Dec 05, 2020
COVID-19 and the Workplace: More New Law
Dec 05, 2020
By Cari Cohorn
As more California employers reopen their workplaces, and more employees resume on-site work, employers—and the lawyers who advise them—must be aware of labor laws and regulations enacted this year in response to the COVID-19 pandemic. The law has changed substantially since articles on this topic appeared in the June Marin Lawyer. New legislation and administrative guidance address: (1) employers’ obligations for notifying workers and local health departments of employees’ potential exposure to the coronavirus; (2) changes in workers’ compensation procedures; and (3) types of leave and financial benefits that employers must make available to employees affected by COVID-19.1
1. New Requirements for Notifying Employees and Local Health Departments of Possible Exposure to COVID-19.
Beginning January 1, 2021, pursuant to A.B. 685, employers who learn an employee may have contracted COVID-19, or may have been exposed to it at work, must promptly notify other workers, as well as local public health authorities. The technical language of the statute provides that employers who receive a “notice of potential exposure” of an employee to a “qualifying individual" (i.e., someone diagnosed with COVID-19, someone who died due to COVID-19, or someone who has been ordered by a public health official to isolate) will face strict reporting requirements. “Notice of potential exposure” means any of the following:
(A) Notification to the employer from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite;
(B) Notification to the employer from an employee, or their emergency contact, that the employee is a qualifying individual;
(C) Notification through the testing protocol of the employer that the employee is a qualifying individual; or
(D) Notification to an employer from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.
Within one business day, an employer receiving a notice of potential exposure must provide written notice (in both English and any other language understood by the majority of employees) to all employees who have been present at the same worksite that they may have been exposed to COVID-19. The notice must also advise employees of the disinfection and safety plan the employer intends to implement and of state-law protections against discrimination and retaliation for reporting exposure or infection. Finally, the notice must include information regarding COVID-19-related benefits that may be available to the employees, such as workers’ compensation and sick leave. (Such benefits are discussed in more detail below.)
If the employer receives notice of enough COVID-19 cases to meet the definition of “outbreak,” the employer is required to notify the appropriate local public health agency or agencies within 48 hours. For purposes of this statute, an outbreak exists when three or more cases of COVID-19 have been confirmed through laboratory tests at a single worksite within a two-week period among employees living in different households. The employer must report the outbreak to the public health department of the county where the worksite is located and to the health department of each county where an infected employee resides.
2. Workers’ Compensation: Changes to the Presumption of Work-Related Injury and Requirements for Reporting COVID-19 Cases to Claims Administrators.
On May 6, 2020, Governor Newsom issued Executive Order N-62-20, which created a rebuttable presumption that – for purposes of awarding workers’ compensation benefits – any employee who is diagnosed with COVID-19 within 14 days of working at his or her “place of employment” (or “POE”) contracted the virus at work. That is, unless the employer can prove otherwise, the workers’ compensation claims administrator and Workers’ Compensation Appeals Board must determine that the employee’s infection is an injury that arose out of and in the course of employment. S.B. 1159 extends this presumption for certain specified categories of workers, such as firefighters, peace officers, and some health care workers, through January 1, 2023. (This presumption does not apply to employees working exclusively from home during the 14-day period. The employee’s residence is expressly excluded from the definition of “place of employment.”)
With respect to types of workers not in the enumerated categories, the rebuttable presumption of a work-related illness applies only if the employer has at least five employees, and the employee at issue tests positive for COVID-19 during an “outbreak” at his or her place of employment. An outbreak exists if, within 14 days, one of the following takes place at a particular POE:
(A) If the employer has 100 employees or fewer at a specific POE, four or more employees test positive for COVID-19;
(B) If there are more than 100 employees at the POE, four percent of the employees who reported to the POE during the 14-day period test positive; or
(C) A local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent orders the POE to close due to a risk of COVID-19 infection.
S.B. 1159 also requires employers to report certain information to their workers’ compensation claims administrators so the administrators can determine whether an outbreak exists. Specifically, when an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report via email or fax, within three business days: (1) that an employee has tested positive; (2) the date the employee was tested (i.e., the date the employee provided a specimen for testing); (3) the address of the employee’s POE; and (4) the highest number of employees who reported to the employee’s POE in the 45 days preceding the last date the positive employee worked there. Employers who violate this reporting requirement may face civil penalties up to $10,000.
3. Leave Laws and Benefits Available to Employees Affected by COVID-19.
Numerous federal and state statutes and programs provide a complex web of job-protected leave and financial benefits to employees impacted by the pandemic. For example, workers who are laid off, furloughed, or have their hours reduced are eligible for unemployment insurance benefits, and in some circumstances those unable to work due to COVID-19 infection or quarantine can receive short-term state disability benefits. (Note that, pursuant to S.B. 1159, an employee entitled to paid sick leave benefits “specifically available in response to COVID-19” – such as California COVID-19 Supplemental Paid Sick Leave –must exhaust those benefits before temporary disability benefits through workers’ compensation insurance are payable.)
Perhaps the most important COVID-19-related leave law is the federal Families First Coronavirus Response Act (“FFCRA”),2 which requires employers to provide two weeks (up to 80 hours) of paid leave for employees who work for public entities or for private employers with fewer than 500 employees who are unable to work for one of the following reasons:
(1) They are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
(2) They have been advised by a health care provider to self-quarantine for concerns related to COVID-19;
(3) They are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
(4) They are caring for someone who is subject to a quarantine or isolation order, or who has been advised by a health care provider to self-quarantine;
(5) They are caring for a child whose school or place of care has been closed, or whose child care provider is unavailable, for reasons related to COVID-19; or
(6) They are experiencing “any other substantially similar condition” specified by the Secretary of Health and Human Services.
When the employee is out of work due to his or her own illness or need to quarantine, the benefit under FFCRA is equal to the higher of minimum wage or the employee’s regular pay rate, capped at a maximum of $511 per day. If the employee is out of work caring for a family member, the benefit will be two-thirds of the employee’s regular pay, not to exceed $200 per day. In addition to the initial two-week leave, the FFCRA provides for up to 10 additional weeks of paid leave, at two-thirds the employee's regular rate of pay, for a worker who has been employed for at least 30 days and who is unable to work due to a need to care for a child whose school is closed or whose usual child care provider is unavailable for reasons related to COVID-19.3
On September 9, 2020, Governor Newsom signed A.B. 1867, a bill aimed at filling gaps in the FFCRA. Most importantly, A.B. 1867 expands some of the paid leave provisions of the FFCRA to include employers with more than 500 employees, as well as health care and emergency services workers whose employers were allowed to opt out of the FFCRA. A.B. 1867 only provides benefits for employees prevented from working for their own illness or need to quarantine, not to those caring for others or prevented from working by unavailability of school or child care. The paid leave created by A.B. 1867, knows as “Supplemental COVID-19 Leave,” generally runs concurrently with other leave provisions specifically intended to address COVID-19 but is distinct from, and is allowed in addition to, non-COVID-19 sick leave and family leave. Like FFCRA paid leave, Supplemental COVID-19 Leave is capped at $511 per day. Any employee denied Supplemental COVID-19 Leave can file a claim with the Labor Commissioner.
A.B. 1867 also requires that covered employers post a notice explaining employees’ rights (available on the DLSE website) or, if employees are not at the worksite, provide it to them electronically. In addition, employers subject to A.B. 1867 must provide employees, each pay day, documentation of their Supplemental COVID-19 Leave balances in the same manner in which they provide information concerning non-COVID-19 paid sick leave, such as on a wage statement or pay stub.
A.B. 1867 will lapse December 31, 2020, or when the FFCRA expires, whichever is later.
Employers Must Stay Informed.
The legal landscape related to the pandemic has evolved a great deal over the course of this year, and it will likely continue to do so. Employers should consult often with knowledgeable employment counsel to stay abreast of any significant changes and to ensure they comply with their obligations to employees as well as state and local authorities.
1A thorough review of guidelines for when and how to safely reopen a workplace is beyond the scope of this article. However, a useful overview of these issues, as well as employers’ obligations for keeping records and reporting cases of COVID-19 to Cal/OSHA, appears in the “COVID-19 Employer Playbook” (pdf) released by Governor Newsom’s office on September 25, 2020. The federal Centers for Disease Control and Prevention has also issued guidance on deciding whether to reopen a workplace, how to limit risk upon reopening, and best practices for cleaning and disinfecting.
2Although the FFCRA took effect in April, new regulations implementing it were issued September 11, 2020.
3An employer with fewer than 50 employees whose business may be threatened by the paid child-care leave requirement may claim an exemption. The revised regulations issued September 11, 2020, clarify when the exemption is available, such as when providing the paid leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity.
Cari Cohorn is an attorney with a proven track record of successfully representing clients through all phases of employment disputes. Ms. Cohorn represents both employers and employees, focusing her practice on providing strategic, cost-effective solutions to a variety of employment law matters.