With each new year comes new responsibilities for employers. While the California legislature was less busy due to a brief COVID shutdown, there are still some key laws that every employer must know for 2021.
COVID-19 Paid Leave
In California, there are five laws regarding COVID-related leave. The first two have been in place for many years — California Family Rights Act (CFRA) and Labor Code § 246 (Sick Leave). In April 2020, the federal government passed the Families First Coronavirus Response Act (FFCRA) and Emergency Paid Sick Leave and Emergency Paid Family & Medical Leave, which expanded the Family Medical Leave Act (FMLA). The laws that were passed by the federal government applied only to employers with fewer than 500 employees and there was an exemption for small employers who could prove that expanded leave would jeopardize the business. However, in September 2020, the California legislature passed the COVID-19 Supplemental Paid Sick Leave (“CSPSL”) to make the federal laws applicable to all employers. The CSPSL also created new laws that will be addressed herein.
Determining which of these five laws applies depends on the situation of the employee. The amount of leave and compensation the employee is entitled to receive depends on the reason for the leave (whether the employee is sick, quarantined or caring for another person) and employee’s pay status (salary or hourly). Useful references can be found here:
We recommend that the human resources department become familiar with the new laws and make determinations as cases arise.
The new CSPSL was enacted via Assembly Bill (AB) 1867 and will be codified as Labor Code § 248.1. One of the new requirements under CSPSL is that employers must now provide employees with written notice concerning the amount of CSPSL available on either an itemized wage statement or in a separate writing provided on designated pay dates. This requirement is effective for the “next full pay period following the date of enactment” of AB 1867, which was September 9, 2020. Any employers who utilize a third-party payroll provider should communicate with their payroll provider immediately if they have not done so already to ensure the company’s wage statements are compliant with this requirement. Additionally, section 248.1 includes the same recordkeeping requirement for paid sick leave, and therefore requires employers to retain records for at least three years documenting hours worked, the amount of CSPSL provided, and any CSPSL used by an employee.
Employer Reporting Requirements
Governor Newsom also signed Assembly Bill 685, which takes effect Jan. 1, 2021. Under Assembly Bill 685, if an employer is aware of a COVID-19 outbreak occurring at the worksite, the employer is required to report the confirmed cases within 48 hours to their local public health agency. AB 685 left the definition of “outbreak” up to the California Department of Public Health, which has defined an outbreak in non-healthcare or non-residential congregate setting workplaces as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period. Under AB 685, a COVID-19 case is someone who: 1) has a positive viral test for COVID-19, 2) is diagnosed with COVID-19 by a licensed health care provider, 3) is ordered to isolate for COVID-19 by a public health official, or 4) dies due to COVID-19, as determined by a public health department. The employer must continue to provide notice of subsequent cases to the agency.
Assembly Bill 685 also requires employers that receive notice of potential exposure to COVID-19 to “provide specified notifications to its employees within one business day of the notice of potential exposure.”
An exposed individual is one who either (1) received a laboratory-confirmed positive test for COVID-19, (2) received a diagnosis of COVID-19 from a licensed health care provider or (3) received an official order to self-isolate with potential COVID-19 symptoms. Employers must provide the notification in writing. The writing can be through email or text message, to all employees who were at the same worksite as the exposed individual during the COVID-19 infectious period.
The “infectious period,” begins 48 hours before the positive COVID-19 test was administered and ends when the COVID-19-positive individual is released from quarantine or within 10 days.
COVID-19 Prevention Program
Assembly Bill 685 authorize the California Department of Public Health and Cal/OSHA to develop regulations for establishing workplace prevention programs. These guidelines were put in place on November 30, 2020. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:
- System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
- Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
- Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
- Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
- Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
- Face coverings – providing face coverings and ensuring they are worn.
- Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
- Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
- Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
- Criteria for employees to return to work after recovering from COVID-19.
- Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
- Specific requirements for infection prevention in employer-provided housing and transportation to and from work.
The full text of the regulations can be found here:
Return to Work Criteria
The new Cal-OSHA requirements also established a standard for returning to work, so employers are no longer required to guess at the appropriate length of time or procedure.
(11) Return to work criteria.
(A) COVID-19 cases with COVID-19 symptoms shall not return to work until:
- At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
- COVID-19 symptoms have improved; and
- At least 10 days have passed since COVID-19 symptoms first appeared.
(B) COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
(C) A negative COVID-19 test shall not be required for an employee to return to work.
(D) If an order to isolate or quarantine an employee is issued by a local or state health official, the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
(E) If there are no violations of local or state health officer orders for isolation or quarantine, the Division may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.
SB 275 (Healthcare Employers/PPE) requires “health care employers, including clinics, health facilities, and home health agencies, to maintain an inventory of new, unexpired PPE for use in the event of a declared state of emergency and would require the inventory to be at least sufficient for 45 days of surge consumption, as determined by regulation, as specified.” The stockpiles must be established by January 1, 2023. Providers are subject to fines up to $25,000 for each violation.
Workers Compensation Coverage
SB 1159 (COVID Workers’ Comp Coverage) extends the presumption of workers’ compensation coverage for COVID illnesses contracted by certain employees who work outside the home. This new law also provides new COVID reporting obligations for employers.
Within three business days of notification of a positive COVID-19 test, an employer must report the following to its workers’ compensation claims administrator in writing, via electronic mail or facsimile:
(1) An employee has tested positive (no personally identifiable information should be transmitted unless the employee has filed a workers’ compensation claim);
(2) The date the employee tested positive;
(3) The address of the employee’s place of employment during the 14 days before the positive test; and
(4) The highest number of employees who reported to work at the employee’s place of employment in the 45 days preceding the last day the employee worked at the place of employment.
SB 1159 was effective immediately as urgency legislation.
Pay Data Reporting
While this new law is not COVID-related, employers must be aware of new pay data reporting requirements. SB 973 requires private employers with 100 or more employees to submit a pay data report to California’s Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter. The report must include information on the numbers of employees, by race, ethnicity and gender, who are employed in specified job categories. The report also must provide pay band data for these workers. The purpose of the report is to assist the DFEH in identifying discriminatory pay practices.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.