On September 17, 2020, California Governor Gavin Newsom signed two bills into law as part of his worker protection package. The first, SB 1159, creates a “disputable presumption” for worker’s compensation purposes that certain employees who test positive for COVID-19 contracted the virus at work. SB 1159 was implemented as an emergency measure and became effective immediately upon Governor Newsom signing the bill though with a retroactive effect. The second bill, AB 685, requires employers to provide notice to employees and their representative (if any) when there is a COVID-19 exposure in the workplace and to provide notice to local public health departments when a COVID-19 “outbreak” occurs. AB 685 also authorizes the California Division of Occupational Safety and Health (“Cal OSHA”) to act when it deems there is an “imminent hazard” related to potential COVID-19 transmission. AB 685 takes effect January 1, 2021. Below is a summary of what California employers need to know about these new laws.
In May, Governor Newsom enacted Executive Order N-62-20 (“Executive Order”), which—in stark contrast to the rest of the country—created a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus in the workplace and are thus entitled to workers’ compensation benefits. With the Executive Order expiring on July 5, 2020, SB 1159 was passed to create a similar presumption for employees who suffer illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023.
A presumption exists for the following:
- Any employee who reported to their place of employment between March 19 and July 5, 2020 and tested positive for or was diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment at the employer’s direction.
- First responders and health care workers, including firefighters, peace officers, fire and rescue coordinators, and certain health care and health facility workers. For health facility employees other than those employees who provide direct patient care and custodial employees in contact with COVID-19 patients, the presumption does not apply if the employer can establish the employee did not have contact with a COVID-19 positive patient within the last 14 days.
- For all other employees, the presumption applies if an employee works for an employer with five or more employees and the employee tests positive for COVID-19 during an “outbreak” at the employee’s “specific place of employment.” An outbreak is deemed to have occurred if, within a 14-calendar day period, one of the following takes place at a specific place of employment:
- Four or more employees test positive for COVID-19 (limited to locations where the employer has 100 employees or fewer);
- Four percent of the number of employees who reported to the specific place of employment test positive for COVID-19 (limited to locations where the employer has more than 100 employees at a specific place of employment); or
- A specific place of employment is ordered to be closed by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due a risk of infection with COVID-19.
Disputing the Presumption
An employer can dispute the presumption by providing information such as: (1) measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment, (2) the employee’s nonoccupational risks of COVID-19 infection; and (3) any other evidence routinely gathered to dispute a workers’ compensation claim.
If the date of injury is on or after July 6, 2020, for employees who meet the criteria for the first responders and health care workers presumption, an employer has up to 30 days, rather than the standard 90 days, to investigate and make a decision whether to accept or deny a claim. If the employer fails to reject a claim within 30 days, the injury or illness is presumed compensable and can only be disputed with evidence discovered after the 30-day period.
If an employee meets the criteria for the outbreak presumption, the deadlines listed above are extended to 45 days.
Until a decision is made by the employer to accept or deny a claim, the employee may be eligible for federal, state, or local COVID-19 paid sick leave benefits and up to $10,000 in medical treatment for COVID-19 related illness.
Effective immediately, when an employer “knows or reasonably should know that an employee has tested positive for COVID-19” the employer must report to its workers’ compensation claims administrator the following information within three business days, via e-mail or fax:
- An employee has tested positive. The employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work-related or has filed a claim form pursuant to Labor Code § 5401.
- The date the employee tests positive, which is the date the specimen was collected for testing.
- The address or addresses of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test.
- The highest number of employees who reported to work at the employee’s specific place(s) of employment in the 45-day period preceding the last day the employee worked at each specific place(s) of employment.
Further, if an employer is aware of an employee who tested positive between July 6, 2020 and September 16, 2020, the employer must report the information detailed in the first three bullet points above, via e-mail or fax, to its claims administrator within thirty business days of September 17, 2020. The employer must also report the highest number of employees who reported to work at each of the employee’s specific place(s) of employment on any work date between July 6, 2020 and September 16, 2020.
The workers’ compensation claims administrator will use the above information to determine whether an outbreak has occurred and then assess employee eligibility based upon that determination.
If an employer fails to provide the required notice, a penalty of up to $10,000 may be assessed to an employer who “intentionally submits false or misleading information or fails to submit information.”
This new law, which goes into effect January 1, 2021, requires California employers to provide notice within one business day of receiving notice of a “potential exposure” (notice that an employee is a “qualifying individual,” as defined below, or was exposed to a qualifying individual in the workplace). In addition, if the number of cases meets the definition of an “outbreak” as defined by the California Department of Public Health, the employer must also provide notice to the applicable local public health agency within 48 hours.
Notice Requirements Related to Potential Exposure to COVID-19
First, the law requires written notice to all employees, and their exclusive representative (if any), and employers of subcontracted employees who were at the same worksite as the qualifying individual within the “infectious period” and therefore may have been exposed to COVID-19. A qualifying individual is someone who: (1) has a laboratory-confirmed case of COVID-19; (2) has a positive COVID-19 test; (3) has a COVID-19 related order from a public health official to isolate; or (4) has died from COVID-19. The infectious period is determined according to guidance issued by the California Department of Public Health, which currently defines it as 14 days, including, at minimum, the 48 hours before the individual developed symptoms. The notice should not identify the name or disclose personally identifiable information of the infected person.
Written notice should be provided in the manner normally used to communicate employment-related information and may include personal service, email, or text message if it can reasonably be anticipated notice would be received within one business day. The notice should be in English and the language understood by a majority of the employees.
In addition, the notice to any exclusive representative must include the same information that is required to be reported in a Cal OSHA Form 300 injury and illness log, regardless of whether the employer is required to maintain such a log. Employers may disclose this information without obtaining employee authorization.
Second, the law requires written notice to all employees who may have been exposed and their exclusive representative (if any), regarding COVID-19 related benefits to which the employee may be entitled under applicable federal, state, or local laws. This includes, but is not limited to, information related to workers’ compensation benefits, COVID leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies.
Third, the law requires written notice to all employees and their exclusive representative (if any), of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control (“CDC”).
Employers are required to maintain records of the written notification for at least three years.
As detailed above, AB 685 sets forth different notice requirements depending on the circumstances of the employee. Employers will want to closely review any clarification given by the state to ensure compliance.
Notice Requirements Related to a COVID-19 Outbreak
An outbreak for purposes of AB 685 is defined as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” Within 48 hours of an outbreak occurring, notice must be provided to the local public health agency with the names, number, occupation and worksite of the employees, and the business address and the NAICS code of the worksite. An employer with a reported outbreak must also notify the local public health department of any subsequent laboratory confirmed cases of COVID-19 at the workplace.
Once this information is provided, the California Department of Public health will publish the information on its website in a format that allows the public to track the number and frequency of COVID-19 cases and outbreaks by industry.
Exemptions from the Notice Requirement
These requirements apply to all private and public employees, with two exceptions. First, the notice requirements related to a COVID-19 outbreak do not apply to a “health facility” as defined in Section 1250 of the Health and Safety Code. Second, the notice requirements do not apply to employees who, as part of their duties, conduct COVID-19 testing/screening or provide direct patient care or treatment to individuals who are exposed to or test positive for COVID-19, unless the qualifying individual is an employee at the same worksite.
Cal OSHA Enforcement
Under AB 685, if Cal OSHA finds that a workplace or operation/process within a workplace presents an imminent hazard because of the potential exposure to COVID-19, Cal OSHA may prohibit entry or access to a worksite or prohibit performance of an operation or process at the worksite. If such a restriction is imposed, notice will be issued to an employer which must be posted in a conspicuous place at the worksite. Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the imminent hazard was identified. Further, Cal OSHA may not impose restrictions that would “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.”
Additionally, current Cal OSHA regulations require OSHA provide notice to an employer of the alleged violation at least 15 days before issuing a citation, allowing the employer an opportunity to respond and rebut the presumption that a serious violation occurred. AB 685 modifies this process by allowing Cal OSHA to issue a citation alleging a serious violation without soliciting information from the employer to rebut the presumption. Thus, Cal OSHA does not have to notify an employer 15 days before issuing a serious violation related to COVID-19. The employer, though, is still able to contest the citation through the existing Cal OSHA appeal procedures. AB 685 provides a list of actions employers can take to help establish the absence of a serious violation: procedures for communicating the employer’s health and safety rules and programs to employees; training for employees and supervisors to prevent employee exposure; procedures for discovering, controlling access to, and correcting the hazard; and supervision of employees exposed or potentially exposed.
The Kullman Firm, with licensed California attorneys, regularly advises clients on California employment issues. If you have questions about COVID-19 or the California legislation discussed above, please contact the Kullman Firm attorney with whom you regularly work for the most current guidance on these matters.