Employment Law Update: New COVID-19 Related Laws for 2021

December 23, 2020

Employment Law Update:  New COVID-19 Related Laws for 2021

 

The California Legislature and Governor Gavin Newsom enacted a wave of new employment laws imposing additional administrative burdens and legal risks on employers with operations in California.  This update will focus on the changes in employment law relating to COVID-19, including:

  • Enhanced enforcement and employer reporting requirements;
  • Creating a rebuttable presumption for purpose of workers’ compensation that a covered employee contracted COVID-19 at work;

AB 685 (Enhanced Enforcement and Employer Reporting Requirements)

AB 685 sets out an employer’s obligations upon learning that one of their employees has been infected with or exposed to COVID-19, and enhances the ability of the California Division of Occupational Health and Safety’s (“Cal/OSHA”) to enforce health and safety standards to prevent workplace exposure to and spread of COVID-19.

Notice by Employer of Potential Exposure

Under AB 685, if an employer receives a notice of “potential exposure to COVID-19,” the employer must provide a written notice within one business day to: (1) all employees, and the employer(s) of subcontracted employees, who were at the same worksite as the “qualifying individual” within the infectious period (currently defined as 10 days by the California Health Department) and who may have been exposed to COVID-19, and (2) the union(s) that represents the employees. The notice also must inform these parties of the disinfection and safety plan that the employer plans to carry out in accordance with CDC guidelines, and provide the employees (and their union, if any) information regarding the COVID-19-related benefits to which they may be entitled under applicable laws.

The written notice must be given in the same manner in which the employer normally communicates employment-related information. It may be distributed through any means, so long as it can reasonably be anticipated to be received by the employee within one business day after sending it (e.g., personal delivery, email, or text message). The written notice must be in both English and the language understood by the majority of the employees. To preserve employee privacy, the notice to employees must not disclose the identity of the qualifying individual. In contrast, the written notice to any unions must include the same information required in an incident report in a Cal/OSHA Form 300 log, which includes the employee’s name. Employers must maintain records of the written notice for at least three years.

The employer’s notification obligations are triggered upon receiving notice from (1) a public health official that an employee was exposed to a “qualifying individual,” (2) an employee (or their emergency contact) that they are a “qualifying individual,” (3) the result of test required by  the employer showing that the employee is a “qualifying individual,” or (4) a subcontractor that one of its employees is a “qualifying individual” and was at the employer’s worksite.

A “qualifying individual” is a person who:

  • has a laboratory-confirmed case of COVID-19,
  • has a positive COVID-19 diagnosis from a licensed health care provider,
  • has been ordered to isolate by a public health official due to COVID-19, or

has died due to COVID-19.

Report to Local Health Authorities of Outbreak

AB 685 also imposes obligations to report a COVID-19 “outbreak,” which it defines “as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.” In such a case, within 48 hours of learning this information, the employer must notify the local public health agency of the names, number, occupation, and worksite of the employees who are the qualifying individuals, the employer’s business address, and the NAICS code of the worksite. An employer that has an outbreak subject to these provisions must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

AB 685, to allow the public to track COVID-19 outbreaks, requires the California Health Department to make certain information on outbreaks publicly available on its website.  Local public health departments and Cal/OSHA must also provide a link to this page on their websites.

Cal/OSHA Enforcement Changes

AB 685 currently authorizes Cal/OSHA to prevent entry to a place of employment or prohibit an operation or process if it determines that the place of employment, operation, or process exposes workers to an “imminent hazard.” AB 685 amends section 6325 of the Labor Code to provide that Cal/OSHA can also prohibit operations when, in its opinion, a worksite or operation “exposes workers to the risk of infection” of COVID-19 so as to constitute an imminent hazard. Any such prohibition will be limited to the immediate area in which the imminent hazard exists.

AB 685 also modifies the process for when Cal/OSHA intends to issue a serious citation under Labor Code section 6432. Under the current statutory framework, before issuing a citation for a “serious violation” at a place of employment (i.e., “there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation”), Cal/OSHA must (1) make a reasonable attempt to determine and consider various mitigating factors, such as the training that the employer gives its employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards, and (2) issue a pre-citation containing the alleged violation descriptions it intends to cite as serious, providing the employer with an opportunity to submit rebuttal evidence and engage in dialogue with Cal/OSHA about why it believes no serious violation exists. AB 685 eliminates the pre-citation process and authorizes Cal/OSHA to immediately issue a citation alleging a serious violation relating to COVID-19 before considering any mitigating factors that may be presented by the employer.

AB 685 remains in effect until January 1, 2023.

SB 1159 (Presumption of Workers’ Compensation Liability for COVID-19 Illness Claims)

SB 1159 codifies the work-related COVID-19 presumption created by Executive Order N-62-20 and provides new rebuttable presumptions that an employee’s illness related to the coronavirus is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met for two categories of employees who get sick or injured due to COVID-19 on or after July 6, 2020.

Covered Employees

New Labor Code section 3212.87 creates a presumption of compensable illness to certain firefighters, peace officers, fire and rescue coordinators, health facility workers who provide direct patient care or are custodial workers at the health facility, registered nurses, medical technicians, providers of in-home supportive services, and employees who provide direct patient care for a home health agency who have tested positive for COVID-19 within 14 days after a day that they performed labor or services at their employee’s place of employment at their employer’s direction (i.e., the First Responders and Health Care Workers presumption).

For all other types of workers, under new Labor Code section 3212.88, any worker who suffers an illness or death related to COVID-19 after July 6, 2020 is presumed to have suffered an occupational injury, and is therefore entitled to workers’ compensation insurance benefits (i.e., the Outbreak presumption) if all of the following circumstances exist:

  • The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employer’s direction at the employee’s “specific place of employment.”
  • The work was performed on or after July 6, 2020.
  • The employee’s positive test occurred during a period of an “outbreak” at the employee’s “specific place of employment.”SB 1159 defines an “outbreak” differently from AB 685. Under SB 1159, an outbreak is defined to have occurred if within 14-calendar day period one of the following events has happened.

    What is an “Outbreak”?

    SB 1159 defines an “outbreak” differently from AB 685. Under SB 1159, an outbreak is defined to have occurred if within 14-calendar day period one of the following events has happened:

    • For employers of 100 employees or less at a specific place of employment, four employees tested positive for COVID-19.
    • For employers of more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment during the 14-day period tested 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.

    “Disputable” Presumptions

    The presumptions created by SB 1159 are “disputable” by the employer. This burden can be met by presenting evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment or that there were non-occupational risks that could have caused the employee’s COVID-19 infection.

    Reporting Obligation

    SB 1159 also creates new reporting requirements for employers related to the Outbreak presumption. When an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” the employer must report all of the following information to its workers’ compensation claims administrator within three (3) business days:

    • An employee has tested positive. The employer may not provide any personal identifying information of the employee who tested positive, unless the employee has asserted that the infection is work-related or has submitted a workers’ compensation claim related to the infection.
    • The date the employee tested positive (which is the date the specimen was collected for testing).
    • The address(es) of the specific place(s) of employment the infected employee worked during the 14-day period preceding the date the employee tested positive.
    • The highest number of employees who reported to work at the infected employee’s specific place of employment in the 45-day period preceding the last day the infected employee worked at the specific place(s) of employment.

      A civil penalty of up to $10,000 may be imposed by the Labor Commissioner if an employer intentionally submits false or misleading information. If this penalty is unsuccessfully contested by the employer, the Labor Commissioner is entitled to recover legal costs and attorney fees.

      This law took effect on September 17, 2020, and remains in effect through January 1, 2023.

      Impact of AB685 and SB1159 on Employers

      Employers should review and revise their existing procedures related to notifications of COVID-19 exposures in the workplace in order to ensure they comply with the new notice and reporting requirements imposed by AB685.

      With respect to SB1159, employers need to be prepared to respond to any indication that an employee has contracted COVID-19 and must work quickly and diligently to investigate each positive test and obtain evidence in all forms.

      This Employment Law Update is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a legal matter, it is best to consult the advice of an attorney. You can talk with an experienced attorney at Gresham|Savage by calling (909) 890-4499.