October 24, 2020

Volume X, Number 298

Advertisement

October 23, 2020

Subscribe to Latest Legal News and Analysis

October 22, 2020

Subscribe to Latest Legal News and Analysis

October 21, 2020

Subscribe to Latest Legal News and Analysis

California Requires Employers To Notify Workers Regarding COVID-19 Exposure, Expands Other Protections

Highlights

A pair of new California laws add COVID-19 reporting obligations for employers and expand workers’ compensation presumptions

AB 685 makes certain COVID-19 outbreaks reportable to CAL-OSHA

SB 1159 codifies and refines the earlier presumption of workers’ compensation coverage for covered employees who contract COVID-19

In another move to combat the impact of COVID-19 on businesses, effective Sept. 17, 2020, California’s Gov. Gavin Newsom signed two bills expanding employee protections related to COVID-19. 

California Assembly Bill (AB) 685 requires employers to provide employees with notice that they may have been exposed to COVID-19 within one business day. And SB 1159 expands first responders’ workers’ compensation access, due to the pandemic. 

According to the governor, “Protecting workers is critical to slowing the spread of this virus” and the new legislation “will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”

New Notice Requirements for Potential Employee COVID-19 Exposure

AB 685 obliges employers to report COVID-19 cases that meet the definition of a “serious occupational injury or illness” to employees and the California Division of Occupational Safety and Health (Cal OSHA). This notice requirement presupposes that employers have both a process for employees to report potential COVID-19 exposure and the ability to determine whether Cal OSHA regulations require reporting of a particular case.

Specifically, the law says employers who have notice of a potential COVID-19 exposure must provide written notice to permanent and subcontractor employees who were at the worksite at the same time as a potentially infected person. Notice to the employees’ exclusive representative (if any) also is required. Employers must provide the notice, via a method typically used to communicate employment-related information, within one business day of learning of a possible COVID-19 exposure. 

The notice should protect employee privacy, identity and personal health data. It must also inform the recipient of COVID-19 sick pay and leave benefits and the employer’s implemented and/or planned disinfection and safety plan (per guidance from the Centers for Disease Control and Prevention). 

With regard to Cal OSHA, the new law authorizes the agency to act when, “in its opinion,” employees’ exposure to COVID-19 in the workplace is an “imminent hazard.” The agency may issue citations, bar access to the worksite, shut down operations, and require employer postings disclosing an imminent hazard. 

Employers also must contact their local public health department if the number of COVID-19 cases about which the employer knows constitutes a COVID-19 outbreak, as defined by the California State Department of Public Health. In this instance, employers have 48 hours to notify the public health department and must be prepared to provide it with the number of COVID-19 cases at the workplace, employee names, and other pertinent information. 

Employers are required to maintain records of written notifications for at least three years, according to the new law.

Expanding Workers’ Compensation for Frontline Workers and Notice Requirements

SB 1159 expands access to workers’ compensation by making it easier for first responders, healthcare workers, and other employees who test positive for COVID-19 due to a workplace outbreak to receive workers’ compensation benefits. It also imposes significant notice requirements on employers. These provisions, codified as Labor Code Sections 3212.86-3212.88, are effective immediately as urgent legislation.

Disputable Presumption of Workers’ Compensation Coverage

The new law creates a presumption that illness or death resulting from contracting COVID-19 arose out of and in the course and scope of employment. This presumption applies to employees 1) who test positive during a COVID-19 outbreak at their “specific place of employment” and 2) whose employer has at least five employees. A “specific place of employment” excludes an employee’s home or residence (unless the employee performs home health care services at a home or residence). 

In addition:

  • The employee must test positive for COVID-19 within 14 days after a day the employee worked at their specific place of employment at the employer’s direction.
     
  • The day of work must have been on or after July 6, 2020, which must be the last date the employee worked before the positive test.

Under Labor Code Section 3212.88, an “outbreak” exists if, within 14 calendar days, one of the following occurs at a specific place of employment:

  • Of 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19
     
  • Of more than 100 employees at a specific place of employment, 4 percent of employees positive for COVID-19
     
  • A local public health agency, the state Department of Public Health, Cal OSHA or a school superintendent orders a specific place of employment closed due to the risk of infection with COVID-19

An employer may dispute the presumption with evidence that 1) it implemented measures to reduce potential COVID-19 transmission at the worksite, 2) the employee had non-occupational risks of COVID-19 infection, 3) the employee made damaging statements, and 4) any other evidence that an employer normally uses to dispute an alleged work-related injury. The current “disputable presumption” is in effect from July 6, 2020, through Jan. 1, 2023.

Notification to Workers’ Compensation Carriers

If the injury occurred before July 6, 2020, or the employee is an essential worker under Labor Code Section 3212.87 (including certain firefighters, peace officers, frontline healthcare providers and facility workers), employers with at least five employees must, within the next 30 days, provide their workers’ compensation carrier with information about employees who tested positive for COVID-19. From there, the claim administrator has 30 days to deny the claim. 

If the injury occurred after July 6, 2020, then the claim administrator has 45 days to deny the claim. 

Absent a timely denial, the injury is presumably compensable, a presumption that may be rebutted only with evidence discovered after the investigation or denial period. 

It is essential that employers comply with these reporting requirements, as the new law includes a steep penalty for any employer that “intentionally submits false or misleading information or fails to submit information.”

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 269
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Scott Witlin Employment lawyer Barnes Thornburg
Partner

Scott J. Witlin is a partner and the administrator of the Labor & Employment Department in the firm's Los Angeles office. He is Co-Chair of the firm's Wage and Hour Practice Group and a member of the firm's Entertainment, Media and Sports Practice Group.

Scott assists companies in dealing with the challenges of employing workers in California and throughout the U.S. Scott's practice includes both traditional labor and employment law matters, including wage and hour class actions, arbitrations, collective bargaining negotiations, compliance with various guild and union agreements...

310-284-3777
Sana Swe Employment Attorney Barnes & Thornburg Los Angeles, CA
Of Counsel

Sana leverages her first-hand knowledge of both sides of the employer-employee relationship to help clients navigate a range of issues and challenges. She routinely advises clients regarding employment matters arising from mergers, acquisitions, layoffs and reorganizations, and potential liability resulting from employment practices, policies, and actual and threatened litigation.

Sana represents clients in an array of employment-related areas, including unlawful discrimination, harassment, and retaliation, family and medical leaves of absence under state and federal law, disability and pregnancy accommodation, whistleblower actions, wrongful termination, wage and hour, breach of contract, trade secrets, non-solicitation, and unfair competition. In addition to drafting policies, procedures, and position statements, Sana manages virtually all phases of individual, representative and class-action litigation.

Working closely with in-house human resources and legal professionals, Sana counsels on compliance, litigation, and investigation inquiries from outside state and federal agencies, including the Department of Fair Employment & Housing (DFEH), the Equal Employment Opportunity Commission (EEOC), the Division of Labor Standards Enforcement (DLSE), the Department of Labor (DOL), and the Office of Federal Contract Compliance Programs (OFCCP). Additionally, she trains client workforces, including executives, regarding legal rights and responsibilities in the workplace.

Clients respect Sana for her ability to digest business-specific issues in employment cases while navigating their human elements and to work effectively with human resources professionals, business leaders, and decision-makers at the highest levels of corporate management.

Before joining Barnes & Thornburg, in her own private practice and as an employment law partner in a global firm, Sana’s overriding goal has been to help clients avoid, if possible, and resolve employment law issues so they may focus on their business pursuits.

424-239-3753
John Koenig, Barnes Thornburg Law Firm, Atlanta and Indianapolis, Labor and Employment Law Attorney
Partner

John T.L. Koenig is a partner in the Labor & Employment Department of Barnes & Thornburg LLP. He maintains a national, full-service practice representing management exclusively in all aspects of labor and employment law.

Traditional Labor

Mr. Koenig represents companies in the grievance and arbitration process, collective bargaining, strike preparation, union organizing and election matters, and in unfair labor practice and representational cases before the NLRB. He frequently trains supervisors on effective and...

404-264-4018
David B. Ritter Barnes Thornburg Law Firm Labor and Employment Law Attorney Chicago
Partner

David B. Ritter is a partner in the Chicago office of Barnes & Thornburg LLP. He is a member of the firm’s Labor & Employment Law Department and co-chairs the Logistics and Transportation Practice Group. He represents management nationwide in virtually all areas of labor and employment law, including employment discrimination and harassment claims, wage and hour disputes, non-compete, trade secret and restrictive covenants and employment torts.

With nearly 30 years of experience representing public and private companies, Mr. Ritter has...

312-214-4862
William A. Nolan Labor and Employment Law Attorney Barnes Thornburg Law Firm Columbus
Partner

William A. Nolan serves as the Managing Partner of Barnes & Thornburg LLP’s Columbus, Ohio, office, which he opened in 2009. He is a member of the firm’s Labor and Employment Law Department. Bill has extensive experience as a litigator, trial lawyer and counselor. His practice includes a broad range of issues that organizations face in our rapidly changing competitive, legal and workplace environments. In short, he works to help management structure organizations, practices and relationships to proactively minimize the business disruption of disputes, and to help clients prevail when...

614-628-1401
Advertisement
Advertisement