As the COVID-19 pandemic draws on, California continues to pass new legislation to protect employees.
Both SB 1159 and AB 685 expand workers compensation and reporting while presuming an employee contracted COVID-19 at work, when certain criteria are established, thereby shifting the burden of proof to the employer to show otherwise.
“Protecting workers is critical to slowing the spread of the virus,” Governor Gavin Newsom said in a statement. “These two laws will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”
SB 1159 expands access to workers’ compensation for first responders, healthcare workers and other employees who contract COVID-19 within 14 days of a notified workplace outbreak.
The bill defines an outbreak as:
- Four employees testing positive with 100 or fewer employees at a specific place of employment.
- Four percent of employees testing positive with employers of more than 100 employees at a specific place of employment.
- If the specific place of employment is ordered closed by a local health department, State Department of Public Health, the Division of Occupational Safety and Health or a school superintendent.
These provisions, codified as Labor Code Sections 3212.86-3212.88, are effective immediately as urgent legislation. SB 1159 protections are retroactively effective from July 6, 2020, through Jan. 1, 2023.
AB 685 requires employers to report COVID-19 cases to employees and the California Division of Occupational Safety and Health (Cal/OSHA) in a timely manner.
The bill requires employers that are alerted of a potential COVID-19 exposure to provide notice to permanent and subcontractor employees who could have been in contact with the potentially infected person. This notice must be provided within one day via a method typically used to communicate employment-related information. This notice must also include information about what COVID-19 related benefits employees are entitled to under federal, state and local laws; the employer’s sick pay and leave benefits; and any safety measures, disinfection protocols or precautions to prevent further exposure, in accordance with the Centers for Disease Control and Prevention (CDC).
As applicable, notice must also be given to the employees’ representatives, including unions and attorneys.
Employers must notify their local public health agency of a possible workplace outbreak within 48 hours of knowledge of the outbreak. Employers are required to keep a copy of all notices provided to employees for three years.
Cal/OSHA has enforcement authority to issue Stop Work Orders and citations where it identifies hazards threatening immediate and serious physical harm. AB 685 expands this power by allowing Cal/OSHA to issue citations for serious violations related to COVID-19 exposure immediately without advanced notification or soliciting rebuttal information. The cited employer may still appeal the citation.
The new law amends Labor Code Sections 6325 and 6432 and adds Section 6409.6. Employers who fail to comply with the new health and safety regulations could be subject to civil penalties and citations of up to $25,000 for each such violation.
The bill will take effect Jan. 1, 2021, and will expire Jan. 1, 2023.
SB 1159 and AB 685 are the latest among other legislative efforts to protect employees who contract COID-19 or care for someone who is. Newsom had already passed a worker protection package and signed the following bills into law:
AB 1867 provides 80 hours of paid sick leave for eligible California employees of employers with 500 or more employees nationwide and for healthcare or emergency responders who had been exempt from paid sick leave under the Family First Coronavirus Response Act. The bill also requires food employees working in any food facility to be permitted to wash their hands ever 30 minutes and additionally as needed.
SB 1383 expands the obligation for employers to provide up to 12 workweeks of unpaid job protected leave during any 12-month period for certain covered reasons to small employers that were not previously covered. SB 1383 also expands who eligible employees can care for to include grandparents, grandchildren and siblings.
