This Uber driver died of COVID-19. Proposition 22 will sway his family’s fate

Khaled Zayyid worked long days, driving as much as 80 hours a week for Uber, to provide for his family. When he died in a Riverside County hospital in July of complications from COVID-19, his wife and children were left without a breadwinner. Reeling from grief, they were left to grapple with the nation’s worst economic downturn since the Great Depression.

Then they applied to the state workers’ compensation program for death benefits — and got nothing.

The 56-year-old Zayyid had taken a hiatus from work when pandemic stay-at-home orders took effect. But expenses piled up. One morning in June, Zayyid packed a cooler with a few Diet Cokes and his diabetes medication and went back to driving full time.

He came home with stories of customers who jumped into the car bare-faced and refused when he offered masks from his personal stash. His children begged him to return to spending his days at their house in suburban Corona, but the family’s savings had dwindled and federal stimulus money had run out. He felt he had no choice.

About a week later he came home early, exhausted and sweating. Zayyid said he felt cold, he felt hot, he couldn’t breathe. He was buried on a sweltering day in July, relatives lined up in cars by the cemetery to pay their respects.

Through the state-administered workers’ compensation program — created to provide wage replacement and medical benefits to workers who suffer job-related injuries or illnesses — the family might be eligible for at least $320,000 in death benefits, according to a lawyer the Zayyids consulted. Given that his wife, Lamis, and the two of their children who are still teenagers had been dependent on Zayyid’s earnings, the lawyer said the family might even be eligible for additional hundreds of thousands of dollars over the next few years.

Still numb from the loss, the Zayyids filed a workers’ compensation claim. But the claim was shut down. A letter dated Sept. 30 said benefits were denied because Khaled Zayyid had been an independent contractor and never an Uber employee.

As part of Proposition 22, one of the highest-profile measures on Tuesday’s ballot, Californians will decide what should happen to families like the Zayyids.

Read about the 12 propositions on the ballot and see more coverage

Under the current state law known as Assembly Bill 5, Uber and other companies are supposed to designate the gig workers who are core to their business models as employees, not as independent contractors, and provide them with benefits — including access to workers’ compensation. Gig companies have resisted complying with the law, which is why Zayyid was still a contractor at the time of his death. Uber, Lyft, DoorDash and Instacart have jointly poured $200 million into the Yes on 22 campaign to secure an exemption from AB 5.

If Proposition 22 passes, the measure would cement gig workers’ status as independent contractors. It would compel companies to give them some additional benefits that mimic those offered to employees under California labor law but are weaker. The measure lays out plans for a private insurance policy to cover on-the-job injuries that in some ways replicates the state’s workers’ compensation system. However, experts say there are clear gaps, and the program will not offer protection that’s as comprehensive as workers’ compensation.

Much discussion around Proposition 22 has focused on whether employee status is compatible with the type of flexible schedules workers hope to keep, and on uncertainty over whether gig companies will cut jobs if they are forced to turn gig workers into employees. What is less understood are the nuances of the benefits Proposition 22 would confer.

“They’re trying to re-create the workers’ comp system, which is a couple hundred pages of law, in four or five paragraphs. You’re not going to get the same level of coverage, same level of benefits, or the same independent adjudication of the claim,” said Glenn Shor, a former policy advisor at the California Department of Industrial Relations and lecturer in public health at Sacramento State University and UC Berkeley.

The text of Proposition 22 reveals some key differences between the proposed private policy and California’s workers’ compensation program.

The ballot measure would require gig companies to provide coverage for medical expenses of at least $1 million for on-the-job injuries, meaning they could choose to cover more but would not have to. By contrast, there is no limit on medical care expenses covered through the state program. And while workers are eligible for lifelong assistance for permanent disability through the state and are entitled to vocational training if they need to switch jobs due to injury, the Proposition 22 policy would offer only two years of disability payments.

Additionally, experts say that under the Proposition 22 policy it would be more difficult for workers to secure compensation for COVID-related illness, disability or death.

An executive order signed by Gov. Gavin Newsom in May — and codified into law by the Legislature in September — established a presumption in workers’ compensation claims that essential workers infected with COVID-19 contracted the virus on the job. Employers can fight it on a case-by-case basis, but it still means a lower burden of proof: To get the money, the workers need only show that their jobs put them at greater risk of contracting the coronavirus than the general public, said Cheryl Wallach, a lawyer who advocates for health and safety laws with the nonprofit Worksafe.

This relaxed burden of proof would not apply to claims under the private insurance policy, according to experts and an attorney for the Yes on 22 campaign.

More broadly, it’s unclear how claims under the private policy would be decided. Shor said the state workers’ compensation system is set up to be an independent body with objective judges, but Proposition 22 does not discuss how the private system would work. If left up to the companies to decide exactly what kinds of claims qualify for coverage, it could give them the power to make the systems ineffective and avoid paying benefits to workers, he said.

Representatives with the Yes on 22 campaign said the system would work like any other private insurance policy — auto or homeowners insurance, for example — that have set processes for submitting and disputing claims. Disputes could be resolved by private parties through litigation or arbitration, and if state officials found companies were not holding up their end, they too could pursue litigation, said Geoff Vetter, a spokesman with the campaign.

Jordan Gaytan, a lawyer with Zapanta Alder Law who is representing the Zayyid family, remains skeptical that Proposition 22’s insurance policy would be a suitable alternative to workers’ compensation, even though the measure in theory provides for death benefits similar to those the Zayyid family applied for.

“I don’t even know what court of law it would be applied in,” Gaytan said. “It creates what we’d call a legal quagmire, this gray area that Uber and these ride-share companies can operate in.”

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Uber declined to answer questions about whether the Zayyid family or others in similar situations would be qualified for death benefits under Proposition 22.

Uber spokesman Davis White said in an email that the company provides COVID-related financial assistance and has paid out more than $10 million to over 16,750 drivers and delivery workers since March. White said the policy also potentially covers driver fatalities, but that Uber had no record of Zayyid or his family contacting the company for assistance.

Gaytan said neither he nor the family knew the fund existed. He added that the policy — which provides up to 14 days of financial assistance to a driver diagnosed with the virus or ordered to quarantine — is not a suitable replacement for hundreds of thousands of dollars in assistance provided as part of death benefits.

Gaytan is pushing for a trial through the workers’ compensation appeals board to dispute Zayyid’s independent contractor status. Courts deciding on worker classification cases are watching the ballot measure. If Californians vote down Proposition 22, the family will have a better chance at winning their case.

In the meantime, Zayyid’s 28-year-old son Tarik is working a new job as a loan officer, under pressure to help provide financially for his siblings — a brother and three sisters — and mother. (He said he used to make decent money as a car salesman, but his commissions tanked when the pandemic hit.)

His father’s death isn’t the only one that has rocked the family in recent months. Tarik’s uncle, Zayyid’s older brother, died of a heart attack in September, shortly after helping to pay for the funeral.

Tarik and all but one of his siblings still live in the two-story home in Corona where the family has lived for nearly 20 years. Everything in the house reminds Tarik of his father.

Zayyid was a handy man, constantly fixing things — clambering up on a ladder one day to tweak the chandelier, the next repairing tiles and stuccoing the walls. The kids usually knew Zayyid was working on his daughter’s car when they heard the deep, quavering tones of celebrated Lebanese singer Fairuz drifting through the house from the stereo in the garage.

Zayyid was born and raised in Jordan, where his family settled after fleeing their home in Palestine during wartime. He immigrated to California in his mid-20s. His longtime friend Nabil Jabrun said Zayyid dreamed of going back to visit the region but hadn’t had a chance to do so in many years.

“I would say, ‘One of these days whenever you can, you will go see my home in Jerusalem,” Jabrun said.

“He would always say, ‘Inshallah, I want to do that.’”