Legislative Updates: Workers’ Compensation Presumption and COVID-19 Required Notices to Employees

The Governor recently signed legislation to expand worker rights and protections relative to COVID-19.  AB 685 will require employers to notify all employees of  a potential exposure to COVID at the workplace.  SB 1159 extends and modifies an Executive Order signed by Governor Newsom earlier this year that creates an automatic presumption that employees who test positive for COVID contracted the virus at work and are therefore eligible or workers’ compensation payment.

The bills are summarized below:

AB 685 expands employee COVID-19 protections by requiring employers to provide notice of a “potential exposure” to COVID-19 within one business day. This law will become effective January 1, 2021. The notice should go to all employees and employers of subcontracted employees (and employee-representatives) who were at a worksite within the infectious period who may have been exposed to the virus. The notice must contain information regarding COVID-19 benefits that the employee may receive, including workers’ compensation benefits, leave, and the Company’s anti-discrimination, anti-harassment, and anti-retaliation policies, and also provide disinfection protocols and safety plan to eliminate further exposure per the CDC guidelines.

Employers should develop a plan now on how it will comply with this law as exposures happen and the time requirements are very short.

SB 1159 expands on a prior Executive Order regarding COVID-19 in the workers’ compensation context, creating a “disputable presumption” that certain workers who get COVID-19 were exposed at work. An employer can dispute the presumption by showing the measures it had in place to reduce transmission of COVID-19, statements made by the employee, and other ways the employee could have been exposed to the virus outside work. The presumption exists for employees who get sick from the virus on or after July 6, 2020 through January 1, 2023. The Bill also puts tight timelines in place for disputing the workplace exposure presumption.

For agriculture employers, the presumption is triggered when there is a COVID outbreak at a single worksite.  An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

  • If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
  • 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.
  • A specific place of employment is ordered to close due to a risk of infection with COVID-19.

This Bill highlights again the importance of having a COVID-19 mitigation plan in place.

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