CA employers face yet more requirements on COVID and leave

A cornucopia of new laws, effective now or soon.

The Fall season brings brightly colored leaves, cooler weather, pumpkin spice
whatever, and . . . new employment laws in California.Gov. Gavin Newsom (D) has continued that trend by signing three more bills that affect California employers and their employees.

The most recent laws, which were enacted last week and have different effective dates, drastically affect COVID reporting obligations, workers’ compensation exposure, and leave under the California Family Rights Act.

Notification of potential exposure to COVID and enforcement (AB 685)

Once an employee tells you about a potential exposure to COVID-19, how long does it take you to notify your other employees? Effective January 1, newly signed AB 685 adds section 6409.6 of the California Labor Code, which will require employers to take the following actions within one business day of receiving notice of a potential exposure to COVID-19:

  • Written notice to employees. Employers must provide a written notice to all employees, as well as the employers of subcontracted employees, who were on the premises at the same work site as the affected individual during the period that the affected individual was "infectious," as defined by the State Department of Public Health. The notice must be in English and the language understood by the majority of the employees.
  • Written notice to employees’ exclusive representative. If the employees have an exclusive representative (such as a union), written notice must also be provided to the representative.
  • Notice of COVID-related benefits and anti-discrimination and retaliation. Employers also must provide notice to employees and, if applicable, their exclusive representative with information regarding COVID-related benefits to which the employee may be entitled under applicable federal, state, or local laws. This includes, but is not limited to, workers’ compensation. Employers must also provide notice of the options to exposed employees, such as COVID-19-related leave, sick leave, negotiated leave, and state-mandated leave. The notice must also remind workers of their legal protections against discrimination and retaliation. 
  • Notice of employer disinfection and safety plan. Employers must notify all employees, their exclusive representative (if any), and the employers of subcontracted employees of the employer's disinfection and safety plan per the guidelines of the federal Centers for Disease Control and Prevention.
  • Just in case it was not clear: All of the above information must be provided within one business day of the date that the employee notifies the employer of the potential exposure.

In addition, employers (other than a “health facility”) will have 48 hours to notify local public health officials of the potential exposure, if the number of cases the employer has meets the definition of an “outbreak.”

Finally, AB 685 authorizes the California Division of Occupational Safety and Health to shut down a business (or immediate area thereof) if it believes the business constitutes an “imminent hazard” of employee exposure to risk of infection. This provision will become effective January 1, 2023.

Presumption that COVID-related injury or illness was work-related (SB 1159)

Effective immediately under SB 1159, a presumption exists, under certain circumstances, that an employee’s illness or death from COVID-19 is work-related and is compensable under workers’ compensation. The good news is that employers can rebut this presumption by identifying measures they undertook to reduce the transmission of COVID-19 in the workplace, as well as the employee’s non-occupational risks of COVID-19, among other things. The rebuttable presumption will remain in place until January 1, 2023.

The new law also contains special provisions for first responders and those in the health care field. For employees in health care facilities who do not provide direct patient care or perform custodial duties, there is no presumption if the employer can show that the employee did not come into contact with a patient who tested positive in the previous 14 days. Proving that something did not happen, however, is likely to be difficult for most employers. 

An employer who has an employee who has tested positive for COVID-19 on or after July 6, 2020, has 30 business days after the effective date of SB 1159 (September 17) to notify its claims administrator.  

Expanding access to family leave (SB 1383)

Finally (for now), the new year will bring new changes to the California Family Rights Act. Originally, the CFRA was intended to model the federal Family and Medical Leave Act by applying only to workplaces where there were at least 50 employees within a 75-mile radius of the work site. Those days will soon be gone. Amendments that significantly expand the scope of the CFRA will go into effect January 1, 2021. Highlights of these changes are as follows:

  • More employers covered. Under SB 1383, employers with five or more employees will need to provide 12 weeks of unpaid, job-protected leave to certain employees to care for the employees' own serious health conditions, to bond with new children, to care for family members with serious health conditions, or to address qualifying military exigencies.
  • More family members included. Presently, a covered employee is entitled to CFRA leave if the employee is needed to care for a family member (defined as a parent, child, or spouse or domestic partner) with a serious health condition. Come 2021, that list will include a grandparent, grandchild, or sibling with a serious health condition. 
  • "Parent-coworker penalty" eliminated. Under the CFRA, an employer can limit the amount of leave that parents can take when they work at the same work site to a combined total of 12 weeks of leave to care for their child. The new amendment eliminates that limitation, which means the parents can each take the full 12 weeks of leave under the CFRA.
  • "Qualifying exigency” added as reason for leave. Unlike the FMLA, the current version of the CFRA does not provide for job-protected leave for a “qualifying exigency” related to military service. The changes will bring the CFRA into approximate conformity with the FMLA, in that employers will be required to provide up to 12 weeks of unpaid, job-protected leave for a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, child, or parent in the United States Armed Forces. Unlike the FMLA, this leave is also available under the CFRA for the "qualifying exigency" of the employee's domestic partner. 
  • "Key employee” exception eliminated. The CFRA currently allows an employer to deny reinstatement to a salaried employee who is among the highest paid 10 percent of its employees under certain circumstances. This is called the “key employee” exception. The new amendment deletes this provision.

California employment laws keep employers up at night, wondering what is coming next. There always seems to be something. From new statutes to new regulations to new court decisions, we will keep you up to date on developments in the areas of wage and hour, discrimination, leaves of absence, retaliation, class actions, PAGA, and arbitration. We’ll also provide you with practical information on how to update your policies and employment practices. Please subscribe to keep current.


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