In September 2020, Governor Newsom signed two COVID-19-related bills effecting workers’ compensation claims and an employer’s duty to report virus exposure. Both SB 1159 and AB 685 remain in effect until January 1, 2023.

SB 1159 - Workers’ Compensation Eligibility

Prior to approving Senate Bill (“SB”) 1159, Governor Newsom signed Executive Order N-62-20, which created a rebuttable presumption that certain employees who tested positive for COVID-19 from March 19, 2020 to July 5, 2020 contracted the virus at work and were eligible for workers’ compensation benefits.

Eligibility for Certain Essential Employees

SB 1159, which took effect immediately, further extended this eligibility by defining “injury” to include illness or death resulting from COVID-19 from July 6, 2020 to January 1, 2023 for:

• Active firefighters;
• Peace officers;
• Fire and rescue services coordinators;
• Health facility workers;
• Registered nurses;
• Emergency medical technicians;
• Workers who provide direct patient care; and,
• In-home supportive services workers.[1]

SB 1159 also creates a rebuttable presumption that the “injury” arose out of and in the course of the employment. This presumption applies to the above employees if they tested positive for or were diagnosed with COVID-19 within fourteen (14) days after a work day at their place of employment.

Employers can refute, or rebut, this presumption by producing evidence of measures in place to reduce the spread of COVID-19 in the place of employment, and evidence of an employee’s nonoccupational risks of COVID-19 infection.

Eligibility for Other Employees

Employees who are not in the any of the above categories can still benefit from SB 1159.  For employers with five (5) or more employees, SB 1159 creates a presumption of injury for all employees who test positive during an outbreak at the place of employment.

An “outbreak” exists if any of the following occur within fourteen (14) days at the place of employment:

• The employer has 100 employees or less at a specific place of employment and 4 employees test positive for COVID-19;
• The employer has over 100 employees at a specific place of employment and 4% of the employees test positive for COVID-19; or,
• A specific place of employment is ordered to close by a local public health department, the State of California Department of Public Health, The Division of Occupational Safety and Health (Cal-OSHA), or a school superintendent due to a risk of COVID-19 infection.

For purposes of this bill, a “specified place of employment” is defined to mean a building, store, facility, or agricultural field where an employee performs work at the employer’s direction. A specified place of employment does not include the employee’s home or residence, unless the employee provides in-home care services to another individual at the employee’s home or residence.

Claims relating to a COVID-19 illness are now presumptively compensable under SB 1159 after forty-five (45) days if the date of injury is on or after July 6, 2020. If the presumption applies, employees can be awarded full hospital, surgical, medical treatment, disability indemnity, and death benefits.

AB 685 – Employer’s Duty to Report COVID-19 Exposure

Assembly Bill (“AB”) 685 authorizes Cal-OSHA to prohibit an employer’s operation or entry into the place of employment if, in Cal-OSHA’s opinion, workers have been exposed to COVID-19 so as to constitute an imminent hazard.[2]

Employer Notice Requirements

Cal-OSHA is required to provide notice to the employer, which in turn is to be placed in a visible area at the place of employment. The prohibition of operation must be limited to the immediate area in which the imminent hazard exists, and the prohibition must be issued in a manner that does not materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.

This bill also requires a public or private employer or employer representative that receives notice of a potential COVID-19 exposure to notify its employees within 1 business day of the potential exposure. The employer must provide this notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual within the infectious period.

“Worksite” means the building, store, facility, agricultural field, or other location where an employee worked during the infectious period. It does not apply to buildings, floors, or other employer locations that a qualified individual did not enter.

A “qualifying individual” means any person who has any of the following:

• A laboratory-confirmed case of COVID-19;
• A positive COVID-19 diagnosis from a licensed health care provider;
• A COVID-19-related order to isolate provided by a public health official; and/or,
• Died due to COVID-19.

The employer-provided notice must include information regarding COVID-19-related benefits and options as well as the employer’s disinfection and safety plan that the employer will implement per the guidelines of the Center for Disease Control (CDC).

Employers must also maintain records of notifications for at least three (3) years. Violation of these notification requirements will subject employers to a certain civil penalty.

Reporting Requirements

If an employer receives notice that the number of its cases constitutes a COVID-19 outbreak, the employer must report certain information to the local public health agency within forty-eight (48) hours. The local health department defines “outbreak” as three (3) or more laboratory-confirmed cases of COVID-19 within a 2-week period among employees who live in different households.

Employers with an outbreak must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19. Health facilities are exempt from this reporting requirement.

Potential Cal-OSHA Citations

Under this bill, Cal-OSHA creates a rebuttable presumption that a serious violation exists in a place of employment if there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.

For purposes of AB 685, “serious physical harm” means any injury or illness occurring in the place of employment or in connection with employment that results in:

• Inpatient hospitalization for purposes other than medical observation;
• The loss of any member of the body;
• Any serious degree of permanent disfigurement; or,
• Impairment causing a body part or organ to become permanently and significantly reduced in efficiency on or off the job, including burns, crushing injuries, respiratory illness, or broken bones.

Fifteen (15) days before issuing a citation, Cal-OSHA must make a reasonable attempt to determine certain facts and must send a standardized form to the employer containing descriptions of the alleged violation and a solicitation of certain information.

AB 685 became effective, in the State of California, on January 1, 2021.