Two new COVID-19-related laws signed last week will affect reporting requirements when employees test positive as well as workers’ compensation coverage for those cases. California Gov. Gavin Newsom signed SB 1159 and AB 685 into law on September 17, 2020. SB 1159 re-establishes the presumption that an employee who tests positive for COVID-19 contracted the virus at the workplace for purposes of workers' compensation and requires employers to report any positive COVID-19 cases to their claims administrators. AB 685 requires employers to notify employees of a potential workplace exposure to COVID-19 and notify local health authorities of a COVID-19 outbreak. This Sidley Update provides an overview of the laws’ key provisions.
SB 1159 – Workers' Compensation Presumption and Reporting of Positive Tests
On May 6, 2020, Gov. Newsom signed an executive order flipping the presumption on COVID-19-related workers’ comp cases, declaring that employees with COVID-19-related illness would be presumed to have contracted the disease at work for purposes of awarding workers’ compensation benefits.1 That order expired on July 5. SB 1159 renews and codifies Newsom’s May 6 order and creates new prerequisites for the presumption as it applies to COVID-19 cases on or after July 6, 2020.
SB 1159 creates a presumption that an employee who reports having COVID-19 on or after July 6, 2020, contracted the virus at the workplace for purposes of workers’ compensation.2 The presumption applies only if the employee contracted the virus during a workplace “outbreak” and was present in the workplace in the 14 days before the employee took the COVID-19 test. SB 1159 defines an outbreak as any of the following occurring in a 14-day period:
- The employer has 100 employees or fewer at a worksite, and four employees test positive for COVID-19;
- the employer has more than 100 employees at a worksite, and 4 percent of those who reported to the worksite test positive for COVID-19; or
- the local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent orders a worksite to close due to a risk of COVID-19 infection.
An employer can rebut this presumption by presenting evidence of measures in place to reduce potential transmission of COVID-19 in the workplace or evidence of an employee’s risks of exposure to COVID-19 outside of work. The presumption does not apply to healthcare workers if the employer can establish that the employee did not have contact with a COVID-19-positive patient in the past 14 days.
Employers must act quickly to rebut the presumption. For workers’ compensation injuries occurring on or after July 6, 2020, the employer has 45 days from the date of the claim to gather and submit evidence to deny that the claim or the injury is presumed compensable. For cases before July 6, 2020, the employer had 30 days from the date of the claim to submit evidence.
SB 1159 also requires employers to notify their claims administrator whenever the employer knows or reasonably should know that an employee has tested positive for COVID-19. The notice must occur within three business days via email or fax and must include the date the employee tested positive, the address(es) of employment the employee worked at in the past 14 days, and the highest number of employees who reported to workplace in the past 45 days. The notice should not include any personally identifiable information about the employee unless the employee files a workers’ compensation claim.
Finally, SB 1159 eliminates the waiting period for temporary disability benefits, but the employee must exhaust all COVID-19-related sick leave benefits before using any disability benefits.
SB 1159 took effect upon the governor’s signature on September 17 and will remain in effect until January 1, 2023. The bill specifically states it is not intended to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
AB 685 – Reporting Workplace Outbreaks
AB 685, which goes into effect January 1, 2021, codifies requirements listed in the state-issued California Playbook regarding an employer’s obligations upon learning of COVID cases at the workplace.3
The first obligation is triggered when an employer receives notice of potential exposure of COVID-19 at the workplace. An employer “receives notice” of potential exposure when it is notified that an employee tested positive for, was diagnosed with, or died from COVID-19 or when a public health official or medical provider notifies the employer that an employee was exposed to COVID-19 at the worksite.
Upon receiving such notice, an employer must take the following steps within one business day:
- provide written notice to all employees and employers of subcontracted employees who were at the same worksite as the individual with COVID-19
- provide employees and employers of subcontractors with the disinfection and safety plan the employer plans to implement
- provide the potentially exposed employees with information about COVID-19-related benefits to which the employees may be entitled
If the employer learns of a COVID-19 “outbreak,” the employer shall notify the local public health agency of the names, number, occupation, and worksite of qualified individuals within 48 hours. Unlike SB 1159, AB 685 follows the State Department of Public Health’s definition of “outbreak,” which is currently defined by the California Playbook as three or more laboratory-confirmed cases of COVID-19 in a two-week period among employees from different households. Qualified individuals include anyone who has a confirmed case of COVID-19 via a positive test or diagnosis by a healthcare provider, has been ordered to isolate by a public health official, or died of COVID-19. In case of an “outbreak,” the employer must also provide notice to the exclusive bargaining (union) representative, if any, and the notice must contain the same information required in a Cal OSHA Form 300 injury and illness log.
The employer must keep a record of all notices for at least three years. Violations of the statute will be punishable by citation and civil penalty.
1 Executive Order N-62-20, available at https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.
2 SB 1159, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB1159.
3 AB 685, available at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685. The California COVID-19 Employer Playbook, issued July 28, 2020, is available at https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening--en.pdf.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
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