COVID-19 Response: California Enacts Statutes Establishing Rebuttable Presumption of Workplace Injury, New Notice Requirements for COVID-19 Exposure
Los Angeles, Calif. (October 16, 2020) - Recently, California Governor Gavin Newsom signed Senate Bill 1159 (SB 1159) and Assembly Bill 685 (AB 685), which introduce new measures to address COVID-19 in the workplace, including the creation of a rebuttable presumption of a workplace injury and new notice requirements for employers in the event of a potential COVID-19 exposure. We discuss these new laws individually below.
SB 1159 – Rebuttable Presumption of COVID-19 Workplace Injury
SB 1159 was signed into law on September 17, 2020. The bill took effect immediately and remains effective until January 1, 2023. For employers of five employees or more, there is now a rebuttable presumption that an employee who suffers illness related to COVID-19 during an “outbreak” at their specific workplace suffered a workplace injury and is thus eligible for workers’ compensation benefits. An “outbreak” exists where one of the following events occurs within 14 days at the workplace:
- For employers of 100 or fewer employees, if four employees test positive for COVID-19;
- For employers of more than 100 employees, if 4% of the employees of the specific workplace test positive for COVID-19; or
- The specific workplace is ordered to close by a local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to risk of infection of COVID-19.
To assist in tracking these outbreaks, SB 1159 requires employers to report COVID-19 infections it knows or reasonably should know of to its workers’ compensation claims administrator. Failure to report this information or intentional misrepresentation of information may result in civil penalties of up to $10,000. Employers may need to reconsider the handling of any employee claims for COVID-19 related illnesses denied before SB 1159 was signed.
The bill also extends this rebuttable presumption to first responders and healthcare workers, without the need to first establish a workplace outbreak.
Employers have the opportunity to rebut this presumption by introducing evidence the employee did not contract COVID-19 at the workplace, including evidence of measures the employer put in place to reduce transmission of the disease.
AB 685 – Employer Notice Requirements for Potential COVID-19 Exposure
AB 685 was signed into law on September 17, 2020. This law takes effect January 1, 2021 and remains effective until January 1, 2023. It establishes new comprehensive notice requirements for employers who learn of a “potential exposure” to COVID-19 in the workplace. Within one business day of receiving “notice of potential exposure” to COVID-19 in the workplace, employers must:
- provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the infected individual within the infectious period and may have been exposed to COVID-19;
- provide written notice to employee representatives, such as unions and attorneys;
- provide written notice to employees and/or employee representatives regarding COVID-19 benefits that the employees may be entitled to, and stating the employer’s anti-discrimination, anti-harassment, and anti-retaliation policies; and
- provide notice to employees regarding the company’s CDC-compliant protocols for disinfection and elimination of continued exposure to COVID-19.
At the same time, the written notice must protect the privacy, identity, and personal health information of the employee who tested positive for COVID-19.
Written notice can take the form of a formal letter, e-mail, text message, or other notice that can be reasonably expected to reach the employees within one business day of sending.
If the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak (as defined by the California Department of Public Health), the employer must, within 48 hours, notify the local public health agency of the names, contact numbers, occupations, and worksites (including business address and NAICS code) of the employees who have:
- a laboratory-confirmed case of COVID-19;
- a positive COVID-19 diagnosis from a licensed healthcare provider;
- a COVID-19 related order to isolate provided by a public health official;
- died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a count; and
- any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
AB 685 also modifies Cal/OSHA’s required “1BY” notice for COVID-19-related hazards. Ordinarily, Cal/OSHA must issue a 1BY notice when it intends to issue a serious citation, which provides employers with 15 days to produce evidence in support of their defense, and potentially avoid the issuance of a serious violation. The removal of the 1BY notice means Cal/OSHA can issue serious citations before the employer has notice or a chance to address Cal/OSHA’s concerns. As a result, employers must be fastidious in responding to such citations.
Employers with employees in California should review their policies and practices to ensure they are in full compliance with these newly enacted laws. Lewis Brisbois’ Labor & Employment Practice is available to assist with any inquiries regarding these and other rapidly developing employer obligations. Please also visit our COVID-19 Response Resource Center for more alerts on the many areas of law impacted by the pandemic.
Christopher I. Cho, Associate
Peter T. Shapiro, Partner
Ashleigh Reif Kasper, Partner