Last, but far from least, employers need to understand and comply with several COVID-19 laws and regulations.
Workers’ Compensation: SB 1159 codified an earlier executive order creating a rebuttable presumption that an employee’s Covid-19 infection is a workplace injury. The new law, applying to employers of 5 or more employees, creates a disputable presumption that an employee contracted COVID-19 at the workplace if there is a workplace “outbreak.” In very general terms, an outbreak is defined as follows:
- Employers with 5 – 100 employees have an “outbreak” if 4 or more employees test positive within 14 calendar days.
- Employers with more than 100 employees have an “outbreak” if 4% of their employees test positive within 14 calendar days.
Importantly, employers must report to their workers’ compensation carrier within three business days when any employee tests positive for COVID-19.
Sick Leave: In 2020, the federal Families First Coronavirus Response Act (FFCRA) provided two weeks of sick leave for COVID-19 related purposes to employees who worked for employers with less than 500 employees. California enacted a similar sick leave law covering larger employers, which remained effective until the expiration of the FFCRA.
The FFCRA mandatory sick leave was not extended, and thus the mandatory sick leave under both the federal and state laws expired at the end of last year. However, Congress is allowing employers to continue to provide the federal sick leave on a voluntary basis to employees who had not used the entire 80 hours in 2020, and continue to claim the related payroll tax credit, through March 31, 2021.
Notice and Recordkeeping: AB 685 requires employers who learn of a potential COVID-19 exposure in the workplace to take the following steps within one business day:
- Provide a notice to all employees and employees of contractors who were at the worksite during a defined infectious period.
- Exclude employees from the workplace if they were in “close contact” with the infected employee, as defined.
- Provide benefits information to all employees who are excluded from the workplace, as defined, including sick leave or other leave and wage replacement benefits. (Note: An emergency Cal/OSHA regulation requires that an employer continue the wages and benefits of an employee excluded from the worksite due to COVID-19 exposure if the employee is otherwise able to work.)
- Notify all employees of the disinfecting and safety plan the employer is implementing.
All such notices must be retained by the employer for three years.
Covid-19 Prevention Plan: The Cal/OSHA Emergency Regulation also requires employers to adopt a detailed COVID-19 Prevention Plan, which can be included in the employer’s Injury and Illness Prevention Program (IIPP) or be a separate document.
The 21-page CalOSHA Emergency Regulation should be reviewed by all employers. Cal/OSHA has an “FAQ” on its website that provides additional information on the regulation.
There are at least two lawsuits pending that seek to enjoin enforcement of portions of this emergency regulation. Murphy Austin is monitoring those actions and will send an alert when there are updates.
For the present, however, employers should draft and implement the required Prevention Plan.
Related practice team: Labor and Employment
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