Officer Communications with Peer Support and Chaplains After a Critical Incident

Dealing with any Critical Incident is inherently traumatic.  The chemical reactions that an individual’s body undergoes coupled with the emotional stress immediately following an incident are both physically tolling and emotionally draining.  Conversations with Peer Support and/or a Departmental Chaplain are invaluable tools to help deal with trauma. Especially, in the immediate aftermath of a Critical Incident. However, it is important to note that not all communications with either a Chaplain or Peer Support are as privileged as communications with your attorney.  

Communications with Peer Support 

In short, a peace officers’ communications with peer support have a very limited privilege. These communications may be disclosed in the context of a criminal proceeding. Peer Support Privileges are outlined in Government Code Section 8669.4.  The code section is as follows:

(a) A law enforcement personnel, whether or not a party to an action, has a right to refuse to disclose, and to prevent another from disclosing, a confidential communication between the law enforcement personnel and a peer support team member made while the peer support team member was providing peer support services, or a confidential communication made to a crisis hotline or crisis referral service.

(b) Notwithstanding subdivision (a), a confidential communication may be disclosed under the following circumstances:

(1) To refer a law enforcement personnel to receive crisis referral services by a peer support team member.

(2) During a consultation between two peer support team members.

(3) If the peer support team member reasonably believes that disclosure is necessary to prevent death, substantial bodily harm, or commission of a crime.

(4)  If the law enforcement personnel expressly agrees in writing that the confidential communication may be disclosed.

(5) In a criminal proceeding.

(6) If otherwise required by law.

While 8669.4(a) grants law enforcement personnel the right to refuse to disclose confidential communications between themselves and a peer support team member made while obtaining peer support services, subsection (b)(5) states that a communication MAY be disclosed in a criminal proceeding, thus the right to refuse disclosure is not absolute. Government Code Section 8669.7 distinguishes criminal proceedings from civil, administrative, or arbitration proceedings by allowing a law enforcement official the right to prevent disclosure in those non-criminal proceedings. A peer support member may be compelled to disclose information in a criminal proceeding thus limiting the privilege.  Since many critical incidents contain the possibility of a criminal exposure, disclosure of any facts to a peer support member may not be privileged and can be used in a criminal trial. 

Lastly, in order for a communication to be confidential, 8669.6 requires that peer support members complete a training course or courses from the list provided within the code section. As long as the training course(s) is completed the communication made during peer support services is confidential (except of course for use in criminal proceedings). 

Communications with a Chaplain 

In contrast to Peer Support, communications with a Chaplain are subject to a broader privilege. However, this privilege only exist if certain criteria are met.  Importantly, the chaplain must be a member of the  “clergy.” California Evidence Code Section 1030 defines a “member of the clergy” [as] a priest, minister, religious practitioner, or similar functionary of the church or religious denomination, or religious organization.” If a chaplain is associated with the church, a religious denomination or religious organization he/she can be considered a member of the clergy. A leisurely affiliation or an affiliation by paper is not enough to denote a chaplain as clergy. In other words, an “ordained minister” of the local internet generally will not suffice or qualify as “clergy.”

Assuming the chaplain at issue is a “member of the clergy” in terms of Evidence Code Section 1030, the “penitential communication” privilege provided in Evidence Code Section 1032 would apply. Evidence Code Section 1032 defines the type of communication covered as a “penitential communication.” A penitential communication is defined as a one-on-one communication, outside of the presence of a third party, with a member of the clergy acting in their capacity with a duty to keep communications secret (CA Evid. Code §1032). A “penitent” officer has a privilege to refuse to disclose and prevent another from disclosing the communication if he or she claims the privilege and meets the requirements set forth above (CA Evid. Code §1031 &1033).  There is no requirement that the penitent and clergy be of the same faith. Evidence Code Section 1034 extends this privilege to the clergy member if he or she claims it. A law enforcement official and a chaplain will have a penitential communication where the chaplain is acting within their capacity and exercising their duties as a chaplain by engaging in the confidential communication. There cannot be others present during this communication and either party may exert the privilege. 

In sum, communications with peer support team members are only privileged insofar as they are not required for criminal proceedings. The clergy-penitent privilege has no limitation and the holder of the privilege can assert the privilege in any proceeding so long as the criteria are met and the privilege has not been waived. 

A determination of privilege can be cumbersome when dealing with a critical incident.  As your representative, Mastagni Holstedt can assist in making determinations as to whether a privilege exists with the members of your support staff and if there are any potential risks for liability.  

Filing a COVID-19 Workers’ Compensation Claim

The pandemic caused by the coronavirus disease (COVID-19) is impacting almost every aspect of Californian lives, including how we live and work.  Every cough, runny nose and even headache can make a person wonder if they have contracted this virus. To make matters worse our first responders and front-line medical personnel continue to perform their essential services to our communities while most Californians are under the protection of a public health directive to shelter in place.

While the general public shelters in place, our first responders face a mounting risk of exposure to COVID-19.  This public health crisis is transforming into an ever-expanding first responder crisis as peace officers, firefighters, and medical personnel contract the virus as they perform their essential services.   Given these facts, the logical question is what will happen to our first responders if and when they contract COVID-19. Does California have a plan for them?

Workers’ Compensation

The purpose of Workers’ Compensation is to provide monetary and medical benefits to people who become injured while working in the course and scope of their job duties. Part of the workers’ compensation process is to separate work related from non-work-related claims. In the context of a disease such as COVID-19, this becomes very difficult to do in practice.

Increased Risk to Exposure

However, there is a recognizable link between the nature of a first responder’s job and an increased risk of contracting the disease. First responders typically encounter a wide variety of exposures at work, including but not limited to bodily fluids, sneezing/coughing, and the unavoidable touching of unclean surfaces. Historically, when dealing with other injuries that first responders face a greater risk of suffering than the public, our State Legislature has acted to create a presumptive injury status for certain injuries. 

Presumptive Injuries

The presumption effectively shifts the burden of establishing causation.  This means the argument switches from the employee’s burden to establish that he suffered an industrial injury to a burden upon the employer.  The employer must rebut that the injury suffered was not from industrial exposure.  For example, there are presumptions for certain first responders who suffer pneumonia, meningitis, tuberculosis, etc.

At present, there is inadequate formal guidance from the State of California as to whether any Workers’ Compensation presumptions would apply to our first responders in the event of a confirmed COVID-19 infection.  In the absence of a presumption, the burden is on the injured first responder to prove that they were at a greater risk of exposure to COVID-19 at the time they contracted the illness.

Record of Exposure

If a first responder is exposed to an individual whom is believed to have the virus the first responder should attempt to establish a record of known or suspected exposure to COVID-19 at work. This evidence may include information as to the time of the exposure, the location of the exposure, the mechanism of transmission, if known, and any other knowledge or observation of COVID-19 symptomatology present at the workplace. This information must be communicated to the employer as well.

In addition to providing information about any potential exposure to COVID-19, the injured first responder must provide medical evidence that they have actually sustained an infection. The preference is medical testing. However, in the absence of test results, there will need to be a diagnosis from a licensed physician of a suspected COVID-19 case. In addition to the diagnosis itself, relevant medical information includes any medical evidence which tends to show that COVID-19 was accelerated, aggravated, or precipitated by job duties. 

The bottom line is that establishing a causal relationship generally requires a qualified physician's opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment. This opinion must be based on a complete factual and medical background. However, the ubiquity of COVID-19 presents unique challenges to the standard causation formula. How consistently can we prove the circumstance of work-related exposure to COVID-19 in an environment where the virus is known to be extremely contagious, relatively unseen, and transmitted by means we are only beginning to fully comprehend?  The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.

However, Mastagni Holstedt, APC is asserting that injuries caused by a COVID-19 exposure and/or infection should fall under one of the existing public safety presumptions.  The legislative intent behind the creation of a public safety presumptive injury in the California Labor Code is to offer additional protection to first responders who put their lives at risk for the public’s benefit. The risk they take while assisting the public through the COVID-19 pandemic is no different.

Creating a COVID-19 Presumption

It remains to be seen if Mastagni Holstedt will prevail in our arguments that one or more of the existing presumptions should be extended to cover injuries caused by COVID-19 because at the time the presumptions were codified COVID-19 did not exist.  However, there are separate efforts underway to create a new presumption in law.  Fire fighter and law enforcement advocates, such as the Peace Officer Research Association of California (“PORAC”) and the California Professional Fire Fighters ("CPF"), have urged California Governor Gavin Newsom and the State Legislature to create a presumptive injury for our first responders exposed to or inflected with COVID-19. These efforts are ongoing. 

The State Legislature is currently debating Assembly Bill No. 664 which seeks to define “injury” for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators to include being exposed to or contacting a communicable disease, including COVID-19.  The proposed bill would create conclusive presumption, as specified, that the injury arose out of and in the course of employment.

The fear is, without a presumption, we simply will not have the tools needed to consistently provide benefits to our first responders despite their daily heroism on the front lines of this disease.  With that said, at Mastagni Holstedt we continue to represent our first responders and will vigorously litigate on their behalf for an extension of the existing presumptive injuries.

If you or someone you know needs help with this fight please contact Mastagni, Holstedt, A.P.C. for an advocate who supports what you do for our communities and who will fight this legal battle with you.

California Supreme Court Sets Oral Arguments for Pension Appeals

Today the California Supreme Court set oral arguments in the Alameda County Deputy Sheriff’s Association pending appeal, which is consolidated with several other employee organizations, challenging the constitutionality of the Public Employee Pension Reform Act (PEPRA) as it applied to certain plan members under County Employees Retirement Law of 1937 (CERL). 

Arguments will be heard on May 5, 2020, at 9:00 a.m. via  video or teleconference.  The case is captioned,  Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Assn. (Cal. 2018) 230 Cal.Rptr.3d 681.  The Alameda DSA is represented by Mastagni Hosltedt, APC, attorneys  David E. Mastagni and Isaac S. Stevens.

Listen NOW: Mastagni Holstedt's Brendan Rochford Interviewed By Ride Along Radio Regarding Need For COVID-19 Workers Compensation Presumption

On Thursday, Mastagni Holstedt's own Brandon Rochford was interviewed by Ride Along Radio. Listen to the interview below as Brendan outlines the need for legislation to ensure that COVID-19 becomes a presumptive injury under California's Worker Compensation System.