Calif. Governor Signs Employment Laws Related to COVID-19 Exposure

On September 17, 2020, California Governor Gavin Newsom signed into law two critical pieces of legislation. Assembly Bill (AB) 685, which imposes certain notification obligations on employers when one or more employees test positive for COVID-19, takes effect January 1, 2021. Senate Bill (SB) 1159 expands employees’ rights to workers’ compensation benefits and also imposes a significant new reporting deadline when an employee tests positive for COVID-19. SB 1159 takes effect immediately.

AB 685 Notice Requirements

Assembly Bill 685 imposes important notification requirements when employers discover that one or more employees have been diagnosed with COVID-19. More specifically, the new law sets forth the following notice requirements:

Within one (1) business day of a “potential exposure” based on a confirmed case of COVID-19 in a workplace, an employer must:

• Provide written notice to all employees, employers of subcontracted employees and employee representatives, including unions who were at the worksite within the infectious period who may have been exposed o COVID-19.

• Provide written notice to employees and/or their representatives regarding COVID-19-related benefits that employees may receive, including workers’ compensation benefits, COVID leave, paid sick leave and the employer’s anti-discrimination, anti-harassment and anti-retaliation policies.

• Provide notice to employees regard the employer’s disinfection protocols and safety plan.

Written notice under the law may be made by personal delivery, text message and/or email, provided that it can be reasonably anticipated to be received within one (1) business day. It must also be in English and the language understood by the majority of employees.

AB 685 also requires employers who have a sufficient number of COVID-19 positive cases that meet the definition of a COVID-19 outbreak (as defined by the Cal. State Dept. of Health), to report certain information to the employer’s local health agency within forty-eight (48) hours of learning of the outbreak.

The requirements of AB 685 do not apply when the employee(s) who test positive for COVID-19 work remotely. Again, AB 685 takes effect January 1, 2021.

SB 1159 – Disputable Presumption

SB 1159 has two important components related to employees who test positive for COVID-19. First, it creates a “disputable presumption” that an illness or death resulting from COVID-19 arose out of and in the course and scope of employment for workers’ compensation purposes. This presumption covers cases in which the worker tested positive from July 6, 2020 through January 1, 2023. Thereafter, the presumption will no longer apply.

In order for the presumption to apply: (1) the positive test for COVID-19 must occur within 14 days after a day that the employee worked at the employer’s place of employment; (2) the day of work was on or after July 6, 2020; and (3) the positive test must have occurred during a period of an outbreak at the employee’s place of employment.

Important for this presumption, an “outbreak” exists if, within 14 days, one of the following occurs at the place of employment: (1) if the employer has <100 employees at a specific site, 4 employees test positive for COVID-19; (2) if the employer has >100 employees, 4% of the employees test positive for COVID-19; (3) a specific place of employment is ordered to close by a local public health department, the State Dept. of Public Health, Div. of Occupational Safety and Health or a school superintendent due to a risk of infection with COVID-19.

SB 1159 – Reporting Requirements

SB 1159 also creates new reporting requirements. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report that fact to its workers’ compensation claims administrator within three (3) business days, via email or fax.

The information to be reported includes: (1) that an employee has tested positive (no personally identifiable information regarding the employee, unless he/she asserts the infection is work-related or has filed a claim); (2) the date the employee tested positive; (3) the address of the specific place of work during the 14-day period preceding the positive test; and (4) the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

What Employers Should Do Now

Employers should immediately become familiar with these new requirements. Employers with any questions about these new laws should contact their employment law professional.

The Law Offices of Alex Craigie helps employers throughout California prevent, address and resolve employment disputes in a logical and cost-effective manner. Reach us at (323) 652-9451, (805) 845-1752 or at [email protected].