A Whole New World: California’s Response to Potential Coronavirus Outbreak in the Workplace

By Patty Chen, Esq.

As the world grapples with the ever-changing landscape of the global coronavirus pandemic, California employers also have had to adapt quickly to the ever-changing requirements and laws related to dealing with an employee who potentially contracted coronavirus at work. Employees who contracted coronavirus at work and meet specified requirements may have a workers’ compensation claim.  Additionally, employers now must meet specific requirements to notify, record and report a potential coronavirus exposure in their workplaces.

Rebuttable Presumption for Coronavirus Cases During Workplace “Outbreaks”

Workers’ compensation generally provides benefits for workers who are injured or become ill while working. Under the California workers’ compensation system, workers need to present some medical evidence that their illness or injury was related to work in order to qualify for benefits. To meet that important threshold, workers need to establish some reasonable factual basis for asserting that the workplace caused their illness or injury. 

A worker may be eligible for workers’ compensation if he or she tested positive for the coronavirus and was exposed to it at work. But, given the wide reach of the coronavirus, it may be difficult to identify where the worker was exposed to it. 

In California, for employers with 5 or more workers, there is a rebuttable presumption that a worker was exposed to coronavirus at work if there was a coronavirus “outbreak” at the worker’s “specific place of employment.” This presumption has already gone into effect and relates back to cases arising or after July 6, 2020. It will apply until January 1, 2023.

A “specific place of employment” is defined as “the building, store, facility, or agricultural field where a worker performs work at the employer’s direction.”

A COVID-19 “outbreak” occurs if, within 14 calendar days, one of the following occurs: 

1. 4 workers test positive for COVID-19 (if the employer has 100 workers or fewer at a specific place of employment); 
2. 4% of workers who reported to worker’s specific place of employment test positive for COVID-19 (if the employer has more than 100 workers at a specific place of employment); or 
3. A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, or Cal/OSHA due to risk of infection with COVID-19.  

Additionally, all of the following circumstances must exist for the rebuttable presumption to apply:

1. The worker tests positive within 14 days after a day that the worker performed labor or services at the worker’s place of employment at the employer’s direction;
2. The day on which the worker performed labor or services at the worker’s place of employment at the employer’s direction that was on or after July 6, 2020; 
3. The date of injury is the last date the worker performed labor or services at the worker’s place of employment at the employer’s direction prior to the positive test; and
4. The worker’s positive test occurred during an outbreak at the worker’s specific place of employment.

If the worker meets the above criteria, they are entitled to full hospital, surgical, medical treatment, disability indemnity and death benefits. But workers only can receive temporary benefits after exhausting all available COVID-19-related paid sick leave benefits (e.g., FCRA’s Emergency Paid Sick Leave or California’s supplemental paid sick leave).

Importantly for employers, the presumption is disputable and may be refuted by other evidence, such as: 

1. Measures in place to reduce potential transmission of COVID-19 in the worker’s place of employment;  
2. The worker’s non-occupational risks of contracting COVID-19; and 
3. Any other evidence normally used to dispute a claim.

An employer has up to 45 days to investigate and make a decision whether to accept or deny a workers’ compensation claim. If the employer fails to reject the claim within 45 days, the worker’s injury or illness is presumed compensable, and the employer then can rebut that presumption only with evidence it discovered after the 45-day period. 

New Reporting Requirements

Effective January 1, 2021, SB 1159 also created new reporting requirements for employers. When an employer knows or reasonably should know that a worker has tested positive for COVID-19, the employer must report to his or her claims administrator the following information in writing within 3 business days:

1. That a worker has tested positive (note that personally identifiable information about the worker should be provided only if the worker asserts the infection is work-related or has filed a claim form under Labor Code 5401);
2. The date the worker tested positive (i.e., the date the specimen was collected for testing);
3. The address(es) of the worker’s specific place(s) of employment during the 14-day period preceding the date of the worker’s positive test; and
4. The highest number of workers who reported to work at the worker’s specific place of employment in the 45-day period preceding the last day the worker worked at each specific place of employment.

Retroactively, if an employer is aware that a worker tested positive between July 6, 2020 and September 17, 2020, the employer must report the information in items #1-3 above to his or her claims administrator by October 29, 2020 and report the highest number of workers who reported to work at each of the worker’s specific places of employment on any work date between July 6, 2020 and September 17, 2020. This information will be used by the claims administrator to determine whether a COVID-19 outbreak has occurred.

California employers with workers working remotely at least part-time during the pandemic should note that SB 1159 specifies that “place of employment” does not include a worker’s home or residence (unless the worker provides home health care services). Employers, therefore, would not need to report workers who test positive for COVID-19 but had only worked from home prior to the statute’s effective date. However, the statute likely requires reporting the confirmed case of a remote worker who tested positive prior to the statute’s effective date if that worker also worked at onsite anytime between July 6 and the effective date.

Employers who fail to report the above information, or who intentionally submit false or misleading information, are subject to a $10,000 penalty assessed by the California Labor Commissioner.

COVID-19 Recording and Reporting Requirements

Effective January 1, 2021, employers must provide multiple notices within one business day after receiving notice of a potential COVID-19 exposure:

• Written notice to all workers and employers of subcontracted workers who were at the worksite within the infectious period;
• Written notice to worker representatives, including unions and, if applicable, attorneys who represent the affected workers;
• Written notice regarding COVID-19-related benefits, including workers’ compensation benefits, COVID-19 leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies; and
• Written notice to workers regarding the company’s disinfection protocols and safety plan to eliminate any further exposures, per CDC guidelines.

Employers also must notify their local public health department within 48 hours if an outbreak occurs at the worksite. An outbreak occurs when there have been three lab-confirmed cases within two weeks. 

The California Division of Occupational Safety and Health (Cal/OSHA) can immediately shut down a business without prior notice if it concludes there is an imminent risk of serious physical harm due to COVID-19, and to issue significant monetary citations for serious violations relating to COVID-19.

Employers also must draft and implement a separate COVID-19 Pandemic Plan that (1) addresses all COVID-19 exposures, (2) identifies the manner in which the employer intends to correct such exposures, and (3) indicates how the employer will enforce its procedures, train its workers, conduct inspections and review its plan for effectiveness.

To discuss the above topic, please contact Patty Chen at patty@encorelaw.com or any other Encore Law attorney.