On September 17, 2020, Governor Gavin Newsom signed two bills that expanded worker protections related to COVID-19. AB 685 imposes reporting requirements related to when employees are exposed to COVID-19 in the workplace. SB 1159 codifies Governor Newsom’s Executive Order providing workers’ compensation insurance coverage to employees who test positive for COVID-19 in connection with their employment between March 19 and July 5, 2020, and creating a new framework for workers’ compensation coverage for employees who test positive for COVID-19 after July 5, 2020.

COVID-19 Reporting Requirements Under AB 685

Effective on January 1, 2021, California businesses must provide notice of potential exposure to COVID-19 within one business day of receiving information that an employee has COVID-19 or was exposed to COVID-19 in the workplace. The notice must be provided to employees and subcontracted employees who were at the same “worksite” as the “qualifying individual” during the infectious period.

The definition of “qualifying individual” includes any person who has:

  1. a laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health;
  2. a positive COVID-19 diagnosis from a licensed health care provider
  3. a COVID-19-related order to isolate provided by a public health official; and
  4. died due to COVID-19 as determined by the county public health department or include county COVID-19 statistics.

AB 685 defines “worksite” as the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. A worksite does not include areas that the worker did not enter during the infectious period. Businesses only need to notify employees who were at the same worksite as the qualifying individual.

Businesses should provide written notice to employees and subcontracted employees in the same manner that the company normally communicates employment-related information. This includes communicating information by hand delivering the notice and sending the notice via e-mail or text message. The notice should include the following information:

A statement advising employees that they may have been exposed to COVID-19 at the workplace (without identifying the sick employee);

  • 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 COVID-19-related leave;
  • Information regarding options for exposed employees, including company sick leave, other federal or state-mandated leave, supplemental sick leave, or negotiated leave provisions;
  • Information regarding the anti-retaliation and anti-discrimination protections the employee is entitled to; and
  • Information regarding the employer’s disinfection and safety plan.

California businesses must provide written notice to employees’ exclusive representative (i.e., bargaining units/union representative), if any. The written notice to the exclusive representative must include the information that is required on the Cal/OSHA Form 300 injury and illness log, regardless of whether the business is required to maintain a Cal/OSHA Form 300, and the business’s disinfection and safety plan.

AB 685 also requires businesses to notify their local public health department within 48 hours of an “outbreak” of COVID-19 in the workplace. Companies should check the State and local public health departments for the most up to date definition of “outbreak” of COVID-19. This reporting requirement does not apply to certain “health facilities” as defined in Health and Safety Code section 1250. This reporting requirement also does not apply to employees who, as part of their duties, conduct COVID-19 testing or provide direct care to individuals known to have tested positive for COVID-19, or are in quarantine or isolation—unless the qualifying individual is an employee at the same worksite.

AB 685 also gives Cal/OSHA authority to act when it believes employees are exposed to a risk of COVID-19 in such a way it creates an imminent hazard to the employee. This includes prohibiting access or entry to a worksite, prohibiting performance of an operation or process at the worksite, or requiring the business to post notice of an imminent hazard at the worksite. AB 685 also provides shortened notice periods for citations for serious violations related to COVID-19.

Workers’ Compensation Coverage Under SB 1159

Effective immediately, SB 1159 codifies Governor Newsom’s Executive Order No. N-62-20, which created a rebuttable presumption of workers’ compensation coverage when an employee performed work outside of his/her home within 14 days of testing positive for COVID-19. Executive Order No. N-62-20 was effective from March 19 to July 5, 2020. SB 1159 also creates a slightly different framework for the workers’ compensation presumption for employees who tested positive for COVID-19 after July 5, 2020.

SB 1159 creates two categories of employees—(1) first responders and health care professionals, and (2) all other employees who test positive for COVID-19 during an “outbreak” at the “specific place of employment.” When first responders or health care professionals test positive for COVID-19 within 14 days after their last day of work at the specific place of employment, it is presumed the first responders or health care professionals contracted COVID-19 due to their work. Once a first responder or health care professional makes a claim, the business has 30 days to accept or deny the claim. If the business does not deny the claim within 30-days, it is presumed that the employee’s positive test for COVID-19 is an occupational illness (i.e., covered by workers’ compensation insurance). A business can only rebut this presumption with evidence discovered after the initial 30-day period.

This rebuttable presumption also applies to the second category, all other employees who test positive for COVID-19 during an outbreak at the specific place of employment. SB 1159 defines an outbreak as follows:

  • Businesses with 100 or fewer employees have an outbreak of COVID-19 when four or more employees test positive with COVID-19 within 14-days;
  • Businesses with more than 100 employees have an outbreak of COVID-19 when four percent or more of their employees test positive with COVID-19 within 14 days; or
  • When a local health department, OSHA, or school superintendent closes the business due to the risk of COVID-19.

SB 1159 also defines a specific place of employment as the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. SB 1159 excludes an employee’s home or residence unless home health care services to another individual are provided at the employee’s home or residence.

For employees who tested positive during an outbreak, the business has 45 days to respond to a workers’ compensation claim. If the company fails to deny the claim within the 45-day response period, it is presumed the claim is compensable and can only be controverted with evidence discovered after the 45-day response period. SB 1159 provides that a business may present evidence of its efforts to reduce potential workplace transmission of COVID-19 and non-occupational risk of COVID-19 infection.

Additionally, by October 15, 2020, businesses with five or more employees must notify their workers’ compensation carrier about any employees who tested positive with COVID-19 since July 6, 2020. And from now on, businesses who know or reasonably should know that an employee tested positive for COVID-19, must report to their claim’s administrator the following information:

  • The date that the employee tested positive, which is the date the specimen was collected for testing;
  • The specific address of the specific place of employment during the 14 days preceding the date of the positive test; and
  • The highest number of employees who reported to work at the specific place of employment during the 45 days preceding the last day the employee worked at each specific place of employment.

Businesses must make this report within three days of learning that an employee tested positive for COVID-19. Businesses must not provide their claims administrator with any personally identifiable information about the employee unless the employee has asserted the infection is work-related or has filed a claim. Businesses who fail to make the required report or provide false or misleading information may subject to a $10,000 civil penalty.

Before an employee may receive any temporary disability benefits through workers’ compensation insurance, the employee must first exhaust all available COVID-19 sick leave benefits, including California’s expanded paid sick leave for COVID-19.

Employers should review their notice and reporting policies and procedures to ensure compliance with these two new laws. If you have any questions or concerns regarding AB 685 and SB 1159, please contact one of the authors of this article or your preferred Dykema attorney.