New Measure on Employer Obligations for COVID-19

S.B. 1159 and A.B. 685

On September 17, 2020, Governor Newsom signed S.B. 1159 and A.B. 685, which affect employer obligations relating to COVID-19 workplace exposures.

S.B. 1159, which took effect immediately, will shift the burden of proof to presume that covered workers who contracted COVID-19 did so at work, unless the employer can prove otherwise. The law also requires employers to provide notice to their workers' compensation carrier of employees who test positive for COVID-19. 

The legislation also enacts a rebuttable presumption that applies to first responders and certain health care workers. This presumption covers firefighters, peace officers, employees of health facilities who provide direct patient care or custodial services, nurses, EMTs, and employees who provide direct patient care for home health agencies. 

For all other California employers with five or more employees, S.B. 1159 establishes a rebuttable presumption that will apply for employees who test positive during an "outbreak" if the following occurs:

1. The employee tests positive for COVID-19 within 14 days after a day that the employee worked at the employee’s place of employment at the employer’s direction.

2. The day on which the employee performed the work was on or after July 6, 2020. The date of injury is the last date the employee performed the work prior to the positive test.

3. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

An “employee’s specific place of employment” does not include the employee’s home or residence, “unless the employee provides home health care services to another individual at the employee’s home or residence.” 

Additionally, if an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and before any temporary disability benefits. 

This presumption applies from July 6, 2020 through January 1, 2023.

S.B. 1159 also contains new reporting requirements for employers with five or more employees. When an employer "knows or reasonably should know" that an employee has tested positive for COVID-19, it must report the following information to its workers' compensation claims administrator within three business days:

1. An employee has tested positive. 

2. The date that the employee tests positive (the date the specimen was collected for testing).

3. The specific address or addresses of the employee's place of employment during the 14-day period preceding the positive test. 

4. The highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment. 

Covered employers aware of any positive tests from July 6, 2020 and on, have 30 days from the date the bill was signed to report the above information to their claims administrator. Employers who violate these reporting requirements by failing to submit information or submitting false or misleading information are subject to a fine of up to $10,000 by the Labor Commissioner. 

A.B. 685 which takes effect on January 1, 2021, expands Cal/OSHA’s authority for workplaces with a risk of an “imminent hazard” relating to COVID-19, and requires employers to provide written notice to employees who may have been exposed to COVID-19 and notify local public health officials. 

If an employer or employer representative receives a notice of potential exposure to COVID-19 as defined in the law, the employer must do all of the following within one business day of the notice of potential exposure: 

1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
   

2. Provide a written notice to the exclusive representative, if any, of employees under paragraph 1.
   

3. 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, 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 anti-retaliation and antidiscrimination protections of the employee.
   

4. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

If an employer or employer representative is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who meet the definition of a qualifying individual. The employer must also report the business address and NAICS code of the worksite where the qualifying individuals work. An employer that has an outbreak subject to this section must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. 

• SHRM / Ferruzzo & Ferruzzo