NEW LAW IMPOSES NOTIFICATION REQUIREMENTS ON EMPLOYERS
On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685 which imposes upon employers the requirement to provide written notifications to employees within one business day of receiving notice of potential exposure to COVID-19. In addition, employers must submit a report to Cal-OSHA. The law takes effect on January 1, 2021.What Notice is RequiredUnder AB 685, whenever an employer is put on notice that a “qualifying individual” was in the workplace, during the time they were considered potentially infectious, the employer must provide notice.Notice to Employees of Potential Exposure: Notice must be provided to employees, subcontractors, and union representatives, who “may have been exposed” to COVID-19 in the workplace within one business day. The written notice may be provided by personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending. The notice must be provided in English and the language understood by the majority of employees.The notice cannot include the disclosure of any personally identifiable information (name) or personal health information.AB 685 defines a “qualifying individual” as any person who has any of the following:
A laboratory-confirmed case of COVID-19;
A positive COVID-19 diagnosis from a licensed health care provider;
A COVID-19-related order to isolate provided by a public health official; or
Died due to COVID-19, as determined by a county public health department or per inclusion in a county’s COVID-19 statistics.
For employers with multiple buildings and/or the business occupies several floors, the notice does not necessarily need to be provided to employees throughout the entire operation – instead, notice can be limited to the specific “worksite” where the “qualifying individual” worked during the infectious period. (However, employers may choose to provide notice to all employees that an employee did test positive for COVID-19 in the workplace to encourage employees to be vigilant and to monitor their own health. Remember however that any such notice cannot disclose the identity of the employee who tested positive).
Additional Notice Requirements:
A. Notice of Available Benefits: Notice must be given to employees pertaining to COVID-19 related benefits that employees may be entitled under applicable federal, state, and local laws, such as FFCRA supplemental paid sick leave, paid family leave, state/local paid sick leave, workers compensation benefits, and must reaffirm the employer’s policies prohibiting discrimination and retaliation in the workplace.
B. Implementation of Cleaning & Safety Protocols: Notice should be provided to employees providing information regarding the employer’s disinfection and safety plan in response to COVID-19 exposure, per CDC guidelines.
C. Documentation & Record of Notice: Employers must maintain records of the notifications for at least three years. Failure to comply with these notice requirements can result in civil penalties to the employer.
D. Employer Process and Protocols: To comply with the reporting requirement, employers must develop and implement a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19.
Notice to Cal-OSHA: Employers must also notify Cal-OSHA of a COVID-19 case that meets the definition of a “serious occupational injury or illness” The report must be submitted within one business day of learning that there has been a potential exposure of COVID-19 in the workplace. Employers may be required to undertake an assessment of the COVID-19 potential exposure occurrence to determine whether reporting on the case is required under Cal-OSHA regulations.
Cal-OSHA Enforcement: Cal-OSHA is authorized, when in its opinion there is a risk of infection to COVID-19 so severe as to constitute an imminent hazard, to issue Orders Prohibiting Use (OPU) (aka Stop Work Orders) to shut down operations and prevent entry into the workplace. Cal-OSHA is also authorized to issue citations for serious violations related to COVID-19 without requiring the agency to comply with its standard pre-citation requirements. Cal-OSHA can also require the posting of an imminent hazard notice at the worksite.
Report to Local Public Health: Employers are also required to notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak,” as defined by the California Department of Public Health. An “outbreak” currently is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
The notice to the public health department should include the number of COVID-19 cases at the worksite, the names, occupations, and worksites of qualifying individuals. Employers required to report an outbreak must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
For a COVID-19-related death, the employer must provide notification to the local health department of the names, numbers, occupation, and worksite of employees who died due to a COVID-19 exposure. An employer shall also report the business address and North American Industry Classification System (NAICS) code of the worksite where the COVID-19-positive employee worked. An employer with an outbreak subject to this section shall continue to provide notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
WORKERS’ COMPENSATION PRESUMPTION OF COMPENSABLE INJURY
On September 17, 2020 another bill was signed by Governor Newsom (SB 1159) expanding the ability of certain workers to obtain workers compensation benefits based on a presumption that if they tested positive for COVID-19 they were “injured” at work, similar to the presumption which was the subject of the Governor’s Executive Order N-62-20. As the presumption in the Executive Order expired on July 5th it was unclear how these cases would be handled moving forward.
Under SB 1159, if an employee suffers an “injury” in the workplace related to COVID-19, a rebuttable presumption is created that the illness arose in the course of employment and is therefore compensable under workers’ compensation laws. The definition of “injury” includes illness or death resulting from COVID-19 for any injuries beginning on July 5, 2020, through January 1, 2023.
The new law was passed as an emergency measure, so it is effective immediately, and requires all employers with 5 or more employees to provide their workers’ compensation carrier with information about employees who tested positive for COVID-19 since July 6, 2020 within the next thirty days.
Who Is A Covered Employee Under SB 1159
A. First Responders & Health Care Professionals: The presumption of a compensable injury applies to specific first responders and health care professionals if they test positive on or after July 6, 2020 and within 14 days after their last day of work. Testing must be under a PCR test and does not include employees working from home, except for providers of home supportive services.
Specifically, this applies to (1) active firefighting members, (2) peace officers, (3) fire and rescue service coordinators, (4) employees who provide direct patient care, or custodial employees in contact with COVID-19 patients who work at a health care facility, (5) authorized registered nurses, (6) emergency medical technicians-I,-II, and paramedics, (7) employees who provide direct patient care for home health agencies, (8) other employees of health facilities other than those described under No. 4 above, unless the employer can establish that the employee had no contact with a COVID-19 positive patient in the previous 14 days, and (9) providers of in-home supportive services when they provide services outside of their own home.
B. All other employees who test positive during an “outbreak” at the employee’s specific place of employment after July 5, 2020 where the employer has 5 or more employees.
If an employee is a covered employee, the presumption that the injury arose in the workplace still only attaches if:
the employee tests positive for COVID-19 within 14 days of performing labor or services at the employee’s place of employment and at the direction of the employer;
the last date the employee worked before the positive test was on or after July 6, 2020; and
the test occurred during a period of outbreak at the specific place of employment, defined as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.”
Rebutting the Presumption
To be entitled to the presumption, an employee diagnosed with COVID-19 must have had the diagnosis confirmed by testing within 30 days of the diagnosis. Unless rebutted, this presumption creates a compensable injury for purposes of qualifying for workers’ compensation benefits.
The presumption may be denied and disputed by the employer within 30 days if the injury took place before July 6, 2020, or within 45 days if the injury took place after July 6, 2020, unless the employee is an essential employee, in which case the 30 day denial period exists regardless of the injury date.
For persons working in healthcare or in public safety positions to qualify for the presumption, they must only test positive for COVID-19 within 14 days of performing services at their place of employment on or after July 6, 2020 (regardless of whether there has been an “outbreak”).
What Is An “Outbreak”?
For purposes of this new law, an “outbreak” is when, within 14 days, any of the following occurs at a place of employment:
The employer has 100 employees or fewer at a specific place of employment, and four employees test positive for COVID-19.
The employer has more than 100 employees at a specific place of employment, and 4% of the workforce at that place test positive for COVID-19.
A specific place of employment is ordered closed because of COVID-19.
**Note that this definition of “outbreak” is different than the Dept. of Public Health which defines outbreak as 3 or more occurrences within a 14 day period of time and is specific to this workers’ compensation presumption.
A “specific place of employment” is defined as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” The employee’s home or residence is excluded unless the employee provides home health care services to another individual at the employee’s home or residence. (And, if that is the case, the home office must be the exclusive location where the employee performs their work.)
Yes More Reporting Requirements!
SB 1159 also creates reporting requirements when an employer that “knows or reasonably should know” that an employee has tested positive for COVID-19. The employer must report to the workers’ claims administrator in writing—via email or fax—all of the following within three business days:
An employee has tested positive. But the employer must not reveal any personally identifiable information about the employee unless the employee has asserted the infection is work-related or has filed a claim form pursuant to Section 5401.
The date that the employee tested positive, which is the date the specimen was collected for testing.
The specific address of the specific place of employment during the 14-day period preceding the date of the positive test.
The highest number of employees who reported to work at the specific place of employment during the 45-day period preceding the last day the employee worked at each specific place of employment.”
Employers also must retroactively report to their carriers any employees who tested positive on or after July 6, 2020, and prior to September 17, 2020.
Employers that intentionally submit false or misleading information or fail to submit information when reporting can trigger civil penalties in amounts up to $10,000.
DISCLAIMER: Please note, the above is not an exhaustive list of all the changes to the law or resources for individuals and businesses. These new laws bring new challenges that often need to be handled on a case-by-case basis. Given the current fluid and rapidly evolving nature of the COVID-19 pandemic, this memo is provided solely as a reference tool to be used for informational purposes and is subject to change based on evolving information and it should not be construed or interpreted as providing legal advice related to any specific case or cases.
This information is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.