
However, with the exception of a staffing agency/contractor who placed the Affected Employee in his or her current position, the ADA does not permit businesses to disclose the Affected Employee’s identity or other medical information to third parties. Similar to disclosure to co-workers, a business may share the date on which the Affected Employee last worked. n
Ashley Parr is an employment and labor law attorney in Nexsen Pruet’s Greenville office. In her practice, she counsels businesses and organizations on issues ranging from policy implementation to claims of discrimination. Learn more at www.nexsenpruet.com.
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L A W F I R M O F T H E M O N T H 2020 2020
Left to right: Jerusalem “Jay” Beligan, Associate; Scott Ritsema, Partner; Brian Chase, Partner; Shannon Barker, Legal Administrator and Gavin Long, Partner
A PERSONAL INJURY FIRM WITH A 99 PERCENT SUCCESS RATE EXPANDS ITS BRAND
by Dan Baldwin
“Although we are broadening the brand of the firm, I believe I’m still primarily known as ‘the auto defect guy,’” says Brian Chase, Managing Partner and Senior Trial Attorney at Bisnar Chase Personal Injury Attorneys. With more than 27 years of experience, Chase and his firm have earned a 99 percent success rate and have won more than $650 million for their clients. The firm was founded as Bisnar & Associates in 1978 and evolved into Bisnar Chase in 1998.
The “auto defect guy” by-name is more than appropriate. For example, he is currently nationally recognized for his work for numerous police officers and civilians in California, Louisiana, Texas and Florida who suffered carbon monoxide poisoning while driving their Ford Explorers/Police Interceptors. A design flaw in the exhaust system allowed the poisonous gas to seep in the cabin of those vehicles. Police officers are often in their vehicles ten to eleven hours a day. The cars are generally kept running because of lag time in restarting the computer system and other electronics. Continued exposure to carbon monoxide gas can lead to dizziness, burning eyes, nausea, passing out/crashing and serious illness. More than 3,000 complaints have been registered with the auto maker or the federal government.
Chase and his firm are at the forefront of the issue. “I was astounded when the National Highway Traffic Safety Administration’s investigation reported no injuries due to the defect. I knew that was wrong from my own cases. I called the administration, informed them of their error, and changed the direction of their investigation. NHTSA has now redoubled their efforts,” Chase says.
A firm believer in sharing what he has learned about the automobile industry, Chase is the author of two auto defectrelated books: Still Unsafe at Any Speed and The Second Collision.
“I really feel that what you put out, you get back, and I use that philosophy in all facets of my life. You give love you get love. In purely business terms, it’s the law of attraction—if you take care of your clients’ business, your clients will take care of your business,” he says.
Staging a Successful Career
At one time Chase considered an acting career, but a passion for the law ultimately decided his career path. Still, his creative abilities find a successful outlet in trial. “Being a trial attorney allows me to be a creative story teller and fulfill that creative need, but, more importantly, being a trial attorney allows me to fulfill my true passion and calling: Having my life’s work matter and having a positive substantive impact on other peoples’ lives,” Chase says. He actually put that in his law school application as the reason he wanted to go to law school. “It was as true then as it is now,” he says.
© Christopher TOOD Studios
Brian Chase, Partner and Shannon Barker, Legal Administrator
Chase was raised in a lower income family and a tough, low income neighborhood, which, with strong family support, prepared him for the rough and tumble world of personal injury law. He says, “You had to know how to take care of yourself. You needed street instincts. But I had a great supportive family, lots of support and love. I didn’t know I was poor at the time or even living in a not-so-nice neighborhood. I had the best childhood imaginable and wouldn’t trade it for anything.”
While attending Pepperdine School of Law he clerked for an insurance defense firm with offices in OC and LA in the summers, eventually receiving offers from each firm. After graduating in 1992 he chose to work at a plaintiff’s law firm, then known as Bisnar & Associates. Within weeks of being sworn in he was in his first fiveday jury trial where he won four times what the defense had offered prior to trial. He handled several trials during his first two years and has continued to do so. He has been a member of ABOTA for years.
“This was a near-perfect environment. From the beginning I wanted my life’s work to have a positive substantive impact on other peoples’ lives. I also wanted my career to be intellectually stimulating and challenging. I specifically went to law school to become a personal injury trial attorney. I didn’t just stumble upon it,” he says.
After working there for five years Chase approached Bisnar regarding a partnership. “Bisnar had built his law firm from scratch, he was a great businessman, an accomplished negotiator, he knew how to manage people, we shared a passion for doing the right thing by the clients. I knew that with my trial skills, my fire to grow the law firm, to do bigger cases and to serve more people, that together we could build something great. I proposed that he run the business and start marketing programs to non-attorneys, while I attended to running litigation and marketing to attorneys. From there we formed Bisnar Chase,” he says.
Bisnar Chase today has nine attorneys and 25 paralegals and support staff. Chase has and plans on continuing to expand the firm’s scope. One well-known example of their expansion is into mass torts and their effort of representing clients against Johnson & Johnson for their use of talcum powder in its baby powder products.
The carcinogenic danger of talcum has been wellknown for more than 100 years. Talcum powder is a mined product. Ninety-nine percent of what is in a
Gavin Long, Partner and Scott Ritsema, Partner
© Christopher TOOD Studios
bottle of Johnson’s Baby Powder is the substance mined directly from the ground. In the early days of that mining, 55-gallon drums of the material were labeled with warnings that the product could cause cancer. In the 1970s research indicated that talcum powder for commercial used was linked to ovarian cancer. Much like the carbon monoxide poisoning experienced by police officers in the Ford Explorer case, continuing use of the baby powder had devastating effects on women throughout the country.
J&J finally quit selling baby powder (talcum powder) in the United States within the last few months.
Other landmark cases Bisnar Chase has handled include:
Schreiber v. Estate of Kiser (Leading California Supreme Court case dealing with expert witness designations and the scope of percipient expert witness testimony); Hernandez v. State of California (Dealing with governmental design immunity and establishing that two of three elements are questions of fact for the jury to decide, not the court);
Martinez v Ford Motor Company (Leading auto products defect case dealing with forum non conveniens establishing certain circumstances when FNC grant is inappropriate); Romine v Johnson Controls (An auto products defect case affirming the sole use of the consumer expectation test for defect and dealing with and rejecting the component parts defense).
Chase says he was affected and motivated as a teenager when he heard of the Ford Pinto cases in which Ford’s in-house accounting people determined that it would be cheaper to pay an estimated $200,000 per person killed or injured by the product’s defects rather invest a few dollars to fix the Pinto’s gas tank. He says, “I am very passionate about helping people whose lives have been ruined or significantly altered by defective products. I see many corporations that consistently place profit over people and safety. That offends and angers me. Trial attorneys are the best check and balance against corporate greed.”
Micro-Managing the Client Experience
As the manager of his “staff of superstars,” Chase believes in delegating responsibility and accountability. “I like to delegate tasks to team members. I like them to have the autonomy to make their own decisions. I think that’s empowering to employees to do a good job, feel good about what they do, and create a better work environment,” he says.
When it comes to client care, he and his staff operate under a policy they call micro-managing the client experience. “We break down every contact we have with our clients to look at them from the client’s point of view to see how we can make our services better, more responsive, and more client friendly. It’s an ongoing process,” with much credit owing to Shannon Barker, the firm’s Administrator, Chase says.
This commitment has led to some interesting innovations. For example, in their auto defect cases the firm has become a mini-auto manufacturer. They perform their own testing on vehicles to prove defects and discover alternative, safer and economical designs. They have invested millions of dollars in testing vehicles for defects and testing fixes that the auto industry could have used to make their vehicles safer.
Taking care of a large volume of good people having bad experiences requires teamwork and Chase is proud of his entire team. “Every single person at the firm is critical to our success, from answering the phones and client intakes all the way through to settlement or trial. We all rely on each other to work as a team. Our philosophy, ‘teamwork makes the dream work.’” For this story he would like to highlight three key attorneys.
Scott Ritsema, who recently made partner, was heavily involved with Chase in trying the Romine Vs. Johsnson Controls, Inc. case and was instrumental in obtaining the $24.7 million verdict.
Gavin Long, who also recently made partner, earned an $11 million verdict last year against a Scientologybased rehabilitation facility in which their client hanged himself. “Gavin was instrumental in uncovering a lot of dirt on the rehab facility and in the rehabilitation industry generally,” Chase says.
Jerusalem “Jay” Beligan partners with Chase in the firm’s consumer and employment class action department. He was actively involved in the 9th Circuit published opinion, Sali v. Corona Regional Medical Center, which affirmed its view that evidence need not be admissible at the class certification stage and stating that inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification.
Maintaining Balance Is a Personal Matter
Battling large corporations and organizations with virtually unlimited resources is, obviously, a stressful way to earn a living. Chase keeps matters in balance by leading a happy and successful personal life.
© Christopher TOOD Studios
He has a son and daughter. His daughter Cody lives in Los Angeles and is in the fashion industry and doing music on the side. Lee is in college studying political sociology. He also married his wife Andrea last year in the South of France.
Chase enjoys spending time with his family and also enjoys golf and plays on a course near his home as often as possible or out at his place in La Quinta. He finds playing the guitar a great way to unwind. He’s been an avid surfer since the ’70s and enjoys traveling to explore historical sites and fascinating places.
“To be truly successful in your professional and your personal life it’s essential that you do something you enjoy, with a purpose, for a cause, something bigger than you and do it with passion. Make your life’s work matter,” Chase says. n
Contact Brian D. Chase Bisnar Chase 1301 Dove Street, Suite 120 949-752-2999 Newport Beach, CA 92660 www.bestattorney.com
EXPERIENCE
EDUCATION • California State University, Long Beach, B.A., 1989 • Pepperdine University School of Law, J.D., 1992 HONORS AND AWARDS • Former Trial Lawyer of the Year Nominee, CAALA • Two time Trial Lawyer of the Year for
Products Liability OCTLA • Trial Attorney of the Year, CAOC • 2020 Top 1% by the Natl. Assoc. of
Distinguished Counsel • 2020 Litigator of the Year by the AIOTL • 2020 Top Plaintiff Lawyer, Daily Journal • 2019 Lawyer of the Year • 2019 America’s Top 100 Attorneys • 2017 Top 1% by the Natl. Assoc. of
Distinguished Counsel • 2017 Top 100 High Stakes Litigator • 2016 Top 10% Lawyers of Distinction • 2014–2020 Best Lawyers • 2015 NADC Top One Percent Lawyers • 2013 Top Attorney in O.C. Award • 2008–2020 SuperLawyer • Since 2007–Top 100 Trial Lawyers in
America, ATLA • California Supreme Court and Appellate
Court case winner • Top 50 Orange County Lawyers, SuperLawyers
PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS • Former CAOC President • Former OCTLA President • Member of the American Institute of Legal
Advocates 2020 • Board Member of the Brain Society of California • 2019 Top 10 National Trial Lawyer High
Stakes Litigator • Prestigious Member of the $500M Club • 2019 Top 1% by the Natl. Assoc. of
Distinguished Counsel • 2019 Million Dollar Advocate • Past President of Orange County Trial
Lawyers Assoc.
ADDITIONAL PERSONAL ACCOMPLISHMENTS • Author, Still Unsafe At Any Speed • Author, The Second Collision • Author of numerous legal publication articles • National Speaker on Personal Injury and
Product Defect Law • Executive Committee Member of the Joint
Coordinated Consolidated Proceedings group
Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon
Jan M. Eckermann, MD, FAANS is a boardcertified neurosurgeon with over 10 years of experience in managing complex neurosurgical patients.
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