On September 17, Governor Newsom signed SB 1159 and AB 685 as part of his COVID-19 related worker protection package. SB 1159 creates a statutory rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at work. AB 685 strengthens Cal/OSHA’s COVID-19-related enforcement abilities and creates new notice and reporting requirements for employers in the case of COVID-19 exposure in the workplace. Find out more about how SB 1159 and AB 685 affect California businesses and workers below.

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Senate Bill (SB) 1159 extends the rebuttable presumption created by Executive Order (EO) N-62-20 that employees who test positive for or are diagnosed with COVID-19 were exposed to the virus at the workplace. This presumption makes employees that are “injured” as a result of COVID-19 exposure in the workplace eligible for workplace compensation benefits. As an emergency bill, its provisions take effect immediately as of September 17, 2020.

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Which Employees Qualify?

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In order for most employees to qualify for SB 1159’s COVID-19-related presumption, they must test positive during an outbreak at the employee’s “specific place of employment” and be employed by a business with five or more employees. The presumption only applies if all of the following conditions are met:

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• 1. The employee has tested positive for COVID-19 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.
• 2. The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. This must be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
• 3. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

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Under SB 1159, a “specific place of employment” may include a “building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” It does not include an employee’s home or residence, unless the employee provides home health care services within a home or residence.

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For employees working in the healthcare and public safety sectors to qualify for the presumption, the condition that there must be an “outbreak” at the workplace does not apply; they must only test positive for COVID-19 within 14 days of performing services at their place of employment on or after July 6, 2020.

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What Is An Outbreak?

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Within the context of SB 1159, a qualifying “outbreak” exists if one of the following occurs at a specific place of employment within 14 calendar days:

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• 1. If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
• 2. If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
• 3. A specific place of employment is ordered to close by a 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.

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Employer Reporting and Worker’s Compensation Requirements

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Qualifying employees who are protected under the presumption are entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” However, if a deceased employee has no dependents, their entitlements to any death benefits are waived. Employees must also use and exhaust all COVID-19-related paid sick leave benefits available to them before using other temporary disability benefits.

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Employers are required to report the following information in writing to their claims administrator within three business days when the employer knows or reasonably should know that an employee has tested positive for COVID-19:

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• 1. An employee has tested positive. For the purposes of this report, the employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a claim form pursuant to Section 5401.
• 2. The date that the employee tests positive, which is the date the specimen was collected for testing.
• 3. The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
• 4. The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

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Employers are also required to retroactively report any employees who tested positive on or after July 6, 2020, and prior to September 17, 2020. If an employer is aware that an employee tested positive during that period, the employer must report the information specified above to its claims administrator within 30 business days of September 17, 2020. However, for reports of cases between July 6, 2020 and September 17, 2020, the data specified in the fourth paragraph above is changed to “the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and the effective date of this section.”

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Non-compliance with SB 1159’s reporting requirements may lead to a civil penalty of up to $10,000, as determined by the Labor Commissioner.

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Assembly Bill (AB) 685 creates stricter reporting obligations for California employers in the event of COVID-19 exposure in the workplace and strengthens Cal/OSHA’s ability to issue Orders Prohibiting Use (OPU), also known as Stop Work Orders, to workplaces that pose a risk of a COVID-19-related “imminent hazard.” AB 685 will be in effect from January 1, 2021 until January 1, 2023.

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What Are Employers’ Notification Requirements?

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AB 865 requires employers to take all of the following actions within one business day if the employer or representative of the employer receives a notice of potential exposure to COVID-19:

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• 1. Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
• 2. Provide a written notice to the exclusive representative, if any, of employees under paragraph (1).
• 3. Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee.
• 4. Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

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Employers are also required to report information regarding a COVID-19 outbreak, as defined by the State Department of Public Health, to the local public health department within 48 hours of learning of the outbreak. This definition of a COVID-19 outbreak differs from the definition under the aforementioned workers’ compensation rule, and will be largely defined by the applicable local health department.

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In the case of COVID-19-related deaths, employers must notify the local public health agency in the jurisdiction of the worksite of the names, numbers, occupations, and worksite(s) of the employees who died as a result of COVID-19 exposure.  Employers are also required to report the business address and NAICS code of the worksite(s) where the employees worked. An employer that has an outbreak as defined within this section is required to continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

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New Cal/OSHA Process

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Under normal circumstances, employers are given 15 days to respond to a notice that the Division of Occupational Safety and Health (Cal/OSHA) intends on issuing a “serious” citation and, effectively, provide evidence that could prevent them from being issued a citation. AB 865 exempts Cal/OSHA from sending these notices of intent before issuing serious citations. 

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AB 685 also reiterates that Cal/OSHA may shut down a business that presents an “imminent hazard” related to the potential transmission COVID-19.

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Cal/OSHA has long had the authority to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.

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Resources for California Employers

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Find the full text of SB 1159 here.

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Find the full text of AB 685 here.

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Find the full text of Executive Order (EO) N-62-20 here.

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Find the California Department of Public Health’s definition of a COVID-19 Outbreak here.

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If you have questions regarding the application of SB 1159 and AB 685 to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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