California Expands Workers Compensation Coverage for COVID-19 Cases and Provides CAL OSHA With Greater Authority to Address Potential Exposures

A. Presumption of Workers’ Compensation Coverage for Certain COVID-19 Cases

New California legislation, SB 1159, expands the presumption of workers’ compensation liability for employees who contract COVID-19 due to a workplace outbreak. The bill, which applies to employers with 5 or more employees, was signed by Governor Newsom on September 17, 2020, and is effective immediately. The presumption applies to any employee who contracts COVID-19 between July 6, 2020 and January 1, 2023.

The Rebuttable Presumption

The presumption arises when the following events take place:

• The employee tests positive for or is diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment; and

• The positive test occurs during a period of an “outbreak” at the employee’s specific place of employment.

An “outbreak” exists if one of the following occurs within 14 calendar days:

1. The employer has 100 employees or fewer at a specific place of employment, and 4 employees test positive for COVID-19;
2. The employer has more than 100 employees at a specific place of employment, and 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19; or
3. A specific 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 a risk of infection with COVID-19.

The bill requires employees to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or, for police officers, firefighters, and other specified employees, a leave of absence. The bill also makes a claim relating to a COVID-19 illness presumptively compensable after 30 days or 45 days, rather than 90 days.

Disputing the Presumption

In the event that a presumption is established, an employer can dispute the presumption with evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s non-occupational risks of COVID-19 infection.

Reporting Requirements

SB1159 also imposes new reporting requirements on employers when they know or reasonably should know that an employee has tested positive for COVID-19. In particular, the employer must report to their claims administrator, in writing, within three business days all of the following:

1. That an employee has tested positive. For purposes of this reporting, the employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19, unless the employee asserts the infection is work-related or has filed a claim pursuant to Labor Code Section 5401.
2. The date that the employee tests positive, which is the date the specimen was collected for testing.
3. 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.
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.

The reporting requirements leave some questions unanswered. For example, the statute does not address the circumstance in which multiple employers share a work site, or employees who move from site to site during the work shift. Until further clarification is issued, employers should err on the side of caution, including as much information as they can about their own employees, on their own work sites.

The statute further requires employers to report all employees who tested positive between July 6, 2020 and September 17, 2020. The reporting must include all of the information in (1)-(3) above, as well as the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between those dates. This information must be submitted to the claims administrator no later than October 17, 2020.

B. Cal OSHA’s Authority to Prohibit Operations and to Require Written Notice of Exposure

Prohibiting Operations or Entry Due to COVID-19 Imminent Hazard

Another bill, AB 685, effective from January 1, 2021 to January 1, 2023, provides that when, in the opinion of Cal OSHA, a place of employment, an operation, or a process exposes workers to the risk of COVID-19 infection so as to constitute an imminent hazard to employees, OSHA may prohibit the performance of such operation or entry into the place of employment. The prohibition will be limited to the immediate area in which the imminent hazard exists, and thereafter, entry may be granted only for the purpose of eliminating the dangerous conditions. Notice of Cal OSHA’s decision must be posted in a conspicuous place at the place of employment.

Requiring Prompt Written Notice to Workers

AB 685 also requires an employer to take all of the following actions within one business day of receiving a notice of potential exposure to COVID-19:

1. Provide a written notice to all employees, and to the employers of subcontracted employees, who were on the premises at the same worksite as the employee who tested positive that they may have been exposed to COVID-19. The notice should be provided in a manner the employer normally uses to communicate employment-related information, including, personal service, email, or text message, and should be in both English and the employee’s preferred language.

1. Provide written notice to the exclusive representative, if any, of the employees;

1. Provide all employees who may have been exposed (and the exclusive representative, if any) with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.

1. Notify all employees, the employers of subcontracted employees and the exclusive representative, if any, of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the CDC.

If the number of cases qualifies as an “outbreak” (as defined by the State Department of Public Health) the employer may need to notify the local public health department within 48 hours. The State Department of Public Health will make information regarding outbreaks publicly available on its website, which will be linked on the websites of local public health departments.

Employers must maintain records of the foregoing notification for at least 3 years. Civil penalties will be imposed on employers who fail to provide the required notice.

C. More COVID-19 Rules Likely from the Cal OSHA Standards Board

The California Occupational Safety and Health Standards Board announced last week that it will be creating additional standards to protect against the spread of COVID-19. The board has not yet specified what form the new rules will take, but employers should be prepared to quickly address the new standards once the rules are announced.

California employers with questions about complying with these and other COVID-19 related laws should contact experienced employment counsel.