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ALERT: California Enacts More New COVID-Related Laws Affecting Employers
Sep 17, 2020

ALERT: California Enacts More New COVID-Related Laws Affecting Employers

Topics: COVID-19, Legal Information, New Laws & Legislation

Today, Governor Newsom signed two pieces of COVID-related legislation—AB 685 and SB 1159—into law.  AB 685 imposes reporting requirements on employers related to COVID cases in the workplace.  SB 1159 expands the availability of workers’ compensation coverage for COVID illnesses on the part of certain employees who leave their homes to perform work for an employer. 

AB 685 – COVID Reporting

This new law provides that if an employer receives a notice of potential exposure to COVID (e.g. notice that an employee has COVID or was exposed to COVID in the workplace), the employer must take all of the following steps within ONE BUSINESS DAY of the notice of potential exposure:

  • Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual [e.g. an employee who was diagnosed with COVID, ordered to isolate in accordance with an official health order, or died of COVID) within the infectious period that they may have been exposed to COVID.  Written notice should be provided in the manner normally used to communicate employment-related information and may include personal service, email, or text message.
  • Provide a written notice to the exclusive representative, if any, of the employees.  This notice 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).
  • Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections of the employee.
  • Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

In addition to the foregoing, if an employer is notified that its number of cases meet the definition of a COVID “outbreak,” as defined by the State Department of Public Health, the employer has additional reporting obligations to their local public health agency within 48 hours.

The foregoing reporting requirements do not apply to employees who, as part of their duties, conduct COVID testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID, are persons under investigation, or are in quarantine or isolation related to COVID, unless the qualifying individual is an employee at the same worksite.

Employers are required to maintain records of the required employee/union notifications for 3 years.

In addition to the foregoing, AB 685 gives Cal/OSHA authority to prohibit certain operations or processes, or even entry into a workplace, if it determines that all or part of a workplace exposes workers to the risk of infection with COVID to constitute an imminent hazard to employees.

SB 1159 – Workers’ Compensation

Earlier this year, Governor Newsom issued an Executive Order allowing employees who work outside the home to collect workers’ compensation benefits for illness or injury associated with contracting COVID, by creating a presumption that the illness was work-related. That presumption extended to illness contracted up until July 6, 2020.  Today, Newsom signed SB 1159 into law, extending the presumption for certain classes of workers, and imposing new notice requirements on employers. These new provisions will be codified as Labor Code sections 3212.86-3212.88, and take effect immediately as urgency legislation.

Of first order is that the new law, passed as an emergency measure and effective immediately, requires all employers with 5 or more employees to provide their workers’ compensation carrier with information about employees who tested COVID+ since July 6, 2020 within the next thirty days.

In addition, going forward, employers must report to their carrier within three days of learning that an employee tested COVID+ (excluding personally identifying information about the employee), the date of the test, the place where the employee worked during the 14 days prior to the test and the number of employee at each place where the employee worked for the prior 45 days.

With respect to employees diagnosed with COVID-19 between March 19 and July 5, 2020, the new law codifies the Executive Order and applies to any employee that has a COVID-19 related illness that occurred within 14 days after the last day the person worked.  Such employees qualify for the presumption of Workers’ Compensation coverage requiring an employer to act quickly and accept or deny the claim within 30-days.  If the claim is not denied within 30-days, it is presumed compensable.  Otherwise, the presumption is only rebuttable by evidence discovered after the initial 30-day period.

For employees infected with COVID-19 after July 6, 2020, the law creates two categories of employees with slightly different rules:

First, Section 3212.87 provides the presumption of compensable injury to specific first responders and health care professionals.  This section applies to workers if they test positive on or after July 6, 2020 and within 14 days after their last day of work.  Testing must be under a PCR test and does not include employees working from home, except for providers of home supportive services.   Here, an employer has 30 days after the claim is made to accept or deny the claim.  If the claim is not rejected within 30-days, it is presumed to be compensable.  Otherwise, the presumption of industrial injury is only rebuttable by evidence discovered after the initial 30-day period.

Second, Section 3212.88 applies to all other employees who test positive during an “outbreak” at the employee’s specific place of employment after July 5, 2020 where the employer has 5 or more employees.  An outbreak is defined for employers with 100 or fewer employees as 4 employees testing positive with PCR tests within a 14 day period, or for employers with more than 100 employees, 4 percent of the employees testing positive in such a period.  Also, an outbreak is deemed to have occurred if the employer is closed by a local health department, OSHA or a school superintendent due to risk of COVID-19 infection.  For these employees, the employer has 45 days to determine compensability from the date of the claim.  If the claim is denied or no decision is made timely, the presumption is only rebuttable by evidence discovered after the initial 45-day period.  Relevant evidence to controvert the presumption includes an employer’s efforts to reduce potential workplace transmission of COVID-19 and evidence of an employee’s other risk factors, and non-occupational risks of COVID-19 infection, i.e. an employee’s activities outside of the workplace.  

While the new laws do provide some opportunity to rebut the presumption of an industrial injury, employers are encouraged to move swiftly after a claim is made if they believe that the claim may be properly denied.  Likewise, it remains to be seen how an employers’ efforts to reduce transmission factors will be applied in the field after an “outbreak” has occurred.

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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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