Analysis

Calif.'s New Virus Laws Will Keep Employers On Their Toes

By Danielle Nichole Smith
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Law360 (September 21, 2020, 8:51 PM EDT) -- California Gov. Gavin Newsom recently signed off on a trio of laws that provide workers with more benefits and protections amid the coronavirus pandemic while creating new requirements for their employers. Here, Law360 looks at three takeaways.

The bills — S.B. 1383, S.B. 1159 and A.B. 685 — got Newsom's blessing Thursday, adding to other worker-focused legislation he signed recently, including one providing paid sick leave. While S.B. 1383 and A.B. 685 won't take effect until Jan. 1, S.B. 1159 took effect immediately.

S.B. 1159 and A.B. 685 both seem geared toward preventing outbreaks of COVID-19 in the workplace and allowing for more agency enforcement when they do occur, said Littler Mendelson PC's Alka Ramchandani-Raj. 

"Basically, they're putting the employer on notice that they have to act quickly once they find out someone has COVID," Ramchandani-Raj said. "One, to protect the employee and make sure they have coverage, and secondly, to protect other employees from exposure issues."

A "Leg Up" for Employees on Workers' Comp

S.B. 1159, introduced by Sen. Jerry Hill, D-San Mateo, creates a presumption that certain covered workers' illnesses or deaths from COVID-19 are work-related and entitles them to workers' compensation, putting the onus on their employers to rebut the presumption.

Newsom previously established a rebuttable presumption in a May executive order that expired in July. S.B. 1159 is retroactive to July and will be in effect until January 2023.

The law gives covered employees "a leg up" on their workers' comp claims, according to Boxer & Gerson LLP's Julius Young. In addition to first responders and health care workers, the law also applies to those who test positive during a workplace outbreak, as defined by the bill.

However, Young pointed out that workers not covered by the law can still file coronavirus-related workers' compensation claims, though they aren't entitled to the presumptions under the law.

"I think that can kind of get lost in this discussion, and some people may be thinking that if you don't come within an outbreak or you're not a specified job title you can't pursue a claim," Young said. "That's not true.

Benjamin M. Ebbink, a member of Fisher Phillips' COVID-19 task force, said the law is "yet another reason and reminder for employers to do what they can to follow guidelines and prevent transmission in the workplace."

According to the bill, employers can try to rebut a presumption by pointing to measures taken to reduce the potential transmission or showing a worker's nonoccupational risks of infection. But Ebbink said that the guidance was "a little fuzzy" and not as prescriptive as that of an earlier Illinois law that also created a rebuttable presumption for certain workers' coronavirus-related workers' comp claims.

"Even in a state like Illinois that has a very clear, you do X, Y and Z, and you can rebut the presumption, I think there's going to be a lot of litigation over whether the employer actually satisfied those criteria," Ebbink said.

The number of workers' compensation claims is also likely to increase with S.B. 1159, as it has in the wake of COVID-19, according to Ramchandani-Raj. 

"Employers should be ready to be able to file the paperwork that they need to provide that protection to the employee, and they should be really quick at gathering evidence to dispute the presumption as needed," Ramchandani-Raj said.

A "Sword" for Cal/OSHA Enforcement

Charles Rondeau, the head of Dordulian Law Group's workers' compensation division, said that if S.B. 1159 is in some ways like a shield for workers, A.B. 685 is like a sword, as employers can face "serious consequences if they don't deal with the COVID-19 situation in a reasonable fashion."

A.B. 685, introduced by Assemblymember Eloise Gómez Reyes, D-San Bernardino, requires employers to notify workers within one business day of receiving notice of a potential exposure to COVID-19. Employers must also notify local public health officials within 48 hours if the number of cases they have qualifies as an outbreak.

Ramchandani-Raj said the law broadens employers' notification requirements beyond what the Centers for Disease Control and Prevention and California's Division of Occupational Safety and Health has indicated is appropriate by including notice to third parties, such as subcontractors and unions.

"I think the biggest mechanism that they're looking at with A.B. 685 is tracking," she said. "They're trying to figure out a device to track the different COVID cases that are happening in the workplace."

Josh Henderson, a partner at Norton Rose Fulbright, said the different notice obligations to different stakeholders could potentially raise privacy issues. For instance, the law directs employers to give unions the information provided on a particular Cal/OSHA form, he said. However, following those forms would require disclosing the name of the employee with a positive COVID-19 test, according to Henderson.

"I think the privacy considerations are something that didn't get enough attention and haven't really been resolved in a way that can give employers any sense of comfort in terms of what steps they have to take to comply with the statute," Henderson said.

The law also gives the California Division of Occupational Safety and Health explicit authority to shut down businesses it believes are exposing their workers to risk of infection to the point that they're an imminent hazard to employees.

"Essentially, employers have to be careful to make sure that they have their policy in place, that they are enforcing the policies that they have to ensure employees are doing social distancing and they are wearing face coverings," Ramchandani-Raj said. "Because if Cal/OSHA comes in, they do run that risk of having their operations shut down."

More Family Members Qualify for Leave

Newsom also signed S.B. 1383, a law introduced by Sen. Hannah-Beth Jackson, D-Santa Barbara, which requires companies with as few as five employees to hold people's jobs for 12 weeks while they take family or medical leave.

Young said that the law was a "big plus for workers," noting that as an attorney who handles injured workers' claims, he often sees people who need home care from their family.

Prior to S.B. 1383, Golden State workers at companies with 20 or more employees saw their jobs protected by state law if they took parental leave, and workers at companies with more than 50 employees saw their jobs protected by federal law if they took leave to deal with a family illness or personal illness.

Ebbink pointed out that while a lot of the focus has been on the protections expanded to workers at smaller businesses, the law introduced changes for large businesses, too, since it broadens the definition of family member to include siblings, grandparents, grandchildren and adult children.

"That's going to apply to employers of all sizes, so even employers that were already complying with the law have some things they need to pay attention to," Ebbink said. "It also sets up a weird stacking issue, because now the California law and the federal law are out of sync in terms of the family members."

Rondeau said the law seemed to him to go "hand-in-hand" with the other legislation.

"It makes sense," Rondeau said. "The whole idea here is we want to reduce community transmission, and obviously one way to reduce community transmission is to create as much incentive for employers and employees together to have people, if they test positive or even believe they might have been exposed, to self-isolate and quarantine."

--Additional reporting by Emily Brill. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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