California Expands COVID-19 Worker Protections

September 23, 2020
On September 17, 2020, California Governor Gavin Newsom signed two new bills as part of his worker protection package. The first, SB 1159, expands the presumption of workers’ compensation liability for COVID-19 claims. The second, AB 685, ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces. These bills are covered in more detail below.



Workers’ Compensation – SB 1159
 
SB 1159 expands workers’ compensation for covered employees by codifying the COVID-19 presumption created by Executive Order N-62-20 and creating two additional disputable presumptions.
 
Disputable Presumption for Employees Who Contract COVID-19 During an Outbreak. SB 1159 creates a disputable presumption that an employee’s COVID-19-related illness arose out of and in the course of employment if: 
  1. On or after July 6, 2020 through January 1, 2023, the covered employee tests positive for COVID-19 within 14 days after a day that the employee performed, at the employer’s direction, labor or services at the employee’s place of employment;
  2. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment; and
  3. The employer has five or more employees.
(SB 1159 contains another presumption related to firefighters, peace officers, and healthcare workers that is not covered in this post.)
 
Date of Injury. An employee’s date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
 
Employees Whose Employment is Terminated. The presumption extends to covered employees following their termination for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment.
 
Testing. For the presumption to apply, the employee must test positive utilizing a PCR (Polymerase Chain Reaction) test approved for use or emergency use by the United States Food and Drug Administration (“FDA”) to detect the presence of viral RNA or any other viral culture test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test. The employee may not rely on antibody testing to establish the presumption.
 
Specific Place of Employment. A specific place of employment means the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. A specific place of employment does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence.

Multiple Places of Employment. In the case of an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s positive test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.”

Outbreak. An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:
  • If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.
Disputing the Presumption. Employers are permitted to present evidence to dispute this presumption. Such evidence may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s non-occupational risks of COVID-19 infection. If liability for a claim of a COVID-19-related illness is not rejected within 45 days of its filing, the illness is presumed compensable unless rebutted “by evidence discovered subsequent to the 45-day period.” If an employee’s COVID-19-related claim is accepted, the compensation that is awarded shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided for in the bill.
 
Exhaustion of Benefits. An employee with paid sick leave benefits specifically available in response to COVID-19 must exhaust those benefits before any temporary disability benefits or other applicable statutory benefits are due and payable. If an employee does not have such sick leave benefits, temporary disability benefits or other applicable statutory benefits must be provided from the date of disability.
 
Effect on Final Awards of Workers’ Compensation Benefits. This disputable presumption applies to all pending matters as specified, but is not a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
 
Reporting to Claims Administrator. When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer shall report to their claims administrator in writing within three business days the following information: 
  1. an employee has tested positive;
  2. the date that the employee tests positive, which is the date the specimen was collected for testing;
  3. the specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test; and
  4. the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
Any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to September 17, 2020, shall report to their claims administrator in writing, within 30 business days of September 17, 2020, all of the data listed above, except that  for the data required by paragraph (4) above, the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and the effective date of this section. The claims administrator shall use the information reported under this paragraph to determine if an outbreak has occurred from July 6, 2020, to the effective date of this section, for the purpose of applying the presumption under this section.
 
Submission of False or Misleading Information. An employer or other person acting on behalf of an employer who intentionally submits false or misleading information or fails to submit required information is subject to a civil penalty in the amount of up to ten thousand dollars ($10,000) to be assessed by the Labor Commissioner.
 
Effective Date. This law went into effect immediately, on September 17, 2020.
 
 
 
COVID-19 Notification and Reporting – AB 685
 
Among other things, AB 685 imposes on employers new notice and reporting requirements relating to COVID-19 workplace exposure.
 
Notification to Employees. Under AB 685, if an employer or its representative receives a notice of potential exposure to COVID-19, described in more detail below, the employer shall take all of the following actions within one business day of the notice of potential exposure:
  1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
  2. Provide a written notice to the exclusive representative, if any, of employees under paragraph (1). The notice required shall contain the same information as would be required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer. This requirement shall apply regardless of whether the employer is required to maintain a Cal/OSHA Form 300 injury and illness log. Notifications required by this section shall not impact any determination of whether or not the illness is work related.
  3. Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-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-19-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.
  4. 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.
Notice of Potential Exposure. A notice of potential exposure means any of the following:
  1. Notification to the employer or representative from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite.
  2. Notification to the employer or representative from an employee, or their emergency contact, that the employee is a qualifying individual.
  3. Notification through the testing protocol of the employer that the employee is a qualifying individual.
  4. Notification to an employer or representative from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.
Qualifying Individual. A qualifying individual means any person who has any of the following:
  1. A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health.
  2. A positive COVID-19 diagnosis from a licensed health care provider.
  3. A COVID-19-related order to isolate provided by a public health official.
  4. Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
Worksite. “Worksite” means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.

Infectious Period. “Infectious period” means the time a COVID-19-positive individual is infectious, as defined by the State Department of Public Health.
 
Notification to Public Health Agency. If an employer or its representative is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer shall notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who meet the definition of a qualifying individual.
 
An employer shall also report the business address and North American Industry Classification System (NAICS) code of the worksite where the qualifying individuals work. An employer that has an outbreak shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
 
Covered Employers. These notification and reporting requirements shall apply to both private and public employers, except that the requirement to report to the public health agency shall not apply to a “health facility,” as defined in Section 1250 of the Health and Safety Code. 
 
Covered Employees. The requirements of this section do not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the qualifying individual is an employee at the same worksite.
 
Disclosure of Medical Information and Recordkeeping. An employer shall not require employees to disclose medical information unless otherwise required by law. No personally identifiable employee information shall be subject to a California Public Records Act request or similar request, posted on a public internet website, or shared with any other state or federal agency. An employer shall maintain records of the written notifications required to employees for a period of at least three years.
 
Employers should bear in mind other confidentiality and privacy concerns when disclosing information to employees. More information on federal guidance relating to disclosure to employees of workplace infections of COVID-19 can be found in our memorandum, “EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 Crisis.
 
Retaliation Prohibited. An employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Workers who believe they have been retaliated against in violation of this section may file a complaint with the Division of Labor Standards Enforcement.
 
Effective Date. This law goes into effect on January 1, 2021.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.

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