California Governor Gavin Newsom Ratifies New Legislation Involving COVID-19 in the Workplace
If you are one of many employees being summoned back to work despite the ongoing pandemic, you may be understandably fearful for your safety. The state of California has seen numerous emergency executive orders seeking to curb the transmission of COVID-19 and protect employees as the state’s economy gradually restarts. Now that we are several months into the pandemic, the California legislature has taken steps to permanently codify some procedures that previously only existed as executive orders.
Two resulting pieces of legislation, AB 685 and SB 1159, have both been signed into law by California Governor Gavin Newsom on September 17th, 2020. Due to the inherent urgency of the public health crisis, both laws have already taken effect, resulting in significant implications to employees working in California, no matter the size of the company. Below, we review the substance of the laws and how they impact your rights as an employee.
AB 685 and COVID-19 Reporting Requirements
In the state of California, an employer has certain obligations when one of its employees tests positive for COVID-19, even if the transmission did not occur in the course of their job duties. There are also requirements when an employee informs their supervisor that they may have been exposed to someone who is either likely to have COVID-19 or is a confirmed positive case.
AB 685 codifies the requirements for reporting potential COVID-19 exposures to local regulatory bodies as well as other employees. When a company is informed of an exposure, they are expected to act expediently and thoroughly under the new law.
Within one business day of notice of the exposure, your boss must inform you and your colleagues if you shared a worksite with the exposed individual. This notice must come in the written form the company typically uses to communicate with employees, whether that be an email, text message, or some other physical or digital missive.
For an exposure to qualify, the individual sharing your workspace must either test positive for COVID-19, be ordered to self-isolate due to an exposure, or have passed as a result of COVID-19 complications. Written notice must also be supplied to any union or elected employee representatives as well as independent contractors (and their employees) who share workspace with the affected individual.
Your notice of possible exposure must also include the protections and benefits you are entitled to under federal, state, and local law. This can include everything from COVID-related leave to traditional sick leave to state-mandated leave. Remember, if you have been exposed to COVID-19, federal guidelines stipulate you should self-isolate at your residence for 14 days from the date of exposure to avoid endangering those around you. If your job requires you to come into a physical workplace, you will likely need to take some sort of temporary leave.
The notice will also need to include a reminder of anti-retaliation laws. Companies cannot lawfully retaliate against you for exercising your rights, including taking leave to isolate after a COVID-19 exposure. An employer also cannot intimidate or discourage you and your colleagues from reporting COVID-19 as a means of avoiding these requirements.
Finally, your employer will need to outline what steps they are taking to disinfect the affected workspace where the possible exposure took place. These steps must be consistent with local, state, and federal guidelines for your industry.
Note that these requirements do not apply to certain types of workplaces, including those that specifically and knowingly deal with COVID-19-positive persons. This can include COVID-19 testing sites, for example.
If your employer is being informed of COVID-19 exposures and they are not informing you and your fellow employees in a timely manner, they are in violation of AB 685. You should consider getting a COVID-19 test and proactively self-isolating, if possible, until you can confirm you are not likely to be carrying the virus. An employment lawyer can advise on specific next steps, including filing complaints with local and state health agencies. Fortunately, AB 685 also empowers California Division of Occupational Safety and Health (Cal/OSHA) to limit or even shut down businesses whose operations place their employees at substantial risk of COVID-19 transmission.
SB 1159 and COVID-19 Workers’ Compensation
Because COVID-19 can be transmitted by asymptomatic carriers, it can be challenging to determine where transmission of the virus occurs. This creates problems for employees seeking workers’ compensation as a result of COVID-19 transmission they believe occurred in the workplace.
Built on a previous executive order, SB 1559 extends employees infected with COVID-19 the presumption that the illness and subsequent injury were work-related. In other words, while it is generally impossible to prove with total certainty that transmission occurred at a workplace or in the course of job duties, SB 1559 legally assumes COVID-19 exposure was work-related. This gives qualifying employees justification to pursue workers’ compensation after contracting the virus.
The law extended targeted relief to employees infected between March 19, 2020 and July 5, 2020. Going forward, the below rules apply for anyone who contracted the virus on or after July 6, 2020.
In order to potentially qualify for SB 1158 protections, an employee must:
- Have tested positive for COVID-19 via PCR test
- Provide the results of the positive test to their employer
- Have worked or performed qualifying job duties within 14 days of the positive test
- Be part of an “outbreak” at their workplace
The known incubation period for COVID-19 is presently set at 14 days, which is why you must have worked at some point within a 14-day window prior to testing positive. If you have not worked for more than 14 days, it is less than likely you contracted COVID-19 while working.
If you test positive for COVID-19 and have worked in the last 14 days, you should immediately contact your employer and inform them of your results. This initial notice and any further communications regarding your COVID-19 status should be made in writing. As we discussed above, this will trigger requirements that your employer inform your colleagues who share a workspace. They will also need to inform their workers’ compensation carrier of your positive status within 3 days of your notice.
You will be eligible for workers’ compensation under the presumption benefits of SB 1159 if you tested positive as a result of an “outbreak” at your workplace with 5 or more employees. If your workplace employs 100 people or fewer, 4 people testing positive in a 14-day period constitutes an outbreak. If your workplace employs more than 100 people, 4% of the workforce testing positive in a 14-day period triggers the outbreak designation.
Any employee who meets these criteria can file a workers’ compensation claim on account of their COVID-19 diagnosis. Your employer will have 45 days from the date you file your claim to determine its compensability. They may object if there is ample evidence you transmitted COVID-19 from somewhere other than your workplace, such as photos or videos from you attending social functions without adhering to masking and social distancing. If your employer does not make a decision within 45 days, your claim will automatically be granted.
Healthcare professionals and first responders get a special classification with slightly different rules. They do not need to be part of an “outbreak,” and their claims must be responded to within 30 days instead of 45.
SB 1159 does not extend to employees who are working from home unless they are providing in-home supportive services. You must have traveled to a work site or otherwise left your home to perform job duties in order to potentially qualify.
We Can Help Fight for Your Rights in the Age of COVID-19
As the pandemic continues, workplaces all over the state are struggling to adjust to our temporary new normal. While California has appreciably taken steps to extend additional COVID-19-specific protections for employees, some employers will unfortunately still fail to honor the rights afforded to those working despite the threat of COVID-19. If you believe your employer is failing to abide by AB 685, SB 1159, or any other COVID-19 regulation threatening your safety, we want to help. Our team at Marder Employment Law has over 25 years of experience helping fight for the rights of employees.
If you believe your employer is failing to follow new COVID-19 laws, call (888) 796-4010 or contact us online to schedule a free initial consultation.