NEW LAWS IMPOSE REPORTING AND WRITTEN NOTICE OBLIGATIONS ON EMPLOYERS RELATING TO COVID-19 WORKPLACE
Posted: September 28, 2020 | News
On September 17, 2020, Governor Newsom signed two new laws impacting employer obligations relating to COVID-19 workplace exposures—S.B. 1159 and A.B. 685.
S.B. 1159- Disputable Presumption of Workers’ Compensation Coverage is Expanded
Senate Bill 1159 extends and expands the Governor’s prior Executive Order N-62-20 creating a COVID-19 disputable presumption (“presumption”) of eligibility for workers’ compensation benefits if specified criteria are met. The new law took effect immediately. While certain aspects of the law extended the prior Executive Order, the law also added several new provisions with which employers should become familiar.
Additional Reporting Obligations
The new law places additional reporting obligations on employers with five or more employees. For example, when the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report to their claims administrator in writing via electronic mail or fax within three business days all of the following:
(1) An employee has tested positive. For purposes of this reporting, the employer must 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.
(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.
(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.
Notably, any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of SB 1159 must report to their claims administrator, in writing via electronic mail or fax, within 30 business days of the effective date of this new law, all of the data required above. For the data required by paragraph (4) above, the employer must 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 the new law.
An employer or other person acting on behalf of an employer who intentionally submits false or misleading information or fails to submit information when reporting pursuant to the provisions above is subject to a civil penalty in the amount of up to ten thousand dollars ($10,000) to be assessed by the Labor Commissioner.
Presumption COVID-19 Was Contracted at Work is Expanded
The new presumption exists for employees who suffer illness or death resulting from COVID-19, subject to certain conditions, on or after July 6, 2020 through January 1, 2023. The presumption applies to employers with five or more employees whose employees test positive during an “outbreak” at the employee’s specific place of employment if all of the following occur:
(1) The employee tests positive for COVID-19 within 14 days after a day that the employee worked at the employee’s place of employment at the employer’s direction.
(2) The day on which the employee performed the work was on or after July 6, 2020. The date of injury is the last date the employee performed the work prior to the positive test.
(3) The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
The law clarifies that an “employee’s specific place of employment” excludes the employee’s home or residence, “unless the employee provides home health care services to another individual at the employee’s home or residence.”
If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and exhausted before any temporary disability benefits. If an employee does not have those sick leave benefits, the employee must be provided temporary disability benefits, if applicable, from the date of disability without any waiting period.
What is an “Outbreak”?
An outbreak exists if within 14 days one of the following occurs at a specific place of employment:
(1) four employees test positive if the employer has 100 employees or fewer;
(2) four percent of the number of employees who reported to the specific place of employment test positive if the employer has more than 100 employees; or
(3) 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 of COVID-19.
How Can Employers Rebut the Presumption?
Employers may controvert the presumption with evidence, which 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 nonoccupational risks of COVID-19 infection. However, subject to limited exceptions, if liability for a claim of a COVID-19-related illness is not rejected within 45 days after the date the claim is filed, the illness shall be presumed compensable. The criteria and time periods for investigating and disputing the presumption are different for first responders, health care workers and for injuries that occur before July 6, 2020. Employers will need to review the criteria applicable to their workforce to ensure compliance.
A.B. 685-Employers Must Provide Written Notice to Workers Who May Have Been Exposed to COVID-19
Assembly Bill 685 expands Cal/OSHA’s authority for workplaces that pose a risk of an “imminent hazard” relating to COVID-19, and requires employers to provide written notice to employees who may have been exposed to COVID-19 and inform local public health officials. The law takes effect on January 1, 2021. This article will only address the new COVID-19 reporting aspects of the law.
What are the New Reporting Obligations?
If an employer or representative of the employer receives a notice of potential exposure to COVID-19 as defined in the law, the employer must 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).
(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 antiretaliation and antidiscrimination 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.
If an employer or representative of the employer 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 NAICS code of the worksite where the qualifying individuals work. An employer that has an outbreak subject to this section shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
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; or (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.
This law is good reminder to employers to review their written COVID-19 response and mitigation plans to ensure compliance with the new law’s requirements.
For further information regarding compliance with SB 1159 and AB 685, the employment attorneys at Ferruzzo & Ferruzzo, LLP are available to provide guidance.
This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.
Alison C. Gibbs, Esq. is a Senior Associate of the firm's Employment Practice Group. Alison represents employers in a wide-range of employment-related litigation, including wage and hour defense, and defense of discrimination, harassment and retaliation claims. Alison also regularly advises employers before litigation ever occurs, handling employment disputes and managing day-to-day employee issues, including reviewing employee handbooks policies, wage and hour compliance, leave issues, internal investigations, lay-offs, disciplinary action, terminations, severance negotiations, and other employment practices