California Passes Two New Important Workplace COVID-19 Laws: Workers' Compensation Presumption and OSHA-Related Reporting

On September 17, 2020, California Governor Gavin Newsom signed two laws creating new or expanded obligations concerning COVID-19—Senate Bill (SB) 1159 and Assembly Bill (AB) 685. These new laws will require employers to review and update their practices concerning tracking and responding to positive tests to protect against potential liability.

SB 1159, which went into effect immediately, creates a presumption of workers' compensation coverage for employees who contract COVID-19 in the workplace in specified industries, and, in the case of an outbreak, for all employers. The law also imposes new reporting obligations for all employers.

AB 685, which goes into effect on January 1, 2021, increases potential Cal/OSHA exposure concerning COVID-19 by implementing new reporting requirements and eliminating the need for advance notice of potential Serious and Willful violations.

SB 1159: Workers' Compensation Presumption and Notice to Claims Administrator Concerning Positive Tests

SB 1159 declares that it will be presumed under the law that an employee contracted COVID-19 at the workplace—and is therefore entitled to workers' compensation coverage absent evidence that the employee contracted the virus elsewhere—in the following circumstances:

• (1) If an employee tested positive for, or was diagnosed with ,COVID-19 within 14 days of working onsite for an employer between March 19, 2020 and July 5, 2020.
  
  • The diagnosis must have been made by a licensed physician and surgeon or state licensed physician assistant or nurse practitioner, acting under the review or supervision of a physician and surgeon, and confirmed by testing or by a COVID-19 serologic test within 30 days of the diagnosis.
  • This section codifies Governor Newsom's prior Executive Order. (Read our prior advisory on that order here.)
• (2) If a firefighter, peace officer, emergency medical technician, authorized registered nurse, a health facility or home health facility employee providing direct patient care, or a healthcare facility custodial services employee has come in contact with COVID-19 patients, tests positive for, or is diagnosed with, COVID-19 within 14 days of working onsite for an employer on or after July 6, 2020.
  
  • The positive result must have been done by a PCR (Polymerase Chain Reaction) test or any other test approved for use or approved for emergency use by the U.S. Food and Drug Administration to detect the presence of viral RNA.
  • Providers of in-home support services are subject to the presumption only if these services are provided outside the providers own residence or home.
  • Additional detail concerning specific positions and employers covered by the presumption after July 6, 2020 is provided in the statute, codified at new Labor Code section 3212.87 (a)(1)-(11).
• (3) If an employee tests positive for, or is diagnosed with, COVID-19 within 14 days of working onsite for an employer on or after July 6, 2020, and the positive test occurred during an "outbreak" at the employee's place of employment.
  
  • This section applies to employers with five or more employees.
  • An "outbreak" exists if within 14 calendar days one of the following occurs at a specific place of employment: (1) four employees test positive for COVID-19 at a specific place of employment with 100 employees or fewer; (2) 4 percent of employees test positive for COVID-19 at a specific place of employment with more than 100 employees; or (3) the facility is ordered closed by a local public health department, the State Department of Public Health, Cal/OSHA, or a school superintendent due to a risk of infection with COVID-19.
  • The positive result must have been done by a PCR (Polymerase Chain Reaction) test or any other test approved for use or approved for emergency use by the U.S. Food and Drug Administration to detect the presence of viral RNA.
  • Evidence relevant to rebutting the presumption may include, but is not limited to, evidence of measures in place to reduce the potential transmission of COVID-19 and evidence of employee's non occupational risks of COVID-19 infection.

In order to track whether an "outbreak" has occurred, the law also provides for a new notification requirement concerning positive tests. Within three business days of notification of a positive COVID-19 test, an employer must report the following to its workers' compensation claims administrator in writing, via electronic mail or facsimile:

• (1) An employee has tested positive (no personally identifiable information should be transmitted unless the employee has filed a workers' compensation claim);
• (2) The date the employee tested positive;
• (3) The address of the employee's place of employment during the 14 days before the positive test; and
• (4) The highest number of employees who reported to work at the employee's place of employment in the 45 days preceding the last day the employee worked at the place of employment.

The new law is unclear whether this obligation also applies to employees who have tested positive and who are working remotely (and who have not entered the employer's workplace during the relevant period), even though the presumption only applies to those who leave home to work. Employers should work with their claims administrator on this issue and continue to monitor subsequent guidance on this issue.

This same information must be provided to an employer's workers' compensation claims administrator by October 29, 2020, (30 business days from date of enactment of statute) for any positive tests from July 6, 2020, to September 17, 2020. For the information provided in Section (4), an employer must report the highest number of employees who reported to work at each of the employee's places of employment on any given work day between July 6, 2020, and September 17, 2020.

The statute also declares a civil penalty of $10,000 for intentionally submitting false or misleading information or failing to report the required information, and mandates that employees must exhaust paid sick leave benefits and meet certification requirements before receiving temporary disability benefits (or a leave of absence for peace officers, firefighters and other specified employees). SB 1159 remains in effect until January 1, 2023 or the date it is repealed.

Employers should keep in mind that SB 1159's presumption that COVID-19 was contracted at work is with regard to workers' compensation determinations. SB 1159 does not extend to reporting obligations for purposes of Cal/OSHA reporting. Cal/OSHA requires employers to report instances of COVID-19-related employee hospitalizations or deaths within eight hours of learning of the hospitalization or death, but only if the cases "occur[] in a place of employment or in connection with any employment."

The California Division of Occupational Safety and Health has interpreted this requirement as being satisfied if an employee becomes ill at the workplace or if there is cause to believe a case of COVID-19 is work related. While the circumstances triggering the SB 1159 presumption may also indicate a case is reportable under the Cal/OSHA rubric, the two determinations must be made independently.

Key Takeaways: All California employers who have had employees working at a place other than the employees' homes since March 19, 2020, should make sure that they report any positive COVID-19 tests to their workers' compensation claims administrator. In addition, employers should work closely with their claims administrator to make sure they are providing all applicable information to employees, including, but not limited to, workers' compensation claim forms.

Most importantly, California employers should make sure they are following all COVID-19 safety precautions and keeping records of those efforts, in the event they need to rebut a presumption of workers' compensation coverage.

AB 685: COVID-19 Notifications to Employees and Public Health Authorities

Notification to Employees

AB 685 requires private and public employers to provide written notice of potential exposure to COVID-19 to all employees and subcontractors (and their union representatives) who were on the worksite premises during a "qualified person's" infection period.¹ A qualified person is another employee who meets one of the following criteria:

• (1) A laboratory confirmation of COVID-19, as defined by the State Department of Public Health;
• (2) A positive COVID-19 diagnosis from a licensed healthcare provider;
• (3) A COVID-19 related order to isolate provided by a public health official; or
• (4) Died due to COVID-19, in the determination of a county public health department or per inclusion in COVID-19 statistics of a county.

This notice of potential exposure must be provided within one business day of the employer learning of the potential exposure. This one-day period is triggered if the employer learns of the potential exposure from the employee, the employee's emergency contact, a public health official or licensed medical provider, or through the employer's COVID-19 testing protocols (if applicable). The notice of potential exposure must:

• Communicate in English and the language understood by the majority of employees that they may have been exposed to COVID-19 [Note: This written communication should be in a manner the employer normally uses to communicate with employees and may include email or text];
• Provide information regarding COVID-19-related benefits and options, including, but not limited to, workers' compensation, COVID-19 related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti retaliation and antidiscrimination protections; and
• The disinfection and safety plan that the employer plans to implement and complete per CDC guidelines.
  
  • The law specifically mandates that the notification to the union must include the same information required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is unknown to the employer.
  • The law requires an employer to maintain records of notifications for at least three years.

Violation of AB 685's employee notice provisions may result in a workplace health and safety citation from the California Division of Occupational Safety and Health (Cal/OSHA). Under current law, Cal/OSHA must provide an employer with a "Notice of Intent to Classify Citation as Serious" and 15 days to respond before issuing a serious citation.

AB 685 exempts Cal/OSHA from this requirement with regard to employee notice violations. Moreover, AB 685 authorizes Cal/OSHA to close a facility if there is an "immediate hazard" in the workplace related to the transmission of COVID-19.

Notification to Public Health Authorities

In addition, the law requires employers or union representatives to notify the local public health agency if there is an "outbreak" at the place of employment. The notification must be provided within 48 hours of learning of the outbreak and must include: the names, number, occupation and addresses (and NAICS codes) of the worksites of all employees who are "qualified people" (as defined above). Once there is an outbreak, the employer must continue to notify the local health department of subsequent COVID-19 cases in the workplace.

• "Outbreak" is currently defined by State Department of Public Health as "three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households." However, because AB 685's definition of outbreak is keyed to how the term is used by the State Department of Public Health, any change in the State Department of Public Health's use of the term will change the application of AB 685.

The law requires the State Department of Public Health to publicly post information related to employer outbreaks.

The law is in effect until January 1, 2023.

Key Takeaways: California employers should immediately update their policies and procedures to meet the requirements of AB 685 and create or update template notification for employees and the public health department. Employers who have collective bargaining relationships with unions will also need to evaluate when, and in what manner, these notices will be provided to unions to comply with these new obligations and also protect any applicable privacy interests.

FOOTNOTES

1 Per the State Department of Public Health, a COVID-19-confirmed indiviudal's infectious period begins 48 hours before symptom onset. The State Department of Public Health further directs that a COVID-19-confirmed individual should remain isolated until all three of the following criteria are satisfied: (1) 10 days have passed from symptom onset; (2) 24 hours of no fever without the aid of fever-reducing medications; and (3) other symptoms have improved. However, the 10 day period in item (1) may be extended up to 20 days if the COVID-19-confirmed individual experienced severe illness or is severely immunocompromised.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.