New California Laws Adding Employer Responsibilities for COVID-19 Workplace Outbreaks
New California Laws Adding Employer Responsibilities for COVID-19 Workplace Outbreaks
On September 17, 2020, California Governor Gavin Newsom signed two new bills into law that impact how California employers must handle potential COVID-19 outbreaks at the workplace. First, SB 1159 creates a rebuttable presumption of workers’ compensation liability for certain COVID-19-related claims and imposes new reporting obligations for California employers to their workers' compensation carriers. Second, AB 685 imposes mandatory communications on California employers to their employees at the workplace, union representatives (if any), as well as to local public health agencies in the event of outbreak.
SB 1159 Impacts COVID-19-Related Workers’ Compensation Coverage
SB 1159 adds Section 3212.88 to the Labor Code (“Section 3212.88”), which amends existing workers' compensation laws to address the impact of COVID-19 on the workplace for employers. It became immediately effective pursuant to an urgency clause.
The pertinent section of the new law defines "injury" to include illness or death resulting from COVID-19 if (1) an employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor at the employee's place of employment; (2) the day referenced in clause (1) was on or after July 6, 2020; and (3) the employee's positive test result occurred during a period of an “outbreak” at the employee’s "specific place of employment." The employee's "specific place of employment" includes the building or facility where an employee performs work at the employer’s direction. It does not include the employee’s home or residence. And an "outbreak" exists if within 14 calendar days, either: (1) an employer with 100 or less employees at a specific place of employment has four employees that test positive for COVID-19; (2) an employer with more than 100 employees at a specific place of employment has four percent of the number of employees who report to the specific place of employment test positive for COVID-19; or (3) a specific place of employment is ordered to close by a local public health department, the State Department of Public Health, or the Division of Occupational Safety and Health due to a risk of infection with COVID-19.
In addition to expanding the definition of "injury" under California’s workers' compensation laws, Section 3212.88 creates a rebuttable presumption that the injury arose out of and in the course of employment, unless controverted by evidence to the contrary. Evidence sufficient to controvert the rebuttable presumption may include evidence of measures the employer took to reduce potential transmission of COVID-19 at the specific place of employment, or the injured employee’s nonoccupational risks of COVID-19 infection.
Moreover, the law requires that, when an 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 e-mail or fax within three business days: (1) that an employee has tested positive for COVID-19; although, "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;" (2) the date the employee tested positive, defined as "the date the specimen was collected for testing;" (3) the address(es) of the employee's specific place(s) of employment during the 14-day period prior to the date the employee tested positive; 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. The new law imposes a penalty of up to $10,000 for employers that intentionally submit false or misleading information (or fail to submit information) when reporting pursuant to the new law. Special rules apply to reporting events that arose between the period of July 6, 2020, and September 17, 2020.
EP will inform production company clients for which EP is providing workers' compensation coverage about how they must keep EP immediately advised of any information that may give rise to a reporting obligation.
AB 685 Imposes New Employer Notification/Reporting Obligations for COVID-19 Infections
AB 685 adds Section 6409.6 to the Labor Code (“Section 6409.6”). Unlike Section 3212.88 discussed above, Section 6409.6 does not have an urgency clause; therefore, it goes into effect on January 1, 2021.
Section 6409.6 modifies Cal-OSHA safety standards and requires employers to provide written notification to employees and, in some cases, to the public health department when there has been a COVID-19 exposure in the workplace. Because production companies are the employers responsible for complying with Cal-OSHA, they will need to develop a process to provide written notice to employees, as well as to the appropriate local public health agency in the case of an "outbreak."
Employers must provide the required notice within one business day from when the employer receives notice of a potential COVID-19 exposure in the workplace. Notice of a potential exposure means (i) notification to the employer from a public health official or medical provider that an employee was exposed to a "qualifying individual" at the worksite; (ii) notification from the employee that the employee is a "qualifying individual;" (iii) notification through the testing protocol of the employer that the employee is a "qualifying individual;" or (iv) notification from a subcontracted employer that a “qualifying individual” was at the worksite. "Qualifying individual" means a person who (i) has a laboratory-confirmed case of COVID-19; (ii) has received a positive diagnosis from a licensed health care provider; (iii) is subject to a COVID-19 isolation order from a public health official; or (iv) died due to COVID-19.
The required notice must be provided to employees and to their exclusive representative (i.e., union). It may be sent in "a manner that the employer normally uses to communicate employment-related information,” which can include personal service, email, and/or text message. Despite the form, the notice must be reasonably calculated to ensure that affected employees will be notified within one business day. The notice also should be drafted to protect employee privacy and should not disclose personally identifiable information nor health information about any individual who may have tested positive.
Because the law refers to different groups of employees to whom notice must be provided, it is unclear if multiple notices or a single notice to employees is enough. The law requires the employer to give notice to employees and to their exclusive representative who "were on the premises at the same worksite as the qualifying individual within the infection period," as defined by the California State Department of Public Health. The law also requires the employer to provide all employees "who may have been exposed" and to their exclusive representative (if any) with information regarding benefits to which the employee may be entitled under applicable law, including COVID-19-related paid and unpaid leave, regular sick leave benefits and workers' compensation benefits, as well as the employer's anti-retaliation and non-discrimination policies. Employers also must provide notice to "all employees" of their disinfection and safety practices as well as their safety plan pursuant to Center of Disease Control (CDC) guidelines.
Finally, employers must notify the local public health agency if the number of cases known to the employer meets the definition of a COVID-19 "outbreak," as defined by the California State Department of Public Health. This required notice must include the names, number, occupation, and worksite of employees who are "qualifying individuals." The employer must also continue to update the local health department of any confirmed COVID-19 cases at the worksite.
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