New California Employment Laws for 2021 – Part 1

New COVID-19 Related Laws for 2021

By Randy A. Lopez

COVID-19 Notice Obligations

Previously, employers were not required to notify employees if an employee had been diagnosed with COVID-19 or been exposed.  Beginning January 1, 2021, private and public employers who receive notice of a potential exposure to COVID-19 must do the following within one (1) business day:

1. Written notice (via personal service, email or text if it can be reasonably be anticipated to be received within one business day and must be in English and the language understood by the majority of the employees) to all employees (including employers of subcontracted employees) that were at the same worksite as the “qualifying individual” within the infectious period that they may have been exposed to COVID-19.  A “qualifying individual” is a person who: 1) has a laboratory-confirmed case of COVID-19; 2) has a positive COVID-19 diagnosis from a licensed health care provider; 3) has been ordered to isolate due to COVID-19; or 4) has died due to COVID-19.
2. If any employees are covered by a union, written notice to the union representative for any affected employees.
3. Provide all exposed employees (and representatives, if any) with information regarding COVID-19 related benefits, such as workers compensation, COVID-19 related leave, and paid sick leave information, as well as the employer’s anti-discrimination and anti-retaliation policies.
4. Provide all affected employees (and their representatives, if any) and any employers of subcontractors information related to the disinfection and safety plan that the employer plans to implement and complete per CDC guidelines.  Information can be found here: CDC Guidance for Cleaning and Disinfecting Facilities and How to Clean and Disinfect Your Facility.

What employers should do:

1. Compile COVID-19 related benefits to provide to employees including anti-discrimination and anti-retaliation policies.
2. Prepare disinfection and safety plan for COVID-19 exposure.
3. Contract with a company that does disinfections or have available all material necessary to conduct proper disinfection.
4. Review and potentially reconsider current disinfection and safety procedures and plans that are operating, i.e., available hand sanitizer, masks, shields, testing, temperature checks, etc.  

Notification to Local Public Health Agency of COVID-19 “Outbreak”

Employers must notify the local public health agency in the jurisdiction of the worksite within 48 hours of an “outbreak”.  An “outbreak” is currently defined as: at least three (3) potential or confirmed COVID-19 cases within a fourteen (14)-day period in people who live in different households.  Employers must provide the local public health agency with the names, number, occupation and worksite of “qualifying individuals”.  A “qualifying individual” is a person who: 1) has a laboratory-confirmed case of COVID-19; 2) has a positive COVID-19 diagnosis from a licensed health care provider; 3) has been ordered to isolate due to COVID-19; or 4) has died due to COVID-19.  Thereafter, the employee will remain obligated to continue notifying the local health department/agency of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

Cal-OSHA Can Shut Down Workplaces Identified As Imminent Hazards to Employees

AB 685 permits Cal-OSHA to close workplaces that “constitute an imminent hazard to employees” due to COVID-19.  The closure will be limited to the immediate area that the “imminent hazard exists”.  Cal-OSHA cannot prohibit entry to any areas that are outside of the “hazard area”.  Cal-OSHA is required to post a notice in a conspicuous place at the place of employment making this determination.  Of course, entry will still be permitted for eliminating the dangerous condition.  The usual notice requirements Cal-OSHA is subject to relating to an imminent hazard are removed as it relates to COVID-19, i.e., no 15-day window to respond to the notice.  Therefore, employers must be prepared to act immediately if Cal-OSHA makes a hazard determination.

COVID-19 Workers Compensation Presumption

This will serve as a reminder that on September 17, 2020, Gov. Gavin Newsom signed into law SB 1159 which modifies and extends the Governor’s previous Executive Order N-62-20 creating a disputable workers’ compensation presumption that illness or death related to COVID-19 was an occupational injury (based on a set of factors) and therefore eligible for benefits.  The coverage disputable presumption period is from July 6, 2020, through January 1, 2023.

The law allows a rebuttable presumption to extend beyond July 6, 2020, for firefighters, peace officers, fire and rescue coordinators, and certain kinds of health care and health facility workers, including in-home supportive services providers that provide services outside their own home.

For other employers, the “rebuttable presumption” applies to:

• Employers with five (5) or more employees; and
• Employees who test positive during an outbreak at the employee’s specific place of employment.

The definitions of “injury”, “outbreak” and “specific place of employment” are as follows:

Injury: Includes illness or death resulting from COVID and all of the follow conditions must exist:

• Employee tests positive for COVID-19 within 14 days after a day that the employee performed work at the employee’s place of employment;
• The day the employee performed work services was on or after July 6, 2020 – the date of injury shall be the last date the employee performed work services prior to receiving the positive test; and
• The employee’s positive test occurred during an outbreak at the employee’s specific place of employment.

Outbreak: An outbreak exists if, within 14 days, one of the following occurs at the place of employment:

• For employers with 100 employees or less at a specific place of employment, 4 employees test positive for COVID-19;
• For employers with more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the place of employment test positive for COVID-19; or
• The place of employment is ordered to close by a local public health department, the State Dept. of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection.

Specific Place of Employment: This is defined as the building store, facility, or agricultural field where an employee performs work at the employer’s direction.  The employee’s home or residence is excluded unless the employee provides home health care services to another individual at the employee’s home or residence.

Benefits: The benefits available to the employee include: full hospital, surgical, medical treatment, disability indemnity, and death benefits.  If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and exhausted first before any temporary disability benefits are provided.  It is important to work closely with your workers compensation carrier to ensure compliance.

Reporting: When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer shall report it to claims administrator in writing – email or fax – within three (3) business days of: (a) an employee tests positive – personally identifiable information is not to be provided unless the employee asserts the infection is work related or has filed a claim form; (b) the date the employee tested positive; (c) The address or addresses of specific place of employment during the 14 days prior to the employee’s positive test; and (d) the highest number of employees who worked at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at the specific place.  The law establishes a penalty of up to $10,000 for an employer who intentionally submits false or misleading information or fails to submit information when reporting. 

Rebuttal: An employer may dispute the presumption with evidence such as:

1. Measures in place to reduce potential transmission of COVID-19 in the place of employment;
2. The employee’s non-occupational risks of COVID-19 infection;
3. Statements made by the employee; and
4. Any other evidence normally used to dispute a work-related injury.

Employers (and claims administrators) must act quickly to gather evidence to dispute because if the date of injury is before July 6, 2020, the administrator only has 30 days to deny the claim but if the date of injury is on or after July 6, 2020, the claims administrator has 45 days to deny the claim.  If the claim is not denied, then the injury is presumed compensable.  The presumption of compensability can still be rebutted but only with evidence discovered after the applicable investigation period.

Handwashing Requirement

Requires employees working in any food facility to be permitted to wash their hands every 30 minutes and more frequently as needed.

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We know this is a lot of information to digest.  If you have any questions relating to these new laws or any other issues, please do not hesitate to contact either Toni Y. Long or Randy A. Lopez directly. 

DISCLAIMER: The information contained above is solely provided for informational purposes and does not constitute legal advice.  All readers should consult with legal counsel for additional and/or current information, and before acting on any of the information presented in this newsletter.