Governor Newsom signed COVID-19 related legislation into law this month that brings continued changes and challenges for most CA employers. The laws provide paid sick leave benefits for employees excluded under FFCRA, expand presumption of Workers’ Compensation liability for COVID-19 illness claims, and create additional notice and reporting obligations for COVID-19 workplace exposure. Keep reading to learn more about this next wave of COVID-19 obligations for CA employers.
California AB 1867 signed into law on September 9, 2020
What it does: Extends COVID-19 paid sick leave benefits to those previously excluded by FFCRA. Must be implemented no later than September 19, 2020 and is available until December 31, 2020 or the expiration of FFCRA, whichever is the latter. The details:
Requires private employers with more than 500 employees to provide up to 80 hours of COVID-19 related supplemental paid sick leave. Includes all public and private employers of first responders, health care employees and food service workers.
Employees are entitled to use this paid sick leave when they (1) are unable to work if they are subject to a federal, state, or local quarantine or isolation order related to COVID-19; or (2) advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19
Must be available for immediate use upon the employee’s oral or written request
Paid at an hourly rate equivalent to whichever is the highest - the employee’s regular rate of pay for the last pay period or the state or local minimum wage. Subject to cap of $511 per day / $5,110 total.
Posting requirements for covered employers
Note, employers subject to EO N-51-20 who already provide additional paid sick leave, or who voluntarily opted to provide FFCRA, or who were required to provide additional paid sick leave under local law are NOT required to provide this additional leave
Employers subject to this notice, with the exception of employers in the food sector, must include notice of the amount of paid sick leave available each pay period (pay stub notice)
Employers must maintain records of hours worked, leave provided and leave used for at least three years
Also included in AB 1867
Employees working in a food facility must be permitted to wash their hands every 30 minutes and additionally as needed
Next steps: As of September 19, 2020, covered employers will have implemented the provisions of the paid sick leave including posting and pay stub notices.
Resources:
California SB 1159 signed into law on September 17, 2020
What it does: Expands Presumption of Workers’ Compensation Liability for COVID-19 Illness Claims. This is emergency legislation that is effective immediately.
The details:
Replaces Executive Order N-62-20 which expired July 5, 2020
In effect July 6, 2020 – January 1, 2023
Creates a presumption that an illness or death resulting from COVID-19 has arisen out of and in the course and scope of employment
The presumption is disputable with evidence of the following: measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment; the employee’s non-occupational risks of COVID-19 infection; statements made by the employee; and any other evidence normally used to dispute a work-related injury
Applies to all fire fighters, peace officers, fire and rescue coordinators, and certain kinds of health care and health facility workers, including in-home supportive service providers that provide services outside of their home
Applies to all employees of employers with 5 or more employees who test positive for COVID-19 during an “outbreak”* at the employee’s specific place of employment within 14 days after a day that the employee performed labor or services at the employee's place of employment at the employer’s direction
For the purposes of administering the "outbreak" presumption, when an employee tests positive for COVID-19, an employer must report this in writing to its claims administrator within 3 business days
*An “outbreak” is defined as: four employees who test positive in a specific place of employment with 100 or fewer employees; or 4% of the employees test positive in a specific place of employment with more than 100 employees; or the specific place of employment is subject to closure by order of the local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19
Next steps: Employers should be prepared to respond appropriately when an employee has contracted COVID-19 and coordinate with their workers’ compensation insurance carrier as necessary.
Resources:
California AB 685 signed into law on September 17, 2020
What it does: Imposes new notice and reporting obligations for COVID-19 workplace exposure and enhances Cal/OSHA enforcement abilities. Effective January 1, 2021.
The details:
When a workplace poses a risk of an “imminent hazard” due to COVID-19, Cal/OSHA has the authority to issue a stop-work order, bypassing the standard 15-day notice period for serious violations
When there is a positive confirmed case of COVID-19 in the workplace, employers must provide written notice to all employees (including subcontractors and union representatives) who were at the worksite when a potentially infected person was there and who was potentially exposed, within one business day of receiving notice
Compliant notices are free from any personally identifiable information or personal health details; distributed in “a manner which employer normally communicates employment-related information”; written in English as well as the language understood by the majority of employees; include information on COVID-19 related benefits the employee is entitled to receive; and include details on the disinfection and safety plan implemented in response, per CDC guidelines
When the number of cases meets the definition of an outbreak (as defined by the California Department of Public Health), the employer must also notify their local health department within 48 hours
Next steps: Assess your organization’s COVID-19 Guidance Document and Site-Specific Protection Plan to ensure that you have a detailed process in place which satisfies these new reporting and notice requirements.
Resources:
One of the best ways your organization can protect and support your employees, mitigate risk and respond appropriately to these challenges is to have a COVID-19 Guidance Document and Site-Specific Protection Plan in place. For more on this see Edna’s previously recorded webinar, COVID-19 Reopening the Doors. Please contact edna.nakamoto@thehrmanager.com or your THRM consultant for any support you need in developing or updating your organization’s plan.