California Passes Two Laws Increasing Employers’ COVID-19 Obligations
On September 17, 2020, California Governor Gavin Newsom signed two bills impacting how employers respond to COVID-19. SB 1159, which is effective immediately, codifies a May Executive Order creating a rebuttable presumption that employees who test positive for COVID-19 contracted the virus at work for workers’ compensation purposes. These employees are eligible for “full hospital, surgical, medical treatment, disability indemnity, and death benefits.”
SB 1159 does have provisions for an employer to dispute the presumption that employees contracted the virus at work if the employer can provide evidence of: “(1) measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment, (2) the employee’s non-occupational risks of COVID-19 infection, (3) statements made by the employee, and (4) any other evidence normally used to dispute a work-related injury.”
The presumption that employees who test positive for COVID-19 contracted the virus at work exists for all employees: “(1) who test positive during an outbreak at the employee’s specific place of employment; and (2) whose employer has five or more employees.” The law defines an outbreak as, if, within 14 calendar days, one of the following occurs at a specific place of employment: (1) if the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19; (2) 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; 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 with COVID-19.
SB 1159 requires an employee to use and exhaust their paid sick leave benefits specifically available in response to COVID-19, before any temporary disability benefits kick in. If an employee does not have those sick leave benefits, the employer must provide temporary disability benefits from the date of illness without any waiting period.
Additionally, Governor Newsom signed AB 685, increasing reporting obligations for workplaces with COVID-19 exposure. This bill requires employers who have notice of a potential COVID-19 exposure to provide written notice to employees who were at the worksite at the same time as a potentially infected person. This notice requirement is triggered if “qualifying individual” provides the employer notice. The law defines “qualifying individual” as a person who can establish any of the following requirements: (1) a laboratory-confirmed case of COVID-19; (2) a positive COVID-19 diagnosis from a licensed health care provider; (3) a COVID-19 related isolation order issued by a public health official; or (4) death due to COVID-19 as determined by the County public health department. AB 685 takes effect on January 1, 2021.
Under AB 685, an employer must also provide all affected employees with information detailing COVID-19 related benefits or leave rights, as well as the employee’s protections against retaliation and discrimination.
AB 685 also expands CalOSHA’s role and authority when dealing with COVID-19 exposures. The California Occupational Safety and Health Act of 1973 requires CalOSHA issue an order prohibiting entry or use of any area or equipment which constitutes an imminent hazard to employees. This law authorizes CalOSHA to shutdown a workplace which exposes workers to the risk of infection with COVID-19 constituting an imminent hazard to employees. The law does have exemptions for workplaces tasked with ensuring public health and safety functions or the delivery of electrical power or water.
Further expanding CalOSHA’s authority, AB 685 eliminates the obligation for the Agency to make a reasonable attempt to determine and consider whether mitigating factors were taken by an employer to rebut an alleged serious violation related to COVID-19. Thus, CalOSHA will not be required to send out the letter titled “Notice of Intent to Classify Citation as Serious” before issuing a serious violation related to COVID-19.