On September 17, Governor Newsom signed two COVID-19 related bills—SB 1159 and AB 685—into law. SB 1159 sets a rebuttable presumption standard establishing workers’ compensation coverage for employees who contract Covid-19. SB 1159 is an urgency bill that makes the bill effective immediately. AB 685 modifies occupational safety standards to requiring employers to notify and report information related to COVID-19 exposure and provides the California Division of Occupational Safety and Health (“Cal/OSHA”) expanded authority to enforce those requirements. AB 685 goes into effect on January 1, 2021.
SB 1159 amends current workers’ compensation laws to deal with the impact of employees who contract COVID-19 and the extent COVID-19 is considered industrial, and therefore entitles employees to workers’ compensation benefits.
Standards for Application for Rebuttable Presumption under SB 1159:
Employees injured in the course and scope of employment are generally entitled to receive workers’ compensation benefits. Under existing law, prior to enactment of SB 1159, a series of specific injuries and illnesses for certain public safety employees that are presumed to be industrial in nature which creates a rebuttable presumption which qualifies them for workers’ compensation benefits immediately, unless an employer can show sufficient information that demonstrates the injury or illness is non-industrial.
Covid-19, however, poses unique challenges, which SB 1159 responded to by creating a similar presumption for illness or death resulting from COVID-19 in the following three circumstances:
- SB 1159 codifies the Executive Order Governor Newsom issued (Executive Order N-62-20) on May 6, 2020. Executive Order N-62-20 expanded the workers’ compensation rebuttable presumption to any employee who reported to their place of employment between March 19 and July 5, 2020, and tested positive or was diagnosed with COVID-19 within the following 14 days during that time period.
- This rebuttable presumption is extended beyond July 6, 2020, for frontline workers. Frontline workers, such as, firefighters, peace officers, fire and rescue coordinators, and certain kinds of health care and health facility workers, including in-home supportive service providers that provide services outside their own home.
- For health facility employees other than those who provide patient care, and other than custodial employees in contact with COVID-19 patients, the presumption does not apply if the employer can show the employee did not have contact with a COVID-19 positive patient within the 14-day period
- For all other employees, the rebuttable presumption applies only if the employee works for an employer with five or more employees, and the employee tests positive for COVID-19 within 14 days after reporting their place of employment during a COVID-19 “outbreak” at the employees’ specific workplace.
- For purposes of this presumption, a COVID-19 “outbreak” exists if within 14 calendar days one of the following occurs at a “specific place of employment” (which excludes the employee’s home):
- If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19;
- The employer has more than 100 specific employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment, test positive for COVID-19; or
- 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
For purposes of administering this “outbreak” presumption, SB 1159 requires employers to report their workers’ compensation claims administrator in writing within three (3) business days when they know or reasonably should know that an employee tested positive for COVID-19, along with other relevant information.
The Workers’ Compensation Appeals Board (WCAB) is bound by these presumptions unless provided with controverted evidence to dispute the presumption. The compensation under workers’ compensation related illness or death includes full hospital, surgical, medical treatment, disability indemnity and death benefits. The bill also makes COVID-19 related workers’ compensation claims presumptively compensable for 30 days (as opposed to the standard 90-day period for all other times of workers’ compensation claims).
This new law requires an employee to exhaust any COVID-19 related supplemental paid sick leave benefits (e.g., FFCRA’s Emergency Paid Sick Leave or CA supplemental paid sick leave under AB 1867) and meet certain certification requirements before receiving temporary disability benefits or an industrial injury leave of absence. The effective timeframe for workers’ compensation benefits under SB 1159 based on illness or death is limited. The law will only remain in effect until January 1, 2023, after which the law will sunset and be repealed unless extended by the Legislature.
SB 1159 Impact on Employers
SB 1159 is now law and your organization needs to be prepared to respond to any indication that an employee contracted COVID-19 and coordinate with their employment attorneys, workers compensation carriers and adjusters to establish best practices for reporting and responding to potential COVID-19 related workers’ compensation claims.
Note that COVID-19 claims will not affect your workers’ compensation experience modification (X-Mod).
AB 685 amends the Labor Code to require employers to adhere to stricter occupational health and safety rules and empowers Cal/OSHA with expanded enforcement powers dealing with COVID-19. AB 685 does not go into effect until January 1, 2021.
New COVID-19 Employer Notice and Reporting Requirements
AB 685 requires employers to comply with reporting requirements and provides the following four notices related to potential COVID-19 exposures in the workplace within one business day of being informed of the potential exposure:
- Potential COVID-19 Exposure Notice to Employees
- If the employer or employer’s representative receives a notice of a potential exposure to COVID-19 in the workplace by a “qualifying individual,” the employer must provide written notice to all employees, and the employers of subcontracted employees, who were present at the same worksite within the infectious period (as defined by the State Department of Public Health), stating that they may have been exposed to COVID-19.
- A “qualifying individual” means a person who demonstrates any of the following requirements:
- A laboratory-confirmed case of COVID-19;
- A positive COVID-19 diagnosis from a license health care provider;
- A COVID-19 related isolation order issued by a public health official; or
- Death due to COVID-19 as determined by the County Public Health Department.
- The notice must be sent in the manner the organization normally uses to communicate employment-related information. This can include personal service, email, or text message so long as it can be reasonably anticipated that the employees will receive the notice within the one business day requirement and must be in both English and the language understood by the majority of employees
- Potential COVID-19 Exposure Notice to Exclusive Representative of Represented Employees
- Affected employees who are required to receive this COVID-19 exposure notice include represented employees, the employer must send the same notice to the exclusive representative of the affected bargaining unit
- Notice of Covid-19 Related Benefits and Employee Protections
- Employer must also provide all affected employees and the exclusive representative, if any, with a notice of information regarding any COVID-19 related benefits or leave rights under federal, state, and local laws, or pursuant employee policy, as well as employee’s protections against retaliation and discrimination.
- Notice of Safety Plan in Response to Potential COVID-19 Exposures
- Organizations must provide all employees, employers of subcontracted employees, and any exclusive representative, of the employer’s plan for implementing and completing a disinfection and safety protocol pursuant to guidelines issued by the Federal Centers for Disease Control
Failure to comply with these requirements may subject the employer to a civil penalty. AB 685 prohibits employers from requiring employees to disclose medical information except as required by law and prohibits employers from retaliating against an employee for disclosing a qualifying case of COVID-19. Employers are required to maintain records of these four notices for at least three years,
The California Department of Health (“CDPH”) defines a COVID-19 “outbreak” as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in a different household. Employers are notified of a number of cases that meet the CDPH definition of a COVID-19 outbreak, the employer must also notify the applicable local public health agency within 48 hours of the names, number, occupation, and worksite of any “qualifying individuals” related to the outbreak. CDPH Covid-19 Employer Playbook-supporting a safer environment for workers and customers are available here
CDPH is required to make workplace statistics received from local health departments under this provision (other than personally identifiable employee information) available on its website, so that the public can track the number of cases and outbreaks by industry.
These COVID-19 notice and reporting requirements apply to all private and public employees with two exceptions:
- Health facilities, as defined in section 1250 of the Health and Safety Code, are exempt from reporting an “outbreak” within 48 hours;
- Notice requirements don’t apply to exposures by employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals who are known or suspected to have COVID-19 unless the “ qualifying individual” is also an employee at the same worksite
Cal/OSHA Enforcement Power
Under current law, whenever Cal/OSHA discovers that a place of employment or equipment creates a hazard to employees, Cal/OSHA has authority to prohibit entry into the affected part of the workplace or prevent the use of the dangerous equipment in the workplace.
AB 685 expands and makes clear Cal/OSHA’s authority within the context of COVID-19 related issues in the workplace. If Cal/OSHA discovers that a workplace or operation/process within a workplace exposes employees to a risk of COVID-19 infection and creates an imminent hazard to employees, Cal/OSHA has authority to prohibit entry to the workplace or to the performance of such operation/process. If this authority is exercised by Cal/OSHA to apply this restriction, Cal/OSHA must then provide the employer with notice of such action and post the notice in a conspicuous place at the worksite. Any restriction imposed by Cal/OSHA must be limited to the immediate area where the imminent hazard exists and must not prohibit any entry into or operation/process within a workplace that does not cause a risk of infection. Additionally, Cal/OSHA may not impose restrictions that would materially interrupt “critical government functions” essential to ensuring public health and safety functions, or the delivery of electrical power or water.
Cal/OSHA’s expanded enforcement power sunsets on January 1, 2023 and will be repealed automatically on that date unless further extended by the Legislature.
Amends Cal/OSHA procedures for serious violation citations relating to COVID-19
Cal/OSHA can issue a citation alleging a “serious violation” of occupational safety and health statutes or regulations to an employer if they make a reasonable attempt to determine and consider whether certain mitigating factors were taken by an employer to rebut the potential citation. Cal/OSHA satisfies this requirement by sending the employer a description of the alleged violation at least 15 days before issuing a citation and provides the employer with the opportunity to respond. Even if employer doesn’t provide information in response to Cal/OSHA’s inquiries, an employer is not precluded from presenting such information at a later hearing contesting the citation.
AB 685 changes this procedure, as applied to serious violation citations Cal/OSHA issues related to COVID-19, by removing the agency’s obligation to provide 15 days’ notice to provide employer opportunity to respond, before issuing the citation. Cal/OSHA, under AB 685, can issue the citation immediately and the employer can contest the citation through existing Cal/OSHA appeal procedures,
As with the other parts of the bill, this modified procedure ends on January 1, 2023.
AB 685 Impact on Employers
AB 685 does not go into effect until January 1, 2021. Your organization should prepare for this new notice and reporting requirements. Review and revise your organization’s existing procedures related to notification of COVID-19 exposures in the workplace to make sure your organization is in compliance with the requirements of AB 685 by January 1. Make sure to review these policies with your employment attorney and HR representative.
The bottom line is to be prepared and stay on top of guidelines from the CDC, OSHA, the DOL, and other governmental agencies. Implement an effective and save work environment to mitigate COVID-19 claims and lawsuits. With the assistance of your employment attorney, review and maintain your Injury and Illness Prevention Plan (IIPP) as required by law and make sure that any policies related to COVID-19 are updated and in compliance with the relevant authorities. Enforce the policies by informing your employees about the safety protocols and reporting procedures. Your employees should be encouraged to seek medical attentions if they experience COVID-19 related symptoms.
Let us know if you have any questions or concerns with workers’ compensation or would like us to provide you with a quote. We are here to help!