On September 17, 2020, California Governor Gavin Newsom signed two related bills into law as part of his COVID-19 worker protection package. The new laws expand the presumption of workers’ compensation liability with respect to employees who contract COVID-19, impose new notice and reporting requirements on employers with respect to COVID-19 cases in the workplace, and expand the California Occupational Health and Safety Administration’s (“Cal/OSHA”) enforcement authority.

Senate Bill (“SB”) 1159

Presumption of Workers’ Compensation Liability for Employee COVID-19 Claims

Effective immediately, SB 1159 amends existing workers’ compensation laws and creates a “disputable presumption” that a covered employee’s illness or death resulting from COVID-19 on or after July 6, 2020, through January 1, 2023, presumably has arisen out of and in the course and scope of employment for worker’s compensation purposes. SB 1159, which adds sections 3212.86, 3212.87 and 3212.88 to the California Labor Code, codifies the temporary rebuttable presumption that Governor Newsom’s Executive Order N-62-20 had created in May of 2020, which expired on July 5, 2020.

To qualify for the presumption, an employee (1) must work for an employer with five or more employees, and (2) must test positive for COVID-19 within 14 days after performing labor or services at the employer’s direction at the employee’s place of employment, (3) during a period in which there was a COVID-19 outbreak at the employee’s specific place of employment (which is specifically defined to exclude an employee’s home or residence).

For purposes of this rule, an “outbreak” exists if, during a 14-day period, one of the following occurs at a place of employment:

  1. If the employer has 100 or fewer employees at a specific place of employment, and four employees test positive for COVID-19;
  2. If the employer has more than 100 employees at a specific place of employment, and four percent of the number of employees who reported to the specific place of employment test positive; or
  3. A specific place of employment is ordered to close by a local or state health department, OSHA, or a school superintendent due to a risk of infection with COVID-19.

Employers may present evidence to dispute the presumption, including evidence of measures the employer had implemented to mitigate potential transmission of COVID-19 in the employee’s workplace and evidence of the employee’s non-occupational risks of COVID-19 infection. The new law affords the employer a very short timeframe to dispute the presumption. Specifically, the workers’ compensation claims administrator has a 30-day investigation period in which to deny an employee’s COVID-19-related claim with respect to claims arising from exposure between March 19, 2020, and July 5, 2020, and claims of “essential employees” as defined in Labor Code section 3212.87 (such as firefighters, peace offers, frontline healthcare providers and home health care workers) or a 45-day investigation period with respect to claims arising from exposure on or after July 6, 2020. Upon expiration of this investigation period, the injury is presumed compensable and may only be rebutted by the employer with evidence discovered subsequent to the applicable investigation period.

If the presumption applies, employees are entitled to full hospital, surgical, medical treatment, disability indemnity, and death benefits, as otherwise provided under the worker’s compensation statutes. The Department of Industrial Relations, however, has waived employee entitlement to collect any death benefits if the employee does not have dependents.

Notice Requirements Regarding Employees Who Test Positive for COVID-19

In addition, SB 1159 imposes new notice requirements on employers with respect to employees who test positive for COVID-19 “during an outbreak at the employee’s specific place of employment.” Starting on September 17, 2020, until January 1, 2023, newly codified Labor Code section 3212.88 requires an employer who “knows or reasonably should know that an employee has tested positive for COVID-19” to report the illness to its workers’ compensation claims administrator within three business days via e-mail or fax, regardless of whether the employee makes a workers’ compensation claim. In doing so, the employer is not permitted to provide any personally identifiable information regarding the employee, unless the employee asserts a work-related claim. The notice must advise the administrator:

  1. that an employee has tested positive;
  2. the date of the positive test (i.e., the date the specimen was collected for testing);
  3. the address(es) of the employee’s specific place(s) of work during the 14-day period preceding the date of the positive test; and
  4. the highest number of employees who reported to work at the employee’s specific place of work in the 45-day period preceding the last day the employee worked at each specific place of employment.

In addition, any employer “who is aware” of an employee who tested positive for COVID-19 between July 6, 2020, and September 17, 2020, must retroactively report the information listed in subsections (1) through (3) above to its claims administrator via email or fax by October 17, 2020 (30 days after implementation of the statute). In addition, instead of subsection (4), the employer must notify the administrator of 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 September 17, 2020.

This notice requirement does not apply to employees who work exclusively from home. Employers who fail to comply with the aforementioned notice requirements by “intentionally submit[ting] false or misleading information or fail[ing] to submit information” may be subject to a civil penalty of $10,000 to be assessed by the Labor Commissioner.

 

Assembly Bill (“AB”) 685

AB 685 enhances Cal/OSHA’s authority to address COVID-19 outbreaks in the workplace worksite and imposes new employer notice obligations on employers with respect to COVID-19 exposures in the workplace. AB 685 takes effect on January 1, 2021, and sunsets on January 1, 2023.

New Notice to Employees of COVID-19 Exposure

If an employer receives notice of a potential exposure to COVID-19 in the workplace by a “qualifying individual,” the employer is required to provide written notice regarding the potential COVID-19 exposure to all employees and employers of subcontracted employees who were at the same worksite within the infectious period within one business day. The notice must be sent in a manner that the employer normally uses to communicate employment-related information and that the employer can reasonably anticipate will be received within one business day, it must be in both English and the language understood by the majority of employees, and must provide the following information:

  1. written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period, that they may have been exposed to COVID-19;
  2. notice of any COVID-19-related benefits or leave rights to which the affected employees may be eligible (under federal, state or local laws or the employer’s policies);
  3. notice of their protections against retaliation and discrimination; and
  4. notification of the employer’s plans for implementing and completing a disinfection and safety plan pursuant to guidelines issued by the Centers for Disease Control and Prevention.

If any of the affected employees belong to a union, the employer must also provide the notice to the appropriate union representative.

For purposes of these requirements, a “qualifying individual” means a person who:

  • has a laboratory-confirmed case of COVID-19;
  • received a positive COVID-19 diagnosis from a licensed health care provider;
  • is subject to a COVID-19-related isolation order issued by a public health official; or
  • has passed away due to COVID-19 as determined by the County public health department.

In addition, employers that have a sufficient number of COVID-19 cases to qualify as an “outbreak,” as defined by the California Department of Public Health (“CDPH”), must notify the local public health agency of the outbreak within 48 hours. An “outbreak” for purposes of this notice requirement is defined by CPDH as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.”

AB 685 imposes the notice and reporting requirements on all public and private employees with the following exceptions:

  • health facilities, as defined in Section 1250, are exempt from reporting an “outbreak” within 48 hours; and
  • employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.

Employers are required to maintain records of these notices for at least three years.

Expansion of Cal/OSHA’s Enforcement Powers

AB 685 gives Cal/OSHA express authority to issue Stop Work Orders to employers if it determines that the worksite or the performance of certain operations or processes in the workplace expose workers to such risk of COVID-19 infection so as to constitute an imminent hazard. AB 685 also exempts Cal/OSHA “serious violation” citations related to COVID-19 from the normal citation process pursuant to which (1) the division must send a standardized form containing descriptions of the alleged violation to the employer at least 15 days before issuing a citation, and (2) the employer must be given the opportunity to present rebuttal evidence at a hearing even if the employer did not initially provide information in response to a Cal/OSHA inquiry. Instead, Cal/OSHA can issue the citation immediately, without the 15-day notice period.

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