CALIFORNIA EMPLOYMENT LAW ALERT
On September 17, 2020, California Governor Gavin Newsom signed two new COVID-related laws: AB 685 and SB 1159. AB 685 imposes COVID-19 reporting requirements on employers. SB 1159 expands the availability of workers’ compensation coverage for COVID-19 illness among employees who leave their homes to perform work.
AB 685 – COVID-19 Reporting
Pursuant to AB 685, effective January 1, 2021, if an employer receives notice of potential exposure to COVID-19 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 (i.e. the employee who was diagnosed with COVID-19, ordered to isolate, or died of COVID-19). Written notice should be provided in the manner normally used to communicate employment-related information and may include personal service, email, or text message communications.
- Provide a written notice to the representative, if any, of the employees. This notice must include the same information 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 exposed individuals (and their representative) 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 COVID-19-related leave, including company sick leave, state-mandated leave, federal sick leave, as well as anti-retaliation and anti-discrimination protections available.
- Notify all employees of the disinfection and safety plan that is implemented.
In addition to these statewide requirements, employers must follow any applicable local public health reporting requirements, including cluster reporting obligations as defined by the State Department of Public Health. For further information regarding public health reporting best practices, see DDWK Update No. 24.
SB 1159 – COVID-19 Workers’ Compensation
As California employers may recall, Governor Newsom issued an Executive Order earlier this year that created a presumption for employees who work outside the home and who have COVID-19 related illness or injury. These workers are presumed to have contracted the illness during the course of their employment for purposes of workers’ compensation benefits. Although the presumption expired on July 6, 2020, SB 1159 extends the presumption for certain classes of workers, and imposes new notice requirements on employers. SB 1159 is an emergency measure and is effective immediately.
Here is an overview of what California employers need to do and know now:
- All employers with 5 or more employees must provide their workers’ compensation carrier with information about employees who tested positive for COVID-19 since July 6, 2020 within the next thirty days.
- Moving forward, employers must report a COVID-19 positive employee to their workers’ compensation carrier within three days of learning of the infection. The employer must provide the following information: the date of the test, the place where the employee worked during the 14 days prior to the test, and the number of employees at each place where the employee worked for the prior 45 days.
For employees infected with COVID-19 after July 6, 2020, the law creates two categories of employees with slightly different rules:
Section 3212.87 extends the presumption of compensable injury to first responders and health care professionals. An employer has 30 days after the claim is made to accept or deny the claim for such workers. If the claim is not rejected within 30-days, it is presumed to be compensable.
Section 3212.88 applies to all other employees who, after July 5, 2020, test positive during an “outbreak” at the employee’s place of employment where the employer has 5 or more employees.
- Employers with 100 or fewer employees: an “outbreak” is defined as 4 employees testing positive within a 14 day period.
- Employers with more than 100 employees: an “outbreak” is defined as 4 percent of the employees testing positive in such a period.
- 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.
- 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.
Evidence to rebut the presumption includes an employer’s efforts to reduce potential workplace transmission of COVID-19 and evidence of an employee’s non-occupational risk factors, i.e., an employee’s activities outside of the workplace.
In light of these added reporting requirements and strict evidentiary deadlines, employers dealing with COVID-19 positive employees or an “outbreak” in the workplace should promptly investigate and contact legal counsel after a claim is made in order to have an opportunity to present rebuttal evidence of causation. Do not hesitate to contact us for assistance with investigating and responding to COVID-19 workers’ compensation claim issues.