2021 LEGISLATIVE SUMMARY, EMPLOYMENT LAW PART 1

February 12, 2021 by Catherine Holzhauser, Christopher Hammer, Kena Cador, Lorrie Bradley, Peder J.V. Thoreen, Sarah Kanbar, Stephanie Platenkamp, Tony Rice and Travis West

We are presenting our annual Legislative Summary of Employment Law in three parts this year. Part 1, below, addresses COVID-19 development; Part 2 will address protected-leave developments; and Part 3 will address independent contractor and other employment law developments.

COVID-19

Cal-OSHA COVID-19 Emergency Regulations – In response to the COVID-19 pandemic, Cal-OSHA issued emergency regulations to protect workers from exposure on the job. The regulations require all employers to have a COVID-19 prevention program. Under the prevention program, employers must evaluate COVID-19 related hazards in the workplace, implement procedures to control spread (including physical distancing and masks), and provide training for employees.

The regulations also require employers to notify affected employees and their Union, within one business day of a workplace exposure to COVID-19, offer testing to exposed employees, and exclude COVID-positive employees from the workplace. The regulations also outline the return-to-work process for employees who test positive for COVID-19. Employers must maintain the earnings, seniority, and benefits for employees who are excluded from work.

The emergency regulations are temporary and will remain in force until May 2021, unless extended. At least one employer group has sued to block enforcement of the regulations, but the court has yet to rule.

AB-685, COVID-19 Employer Notification Requirements – This bill requires public and private employers to notify employees and their Union representatives of potential exposure to COVID-19. An employer must provide a notice to employees, subcontractors, and Union representatives within one business day anytime it becomes aware that a COVID-positive person was in the workplace while potentially infectious. Employers are also required to notify the local public health department within 48 hours if it becomes aware of a COVID-19 workplace “outbreak” (3 or more confirmed cases of COVID-19 within a 2-week period among employees who live in different households.)

SB-1159, COVID-19 Workers’ Compensation Rebuttable Presumption – This bill creates a rebuttable presumption that injuries resulting from COVID arose in the course of employment and are compensable under the workers compensation system if (1) the employee was diagnosed with COVID within 14 days after performing work, (2) at least 4% of the workforce at the place of employment (or 4 employees for employers with fewer than 100 employees at the work location) have tested positive for COVID or if their specific place of employment is ordered closed by a local health department, and (3) their employer has five or more employees. The requirement that a certain portion of the workforce test positive does not apply to certain first responders and health care workers. The bill also makes a claim relating to a COVID injury compensable after 30 days or 45 days, rather than 90 days. Finally, the bill requires an employee to exhaust any supplemental paid sick leave specifically available in response to COVID-19 before receiving temporary disability benefits. However, if an employee was required to use generally available, accrued sick leave while awaiting determination of their application for Workers Compensation benefits, the employee must be reimbursed that sick leave if the application is granted. The changes made by the bill expire January 1, 2023.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.