Employment Law: Statutory and Regulatory Changes

• Publication year: 2020
• Author: By Kathleen A. Brewer

Employment Law: Statutory and Regulatory Changes

By Kathleen A. Brewer

From the COVID-19 pandemic to the plague of wage disparity, the California Legislature addressed many critical employment issues in 2020.¹ Curbing the spread of COVID-19 in California’s workplaces was chief among lawmakers’ concerns. This article summarizes the results of a massive legislative and regulatory effort to inhibit the spread of coronavirus in places of employment. In addition to pandemic-related legislation, lawmakers passed bills that expanded the California Family Rights Act to cover small employers, imposed meticulous pay data reporting requirements on large employers, and revised AB 5’s independent contractor analysis. This article recaps those and other legislative changes.

Covid-related Changes

Unless otherwise noted, the provisions discussed below became operative on January 1, 2021.

Notification Requirements

AB 685 added Labor Code section 6409.6 to the California Occupational Safety and Health Act. Section 6409.6 contains sweeping notification requirements for employers who learn of a potential exposure to COVID-19 within their workforces.

Notification to Employees of Possible Exposure. Upon receiving notice of potential exposure, an employer must do the following within one business day of such notice:²

• Provide written notice to all employees “who were on the premises at the same worksite as the quali- fying individual³ within the infectious period that they may have been exposed to COVID–19.” Notice must also be given to employers of any subcontracted employees who were on the premises. The notice must be transmitted via the employer’s usual communication method, be designed to be received within one business day, and be in both English and the language under- stood by the majority of employees.
• Provide written notice to the exclusive representative, if any, of the potentially exposed employees.
• Inform all employees of the disinfection and safety measures the employer plans to implement.
• Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding available COVID–19– related benefits, including leave options and information about antiretaliation and antidis-crimination protections.

Employers must maintain copies of all employee notifications for at least three years.⁴ Violations of the first three notification requirements listed above can expose employers to Cal-OSHA citations and civil penalties.⁵

Notification of Outbreaks to Local Health Department. When an employer learns of an “outbreak” in its workplace, the employer must, within 48 hours, notify the Local Health Department (LHD) in the jurisdiction of the worksite.⁶ The California Department of Public Health (CDPH) currently defines an outbreak within non-healthcare or non-residential congregate setting workplaces as three or more cases within two weeks in individuals of different households.⁷ The employer’s notification to the LHD must include the name, occupation and worksite of employees who are “qualifying individuals.”⁸ After the initial notification, the employer is under a continuing duty to notify the LHD of subsequent laboratory-confirmed cases at the worksite.

Applicability of Notice Requirements. The notification requirements apply to both private and public employers. However, the duty to notify LHD’s of outbreaks does not apply to statutorily defined “health facilities” (but health facilities must comply with the employee notification requirements).⁹ Additionally, the notification requirements do not apply to employees whose jobs require them to con- duct COVID-19 testing or care for COVID-19 patients, unless the “qualifying individual is an employee at the same worksite.”¹⁰

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Employee Privacy. Employers may not require employees to disclose medical information, and no personally identifiable employee information may be publicly divulged.¹¹

Protection from Retaliation

Employers may not retaliate against employees for disclosing a positive COVID-19 test or for disclosing an order to quarantine.¹² Employees may file retaliation complaints with the Department of Labor Standards Enforcement (DLSE) under Labor Code section 98.6.

PPE for Healthcare Workers

AB 2537 and SB 275 added provisions to the Labor Code that require employers in certain healthcare settings to stockpile and supply employees with Personal Protective Equipment (PPE)¹³

General Acute Care Hospitals. Under Labor Code section 6403.3, general acute care hospitals¹⁴ must:

• Supply PPE to employees who work with patients or who provide services that directly support patient care and ensure that employees use the PPE provided.¹⁵
• Beginning April 1, 2021, maintain a three-month supply of N95 respirators, powered air-purifying respirators, elastomeric air-purifying respirators, surgical masks, isolation gowns, eye protection, and shoe coverings.¹⁶
• Establish written procedures for periodically determining the quantity and types of equipment normally used by the hospital.¹⁷
• Upon request, provide the Cal/OSHA with stockpile inventories and written procedures.¹⁸
• By January 15, 2021, be prepared to report to the Department of Industrial Relations, upon request and under penalty of perjury, their "highest seven-day consecutive daily average consumption of personal protective equipment" in 2019.¹⁹

Health Care Employers. Labor Code section 6403.1 requires health care employers, as defined,²⁰ to:

• Supply appropriate PPE to their health care workers, ensure that workers use the PPE, and provide appropriate PPE to a health care worker upon request.²¹
• Maintain an inventory of unexpired, unused PPE for use in the event of statewide or local health emergencies.²²
• Beginning January 1, 2023, or 365 days after the DIR promulgates regulations, whichever is later, maintain a PPE inventory at least sufficient for 45 days of surge consumption (as defined by the regulations).²³

Enforcement of Stockpile Requirements. Each violation of the stockpile and inventory requirements subjects general acute care hospitals and other health care employers to a mandatory penalty of up to $25,000.²⁴ Certain waivers and exceptions may apply, particularly where inventory problems are caused by circumstances beyond the employer's control.²⁵

Workers' Compensation Presumption

Effective September 17, 2020, SB 1159 added several sections to the Labor Code that make COVID-19 a presumptive workplace injury for purposes of coverage under the Workers' Compensation Act (Labor Code § 3200, et seq.).

Applicability of the Presumption. The presumption applies as follows:

• Employees who tested positive for COVID-19 between March 19 and July 5, 2020. The presumption applies to this group of workers if they worked at their place of employment within 14 days before testing positive.²⁶
• First Responders and Health Care Workers who test positive for COVID-19 after July 5, 2020. The presumption applies to firefighters, peace officers, emergency medical personnel and health care workers, as listed, if they worked at their place of employment within 14 days before testing positive.²⁷
• Other Employees who test positive for COVID-19 after July 5, 2020. The presumption applies to employees who test positive on or after July 6, 2020, and are not among the listed first responders and health care workers, if: a) the employer has five or more employees; and b) the employee tested positive during an "outbreak"²⁸ at the employee's workplace.²⁹

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Disputing the Presumption. The presumption is rebuttable if "other evidence" is presented. "Other evidence" can include an employee's nonoccupational risks of contracting COVID-19 and the workplace risk-reduction measures taken by the employer. The presumption is binding if not controverted. A claim not rejected within 45 days of its filing, or within 30 days for first responders and healthcare workers, is presumed compensable.³⁰

Disability Benefits and Exhaustion of Sick Leave. The workers' compensation benefits available to COVD-positive employees include "full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by" the Workers' Compensation Act. However, employees must exhaust their COVD-specific paid sick leave before temporary disability benefits will be payable.³¹

Notification to Claims Administrator. When an employer, other than an employer of first responders or health care workers, learns, or reasonably should know, that an employee has tested positive for COVID-19 after July 5, 2020, the employer must, within three days, report the following information to the claims administrator:

• An employee has tested positive;
• The date the positive specimen was collected;
• The address(es) where the employee worked during the 14 days prior to being tested;
• The highest number of employees working at the particular work site during the 45 days before the last date the positive-testing employee worked at the site.³²

Cal/OSHA Orders Prohibiting Use

Labor Code section 6325 authorizes Cal/OSHA to issue Orders Prohibiting Use (OPU) when dangerous conditions make a workplace unsafe. To justify issuance of an OPU, the hazard must be imminent, and the prohibition must be limited to the area where the dangerous condition is present. AB 685 amended section 6325 to authorize, between January 1, 2021, and January 1, 2023, the shutdown of an entire worksite or a particular work area, process or operation that exposes workers to a risk of contracting COVID-19. The risk must constitute an imminent hazard, and the prohibition must be tailored to the extent of the hazard and may not interrupt certain governmental functions.³³

Cal/OSHA Covid-related Safety Regulations

Effective November 30, 2020, employers must implement measures to prevent the spread of COVID-19 in the workplace. The required measures are set forth in the Emergency Temporary Standards (ETS) adopted by the California Occupational Health and Safety Standards Board (OSHSB) and promulgated as General Industry Safety...