Several new laws have come out to support the protection of employees from contracting Covid-19 at work. The most sweeping (so sweeping that there may be some legal challenges) are from Cal/OSHA.
This particular set of changes requires employers of any size to establish, implement, and maintain an effective written COVID-19 Prevention Program which includes:
· Identifying, evaluating and investigating employee exposures to COVID-19 health hazards.
· Implementing effective policies and procedures to correct unsafe and unhealthy conditions (such as safe physical distancing, modifying the workplace and staggering work schedules).
· PPE: Providing (or reimbursing) and ensuring workers wear face coverings in the workplace. If an accommodation is needed, provide face shields, drapes or other possible safety measures.
· Provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under federal, state, or local laws.
· System for communicating, responding to COVID-19 cases in the workplace.
· Reporting, record keeping, and access.
· Return to work criteria.
Here is a free resource from Cal/OSHA to help you develop your written program: COVID-19 Model Prevention Program. NLS can also help as much or as little as you need.
There is also a sweeping set of requirements for employers with multiple COVID-19 infections and outbreaks at the worksite:
1. Employers must follow the testing requirements and notify public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period). Defined below.
2. Offer on or offsite, confidential COVID-19 testing at no cost to employees who had potential COVID-19 exposure in the workplace during their work hours so employees are paid for the time and travel. Talk to an attorney if you plan to do your own testing.
3. Provide employees with information on all applicable time off or other benefits such as workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, and anti-retaliation/anti-discrimination protections.
4. Notify the local health department within 48 hours after learning of three or more COVID-19 cases to obtain guidance.
5. Maintain a record of and track all COVID-19 cases, while ensuring medical information remains confidential. The records must be made available to employees after identifying information is removed. Records must be added to Cal/OSHA Log 300A each year.
6. When a COVID-19-related illness requires inpatient hospitalization or death occurs, the employer must report this immediately to the nearest Cal/OSHA enforcement district office.
Applies to all employees and employers, with the following exceptions:
· Places of employment with one employee who does not have contact with other people
· Employees working from home
· Employees already covered by Cal/OSHA’s aerosol transmission standard
Additional Requirements:
· Create and maintain an Illness and Injury Prevention Program (IIPP) with rules to establish, implement, and maintain a written COVID-19 Prevention Program. (See above.) IIPPs are already a requirement for all employers and this just adds more detail.
· Implement a disinfection and safety plan per CDC guidelines.
Employers must continue salary and benefits for up to 14 days while person is absent from workplace due to COVID-19. If employees are not allowed to come to work, but able and available to work, employers must continue to maintain an employee’s earnings, seniority, and all other employee rights and benefits, as if the employee had not been removed from their job.
o Employees may use sick leave benefits and or state benefits to maintain earnings when not covered by workers compensation.
Exceptions to Pay Continuation Requirement:
· Worksites with one employee who doesn’t have contact with other people
· Employees working from home
· Employees when covered by Cal-OSHA’s Aerosol Transmissible Disease Regulations (CCR 5199)
· Any period of time during which employee is unable to work for reasons other than preventing COVID transmission
· When employer can demonstrate that COVID exposure is not work-related
Return to Work Criteria:
COVID-19 cases with symptoms can't return to work until:
1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without medication use.
2. Symptoms have improved.
3. 10 days have passed since symptoms first appeared.
· Positive COVID-19 cases without symptoms can't return until a minimum of 10 days have passed since positive test specimen collection.
· Negative COVID-19 test not required to return to work.
· If ordered to isolate or quarantine, employee cannot return until the quarantine period expires.
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SB 1159 – Workers Compensation: COVID-19
Effective Immediately through 1/1/2023
SB 1159 expands workers’ compensation coverage for employees who contract COVID-19. If certain criteria are met, it will be automatically presumed that the employee contracted COVID-19 in the workplace, making them eligible for workers compensation.
· Codifies previous order of rebuttable presumption of work-relatedness for workers who contracted COVID-19 between March 19 – July 5, 2020.
· Creates a “rebuttable presumption” for first responders and health care personnel.
o Employers have 30-days to reject and rebut these claims.
· Applies to all companies with five or more employees when there is an “outbreak” in the workplace. This law presumes:
o The employee tests positive within 14 days after working at the place of employment
o The date worked is after July 6, 2020 and;
o The positive test occurred during an “outbreak” at the employee’s place of employment
Employers have 45 days to reject a claim with evidence such as measures taken to reduce transmission of Covid or employee’s risks of COVID-19 infection outside of work such as a spouse in a high-risk occupation.
An outbreak is defined as:
· 100 employees or fewer at a specific location, four employees test positive for COVID-19 within 14 days of each other.
· More than 100 employees at a specific location, 4% of the employee population test positive within 14 days.
· Public authorities order the Company to close due to risk of COVID-19 infection.
Reporting Requirements:
· When a Company with five or more employees, “knows or reasonably should know” that an employee tested positive for COVID-19; the employer must inform their workers’ compensation within three business days when:
o An employee tested positive,
o The date when the employee tested positive,
o The address of the employee’s worksite, and;
o Highest number of employees who reported to the worksite within 45 days of when the employee last worked.
Retroactivity: An employer who is aware of any employee testing positive on or after July 6, 2020, but before September 17, 2020 (effective date), must report the employee information described above to their workers’ compensation claims administrator within 30 days.
