Governor Newsom Signs New COVID-19 Bills Into Law, Expands California Family Leave Rights Act

September 21, 2020

California Governor Gavin Newsom signed into law three significant pieces of legislation this past week. AB 685 adds specific notification requirements for employers with respect to incidents of potential COVID-19 exposure in the workplace. SB 1159 codifies the Governor’s Executive Order N-62-20 that created a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at the workplace for workers’ compensation purposes. In addition, SB 1383 significantly expands the California Family Rights Leave Act (CFRA), by extending its applicability to employers with 5 or more employees and expanding the list of family members whom an employee could take leave for, impacting both large and small employers alike.

Summaries of these three new laws follow.

Employer Reporting of Proposed COVID-19 Exposure (AB 685) - Effective January 1, 2021

According to the bill’s author, AB 685 “creates clear simple guidelines for what an employer should do when he or she is informed that someone at the worksite has tested positive or been diagnosed with COVID-19.” The bill also enhances the Division of Occupational Health and Safety (Cal/OSHA)’s ability to enforce health and safety standards to prevent workplace exposure to and spread of, COVID-19. AB 865 becomes effective January 1, 2021 and remains in effect until January 1, 2023.

Notice to Impacted Employees

Who Must be Notified: Upon receiving a “notice of potential [COVID-19] exposure” from a “Qualifying Individual”, within one business day, the employer must notify those employees, their union representative, and employers of any subcontracted employees, who were on the “worksite” with the qualifying individual. That said, the terminology used in the law is unclear as to whether a larger classification of employees must also receive a Notice with respect to certain content requirements under the law.

The terms “notice of potential exposure”, “qualifying individual” and “worksite” are defined as follows:

• “Notice of potential exposure” includes receipt of any of the following: (1) notice from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite; (2) notice from an employee or their emergency contact that the employee is a qualifying individual; (3) notice through the testing protocol of the employer that the employee is a qualifying individual; or (4) notice from a subcontracted employer that a qualifying individual was on the worksite.
• “Qualifying individual” means any person who has any of the following: (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 order to isolate provided by a public health official, or (4) a person who died due to COVID-19.
• "Worksite" means, in general, the location(s) where a worker worked during the infectious period and not to buildings, floors, or other locations where the qualifying individual did not enter.

Content of Notice: The Notice must include information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections accorded the employee. The Notice should also tell workers of the disinfection and safety measures that will be taken at the worksite in response to the potential exposure.

Means of Distribution: The Notice must be provided in the manner normally used by the employer to communicate employment related information, and may include personal service, email, 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 both in English and the language understood by the majority of the employees.

Notice to Local Public Health Department

In addition, if an outbreak occurs at the worksite (defined as three or more laboratory-confirmed cases of COVID-19 among employees within a 14-day period), the local public health department must be notified within 48 hours. The employer must also continue to notify the local public health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. Health facilities are generally exempt from the reporting requirement.

For additional information on AB 685, visit the Cal/OSHA website.

COVID-19 Impact On Workers' Compensation Claims (SB 1159) - Effective September 17, 2020

SB 1159 amends California’s workers’ compensation law to create a presumption that COVID-19 is a compensable, work-related condition under certain circumstances. In general, this means that it is an employer’s burden to prove that an employee did not contract COVID-19 on the job, rather than the employee’s burden of proving that he or she did contract it on the job.

A similar presumption was previously implemented under Executive Order N-62-20, but that had only applied for employees who worked outside their homes between March 19, 2020 and July 5, 2020. With some modifications, the new law adopts and expands that order to cover certain employees through January 1, 2023. It also creates retroactive and ongoing reporting requirements for employers with five or more employees in the state. SB 1159 took effect on September 17, 2020. Its requirements will sunset on January 1, 2023.

Disputable presumption: The bill creates a disputable presumption that a COVID-19 related injury arises out of and in the course of the employment and is presumed to be compensable.

1. SB 1159 creates a new presumption that COVID-19 is compensable for the following categories of workers, if they test positive for COVID-19 within 14 days after working at a place of employment (not including their own homes), at an employers’ direction, on or after July 6, 2020:
• Active firefighting members (including volunteers) of various, local, state and federal fire departments;
• Peace officers who primarily engage in active law enforcement activities;
• Fire and rescue services coordinators who work for the Office of Emergency Services;
• Health facility workers who provide direct patient care to or come into contact with COVID-19 patients;
• Certain registered nurses, emergency medical technicians, and emergency medical technician-paramedics;
• Workers who provide direct patient care for a home health agency; and
• Workers who provide in-home supportive services outside their own homes.
2. SB 1159 also extends the presumption to any other employee who tests positive for COVID-19 within 14 days after working at a place of employment other than their own home, at an employers’ direction, on or after July 6, 2020, if:
• The employer has five or more employees; and
• The employee tests positive during an outbreak at the employee’s specific place of employment. For this purpose, an “outbreak” exists when either one of the following events occur:
• Four employees at a specific workplace test positive for COVID-19 within a 14-day period, if the employer has 100 employees or fewer at that workplace;
• Four percent of the employees who reported to a specific workplace test positive for COVID-19 within a 14-day period, if the employer has more than 100 employees at that workplace; or
• A specific workplace is ordered to close by a local or state public health authority due to COVID-19-related risk.

This presumption can be rebutted by providing proof of other evidence, including, but not limited to, providing evidence of measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection. If liability for the claim is not rejected within 45 days after the date the workers’ compensation claim form was filed, the illness is presumed compensable, rebuttable only by evidence discovered subsequent to the 45-day period. This 45-day period is 30 days for claims filed prior to July 6, 2020, and for those specific categories of workers indicated in #1 above.

Fully compensable benefits: Full hospital, surgical, medical treatment, disability indemnity, and death benefits.

Temporary disability benefits: An employee must exhaust any COVID-19 related paid sick leave benefits before receiving any temporary disability benefits. There is no waiting period - benefits will be provided from the date of disability.

If the employee tests positive or is diagnosed with COVID-19 on or after May 6, 2020, the employee must be certified for temporary disability by a physician within the first 15 days after the initial diagnosis, and recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. If the employee had tested positive or was diagnosed with COVID-19 before May 6, 2020, the employee needed to have been certified by May 21, 2020, and the period for which the employee was temporarily disabled and unable to work must have been documented. He or she needed to also have been recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

Reporting Requirement: SB 1159 imposes two new reporting requirements on employers that have five or more employees in the state. These requirements aim to help the workers’ compensation claims administrator determine if an outbreak exists for purposes of administering an employee’s claim.

The first requirement is retroactive. Specifically, if an employer is aware that an employee tested positive for COVID-19 between July 6, 2020, and September 17, 2020, SB 1159’s effective date, the employer is required to file a written report with its workers' compensation claims administrator within 30 business days after the effective date.

The second requirement is ongoing and applies any time an employer knows or reasonably should know that an employee has tested positive for COVID-19 after September 17, 2020. When this occurs, the employer must submit a written report to its workers’ compensation claims administrator within three business days.

The employer must notify the workers’ compensation claims administrator in writing via electronic mail or facsimile. The following information must be included:

• That an employee tested positive. Note that the employer must not include any personally identifiable information regarding the employee unless he or she asserts the infection is work-related or has filed a workers’ compensation claim form.
• The date that the employee tested positive, which is the date the specimen was collected for testing.
• The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
• The highest number of employees who reported to work at the employee’s specific place of employment either (1) on any given work day between July 6, 2020, and September 17, 2020 (for the retroactive reporting requirement); or (2) in the 45-day period before the last day the employee worked at each specific place of employment (for the ongoing reporting requirement).

If an employee works in multiple places at the employer’s direction and tests positive for COVID-19 within 14 days after last working in any of those locations (other than his or her own home), the employer must count that as a positive test for each of those workplaces. In addition, any location where an outbreak does exist would be considered the employee’s “specific place of employment.”

Civil penalties of up to $10,000 may be assessed if an employer fails to file these reports or intentionally submits false or misleading information on them.

CFRA Expansion (SB 1383) - Effective January 1, 2021

A third important piece of legislation that was signed into law this past week was SB 1383. SB 1383 significantly changes the CFRA in several ways:

• It is now applicable to employers with 5 or more employees (versus 50 or more employees in the present law).
• The law was expanded to permit eligible employees to use unpaid job protected leave to care for a domestic partner (meeting all the requirements of a domestic partner under California Family Code Section 297), grandparent, grandchild, sibling, or parent-in-law who has a serious health condition.
• The definition of “child” is amended to include a child of a domestic partner.
• Where both parents work for the same employer, SB 1383 deletes current provisions in the CFRA that gives the employer the option of limiting leave for both parents to a total of 12 weeks when the leave is for a birth, adoption, or foster care placement of a child. As a result, each parent is now entitled to 12 weeks of leave for these reasons.
• An employer may no longer refuse reinstatement to the highest 10 percent paid employees to prevent substantial and grievous economic injury to the company.
• In addition, the New Parent Act Leave (NPL), codified in Government Code Section 12945.6, was repealed. The NPL requires that an employer with at least 20 employees must offer 12 weeks of unpaid leave to workers to bond with a new child. An employee may not take more than 12 weeks of unpaid leave in a one-year period. With the SB 1159 amendments, the NPL is no longer necessary.

As a result of these changes, in some instances, the CFRA may no longer coordinate with leave taken under the federal Family and Medical Leave Act (FMLA), adding to leave administration complexity, and the potential for an employee to qualify for leave under each law in certain circumstances.

These changes made by SB 1383 become effective January 1, 2021.

For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949-833-2983 or inquiries@burnhambenefits.com. For up-to-date information on COVID-19, please also visit our dedicated Response Center at burnhambenefits.com/covid-19.

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