September 21, 2020

Three New California Bills Greatly Expand Employers’ Obligations Regarding COVID-19 and Employee Leave

On September 17, 2020 Governor Gavin Newsom signed three bills (SB 1159, AB 685, and SB 1383) expanding workers’ protections in relation to COVID-19 exposure in the workplace, and expanding the California Family Rights Act. All three bills will require employers to take specific steps in response to COVID-19-related issues, and to modify and update their leave policies and practices.

SB 1159
SB 1159 provides that under certain circumstances, a “disputable presumption” exists that workers who contract a COVID-19-related injury (i.e., illness or death) have done so at work and are thus eligible for workers’ compensation benefits. The bill is effective immediately and set to expire on January 1, 2023.

The “disputable presumption” exists when an employee: (1) tested positive for COVID-19 within 14 days after performing labor or services at the employee’s place of work at the employer’s direction; (2) performed the labor or services between July 6, 2020 and January 1, 2023; and (3) tested positive during a period of an outbreak at the employee’s specific place of employment.

The “disputable presumption” is rebuttable only by evidence discovered within 45 days after the applicable investigation period. Such evidence may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of work and evidence of an employee’s nonoccupational risks of COVID-19 infection.

SB 1159 also creates new reporting requirements for employers. When an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” the employer must report to their claims administrator in writing via e-mail or fax within three business days all of the following: (1) an employee has tested positive for COVID-19 (without providing identifiable information unless the employee asserts the infection is work related or has filed a claim form pursuant to Labor Code Section 5401.); (2) the date that the employee tested positive; (3) the address or addresses of the employee’s specific place(s) of work during the 14-day period preceding the date of the employee’s positive test; and (4) the highest number of employees who reported to work at the employee’s specific place of work in the 45-day period preceding the last day the employee worked at each particular location.

AB 685
AB 685 creates new reporting requirements for employers and strengthens Cal/OSHA’s enforcement authority. The bill is effective on January 1, 2021.

AB 685 requires employers to take the following actions within one business day after notice of potential exposure: (1) provide notice to all employees who were on the premises at the same worksite as a sick individual within the infectious period that they may have been exposed to COVID-19, and (2) provide notice to the exclusive representative (e.g., attorneys and unions), if any, of notified employees. The notices must include information regarding COVID-19-related benefits and options (e.g., workers’ compensation and paid sick leave) and the disinfection and safety plan that the employer plans to implement and complete per CDC guidelines. Employers must also maintain these records for at least three years.

The bill also requires employers to report a worksite “outbreak” of COVID-19 (as defined by the State Department of Public Health; currently three or more laboratory-confirmed cases identified within two weeks in individuals of different households) to the local public health agency. Specifically, in the event of an “outbreak,” the employer must provide the local public health agency with the names, number, occupation, and worksite of any employees with a laboratory-confirmed case of COVID-19, a positive COVID-19 diagnosis from a licensed healthcare provider, a COVID-19-related order to isolate provided by a public health official, or who died due to COVID-19.

In addition, AB 685 reduces the timeframe for COVID-19 citations. Ordinarily, Cal/OSHA creates a rebuttable presumption that a “serious violation” exists in the workplace and has the division send a standardized form containing descriptions of the alleged violation 15 days before issuing the citation. The standardized form provides an employer the opportunity to rebut the presumption. Under AB 685, there is no rebuttable presumption of a “serious violation” relating to a COVID-19 violation. As such, employers will not receive the standardized form or have the opportunity to rebut the presumption.

SB 1383
SB 1383 expands coverage under the California Family Rights Act (the “CFRA”) to all employers with five or more employees.  The bill is effective on January 1, 2021.

Generally, the CFRA requires employers to provide up to 12 weeks of protected unpaid leave during each 12-month period to employees who have worked 1,250 hours during the previous year, if needed due to the employee’s own serious health condition, to bond with a new child, or to care for a qualifying family member with a serious health condition.  Previously, employers with fewer than 50 employees within a 75-mile radius were exempt from CFRA, and employers with fewer than 20 employees within a 75-mile radius were exempt from providing leave for the birth, adoption, or foster care of a child through the New Parent Leave Act. SB 1383, however, expands the CFRA to cover all employers with five or more employees.

SB 1383 also expands the definition of “family members” to include not only the previously listed child, parent, spouse, or domestic partner, but also grandparent, grandchild, and sibling.

SB 1383 also repeals the New Parent Leave Act, and expands parental leave under the CFRA to now require that when both parents of a child are employed by the same employer, the employer must grant up to 12 weeks of leave to each parent for the birth, adoption, or foster care of a child. Previously, the employer only had to grant a combined total of 12 weeks of leave between the two parents.

The law also requires employers to provide military exigency leave; specifically: up to 12 weeks of unpaid job protected leave during any 12-month period made necessary by covered active United States military duty of the employee’s spouse, domestic partner, or parent.

Contact Payne & Fears LLP if you need assistance with understanding or implementing the guidance contained in these new bills, including updating employee handbooks or agreements.