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.
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:
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.
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.
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:
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.
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:
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 email@example.com. For up-to-date information on COVID-19, please also visit our dedicated Response Center at burnhambenefits.com/covid-19.
Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.