On September 17, 2020, California Governor Newsom signed into law three bills that expand the rights of workers relating to the COVID-19 pandemic.
Job-Protected CFRA Family Leave Expanded to Workplaces With 5+ Employees
Perhaps most significant, Governor Newsom signed SB 1383, which expands job-protected family and medical leave under the California Family Rights Act (“CFRA”) to all California employers with five or more employees. The law takes effect January 1, 2021, and makes it an unlawful employment practice for any employer with five or more employees to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to 1) bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, as specified; or 2) address a military exigency. It also requires an employer who employs both parents of a child to grant leave to each employee. To qualify, employees must have worked at least 1,250 hours in the 12 months preceding the leave request. The employer must continue to provide group health benefits during the leave, and guarantee employment in the same or a comparable position upon termination of the leave.
Presently, companies with 50 or more employees are already required to provide 12 weeks of job-protected leave to care for a family member. And, as of a few years ago, companies with just 20 or more employees have been required to provide 12 weeks of job-protected leave for Parental Leave also known as baby bonding leave.
Under current law, employees pay into the state’s Paid Family Leave program (through a tax on their paycheck), which provides workers with partial wage replacement for up to eight weeks when they take time to bond for a newborn or to care for a sick child or family member. (State disability insurance, which employees also pay into, is available to workers unable to work due to their own disability.) However, there is no job protection under the Paid Family Leave program for workers of employers who do not qualify for family leave or Parental Leave. Therefore, some of these workers have been in the position of qualifying for an income replacement benefit, like Paid Family Leave, but not having time off to take it.
Now, with the passage of SB 1383, parents working for smaller employers will now be able to take leave to care for a new baby, an ill family member, their own health condition, or to address a military exigency – without risking their jobs. Also, they also receive partial wage replacement during their CFRA leave through the state’s Paid Family Leave program.
By requiring employers with only five or more employees to provide up to 12 weeks of CFRA leave, this new law is likely to materially change the landscape of job-protected family leave in California. The California Chamber of Commerce opposed the new law, including it on its annual “job killer” list, claiming it will hurt employment and the economy. However, other groups have lauded its passage, contending that it closes a loophole for many employees who can now securely take advantage of the Paid Family Leave benefit.
Workers’ Compensation “Disputable Presumption” That Illness or Death From COVID-19 Arose Out of The Course and Scope of Employment
Governor Newsom also signed SB 1159, creating a “disputable presumption” that an illness or death from COVID-19 has arisen out of the course and scope of employment. The new law also applies to employers with five or more employees, but is effective immediately.
Previously, in May, Governor Newsom signed an Executive Order that created a rebuttable presumption that “any COVID-19-related illness” arose out of the course and scope of employment for workers compensation purposes if an employee tested positive or was diagnosed with the virus within 14 days of the employee working in a workplace that was not the employee’s home. The Executive Order expired on July 5.
For the disputable presumption to apply, the employee must test positive for COVID-19 within14 days after a day the employee worked at the employer’s direction’s and the positive test must have occurred during an outbreak at the employee’s specific place of employment. “Outbreak” is defined to mean that 4% of employees at a specific place of employment test positive or a specific place of employment is ordered to close by certain officials.
An employer may dispute the presumption with evidence such as: (1) measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment, (2) the employee’s non-occupational risks of COVID-19 infection, (3) statements made by the employee, and (4) any other evidence normally used to dispute a work-related injury. If the date of injury is before July 6, 2020, the claim administrator has 30 days to deny the claim. If it occurs on or after July 6, 2020, the claim administrator has 45 days to deny the claim, or it is presumed compensable.
If the presumption applies, the employee is entitled to certain benefits, including full hospital, surgical, medical treatment, disability indemnity, and death benefits. However, death benefits are inapplicable if the deceased employee did not have dependents. Employees may be required to exhaust FFCRA paid sick leave before using temporary disability benefits. Date of eligibility for temporary disability benefits depends on the date of the positive test or diagnosis.
The new law has stringent reporting requirements, including, among other things, that employers must report COVID-related workers compensation claims quickly – within three business days of when it knew or reasonably should have known an employee tested positive. For positive tests between July 6 and September 17, 2020, there are separate reporting requirements allowing 30 days to report. Failure to properly report carries a penalty of $10,000.
Finally, Governor Newsom signed AB 685, also not effective until January 1, 2021, which creates Labor Code section 6409.6,governs COVID-19 exposure notice,reporting requirements, and Cal/OSHA enforcement. Current law lacks clarity as to an employer’s reporting requirements, including notice to their own workforce. Similar to SB 1159, this new law requires employers to act quickly in providing notice of potential COVID-19 exposure. Among other things, it requires COVID-19 positive tests or diagnoses to be reported immediately in the occupational setting, to members of the public, and to relevant state agencies.
Specifically, under Labor Code section 6409.6, subdivision (a), employers who receive “notice of potential exposure” to COVID-19 must take several actions within one business day, including providing written notice to potentially infected employees and their union representative, if any, of the potential exposure. They also must provide written notification to the employees and their union of COVID-19 related benefits, the employer’s COVID-19 safety plan, and anti-retaliation and anti-discrimination protections. Employers must keep records of these written notifications for a period of at least three years. Savvy employers can prepare now by identifying a point person or team to handle reporting, confirming employee contact methods, and creating a plan that is compliant with the statute so that the company can mobilize immediately upon potential exposure.
Section 6409.6, subdivision (b) requires employers to notify the local public health department within 48 hours of notice of a COVID-19 “outbreak” and then continue to give notice to the local public health department of any subsequent laboratory confirmed cases at the worksite. It also requires the California Department of Public Health to make certain information on outbreaks publicly available on its website.
Finally, the Division of Occupational Safety and Health (Cal/OSHA) creates a rebuttable presumption that a “serious violation” exists if the Division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. AB 685 relaxes the requirement that the Division must make a reasonable attempt to determine and consider certain facts before issuing a citation for a serious violation related to COVID-19.
In short, the new laws signed by Governor Newsom provide greater COVID-19 protections to workers affected by COVID-19 and require employers to take measures to significantly increase transparency of workplace exposures and immediately report positive tests and diagnoses. The consequences for not complying with these requirements can be significant. Attorneys at Duggan McHugh Law Corporation are here to help you navigate these new laws and draft and implement corresponding legally-compliant workplace policies.