Q: Is there new legislation that expands COVID-19 protections to California employees?
A: Since the beginning of 2020, employers have had to make significant changes to their operations due to an increasing number of newly enacted legislation and requirements in response to the COVID-19 pandemic. As we enter the final quarter of 2020, California employers must again quickly respond to new legislation that expands COVID-19 protections to California employees and imposes stringent requirements on California employers. This month, California Governor Gavin Newsom signed three COVID-19-related bills into law that affect employee rights: (1) SB 1159, (2) AB 659, and (3) AB 1867.
Senate Bill 1159: “Workers’ Compensation: COVID-19”
Effective immediately for California employers with 5 or more employees, Senate Bill 1159 creates a presumption of entitlement to workers’ compensation benefits for employees infected with COVID-19 if:
- The employee tested positive for or was diagnosed with COVID-19 within 14 days after performing labor or services at the employee’s “place of employment” (excluding the employee’s residence) at the employer’s direction; and
- The employee tests positive during an “outbreak” at the specific place of employment (as determined by the employer’s claims administrator).
Senate Bill 1159 extended Governor Newsom’s previously issued Executive Order N-62-20, which created a presumption of workplace injury if an employee tested positive for or was diagnosed with COVID-19 within 14 days of working at the employee’s place of employment. The Executive Order expired on July 5, and Senate Bill 1159 extends the presumption to injuries occurring on July 6 through January 1, 2023.
The bill creates Labor Code Section 3212.88, which sets forth the following circumstances of an “outbreak” if they occur within 14 calendar days at the place of employment:
- If 4 employees test positive for COVID-19 at a place of employment with 100 employees or fewer;
- If 4% of employees test positive for COVID-19, at a place of employment with more than 100 employees; or
- A 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 risk of infection with COVID-19.
For purposes of determining whether an “outbreak” has occurred, SB 1159 also imposes reporting requirements when an employer “knows or reasonably should know that an employee has tested positive for COVID-19.” Depending on the date of injury, employers must provide written notice via email or facsimile to their workers’ compensation claims administrator within three (3) business days that includes all of the following:
- The fact that an employee has tested positive (employers shall only provide personally identifiable information if the employee asserts that the infection is work related or has filed a workers’ compensation claim form);
- The date the employee tested positive (eg., the date the specimen was collected for testing);
- The address(es) of the employee’s place of employment during the 14-day period preceding the positive test; and
- The highest number of employees who reported to work at the place of employment in the 45 days (or on any given day between July 6 and September 17 if the injury falls within those dates) prior to the last day the employee worked at each place of employment.
Failure to meet reporting obligations or providing false or misleading information could result in civil penalties of up to $10,000.00.
Senate Bill 1159 also shortens the period under which employers must accept or reject liability for COVID-19 workers’ compensation claims from 90 days to 45 or 30 days, depending on the type of employee. If an employer fails to make the determination within the prescribed timeframe, the injury will be presumptively compensable.
In addition to documenting COVID-19 prevention practices and maintaining records of employee positive COVID-19 tests, employers should develop accurate, reliable means to track employee work locations and assignments to satisfy reporting obligations and to defend against COVID-19 workers’ compensation claims. Upon learning of an employee’s positive test or diagnosis, employers should develop processes to investigate an employee’s potential exposure outside of the workplace in order to defend against the presumption of injury, while also balancing employee privacy interests.
Assembly Bill 685: “COVID-19: Imminent Hazard to Employees — Exposure, Notification, Serious Violations”
On September 17, Governor Newsom also signed Assembly Bill 685, effective January 1, 2021, which:
- Requires employers to provide written notice within one (1) business day to all employees, employers of subcontracted employees, and employee representatives when an employer has “notice of a potential COVID-19 exposure” in the workplace, which includes:
- Notification from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- Notification from an employee, or their emergency contact, that the employee is a “qualifying individual”;
- Notification through an employer’s testing protocol that an employee is a “qualifying individual”; or
- Notification from a subcontracted employer that a “qualifying individual” was on the worksite of the employer receiving notification;
- Requires employers to notify local public health officials within 48 hours if the number of cases meets the State Department of Public Health’s definition of an “outbreak;”
- Eliminates the Cal/OSHA notice requirement prior to issuing a citation for a “serious violation” related to COVID-19; and
- Expands Cal/OSHA authority to limit operations if it determines that the COVID-19 exposure creates an imminent hazard.
Employers have some breathing room through the end of the year to develop prompt and reliable processes to satisfy AB 685’s demanding reporting obligations. During this interim period, employers should ensure that employee contact information is accurate and up to date, and they should prepare template communications to employees, employers of subcontracted employees, employee representatives, and local public health authorities so they are ready to comply with reporting obligations come January 1. In anticipation of workplace safety challenges, employers should also ensure that they have a written COVID-19 response plan that identifies potential risks, the steps taken to mitigate those risks, and consideration of applicable Cal/OSHA and public health authority guidance.
Assembly Bill 1867: “Small Employer Family Leave Mediation: Handwashing: Supplemental Paid Sick Leave”
The third new law, Assembly Bill 1867 (effective September 19), codifies Governor Newsom’s prior Executive Order N-51-20 related to food sector workers and expands protections to both food and nonfood sector workers of companies with 500 or more employees nationwide. Under Assembly Bill 1867, employers must provide COVID-19 Supplemental Paid Sick Leave (PSL) to eligible employees who must leave their home to perform work and cannot work because they are:
- Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
Subject to limited exceptions for certain firefighters, full-time employees who work or are scheduled to work at least 40 hours per week will receive up to 80 hours of COVID-19 Supplemental PSL. Part-time employees with regular hours are entitled to leave in the amount equal to the total hours normally worked or scheduled to work in a two-week period. COVID-19 Supplemental PSL is paid at the highest hourly rate of (1) the employee’s regular rate of pay for the last pay period; (2) state minimum wage; or (3) local minimum wage, but subject to a cap of $511 per day and $5,110 total.
AB 1867 also extends to healthcare providers employers and emergency responders regardless of the number of employees to the extent that they were excluded from Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA).
In addition, the new law allows an offset, or catch up, for any paid sick leave benefits related to COVID-19 provided prior to enactment. It also requires that employers (1) include information on available COVID-19 Supplemental PSL on employee wage statements and (2) post or disseminate the Labor Commissioner notice. The law also requires that employers permit food facility employees to wash their hands at least every 30 minutes)
Notice Requirements and Enforcement
AB 1867 authorizes the Labor Commissioner to enforce its provisions. Since the bill went into effect, the Labor Commissioner has issued a model notice that employers should either post in the workplace or electronically disseminate to employees by September 19 (10 days from enactment). The Labor Commissioner also issued supplemental guidance in FAQs addressing COVID-19 Supplemental PSL.
As the Labor Commissioner already may start to enforce AB 1867’s provisions beginning September 19, employers must act quickly to ensure that they satisfy notice and distribution requirements and promptly roll out their COVID-19 Supplemental PSL, while continuing to monitor the available guidance from the Labor Commissioner.
Please contact a Troutman Pepper Labor and Employment attorney for more guidance specific to your workplace and workforce, and visit the Troutman Pepper COVID-19 Resource Center for additional COVID-19-related news and developments.