COVID-19 Workplace Outbreaks in California: Now Covered by Workers’ Compensation and Subject to Detailed Employee and Health Department Notification Obligations

Written by Jeremy Mittman and Tiana Bey

On September 17, 2020, Governor Gavin Newsom signed two laws designed to protect California workers exposed or potentially exposed to COVID-19 at the workplace: Senate Bill (“SB”) 1159 and Assembly Bill (“AB”) 685.

Workers’ Compensation for COVID-19

Under SB 1159, California established a new rebuttable presumption that requires employers to treat a COVID-19 related illness or death of an employee as a workplace injury subject to workers’ compensation benefits.  The presumption applies if (1) an employee is a “qualified” worker (e.g., certain emergency workers, essential health workers, etc.) that tested positive for the virus within 14 days of their last day of work at the employer’s workplace or (2) any type of  employee has tested positive for the virus after exposure to a workplace COVID-19 “outbreak” (defined below).  The law requires detailed reporting of covered positive employees to the employer’s workers’ compensation administrator; a penalty of $10,000 applies to employers who fail to do so. 

Communicating COVID-19 Outbreaks to Employees and the Local Health Department

Under AB 685, California employers are required to disclose potential exposure to COVID-19  to their employees and COVID-19 “outbreaks” to local public health officials for further disclosure to the public. An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

  • If the employer has between five and 100 employees at a specific place of employment and 4 employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment and 4% of those employees who reported to the specific place of employment test positive for COVID-19.
  • If, due to a risk of infection with COVID-19, a specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent.

Reporting to Employees.  Within one business day of having actual or constructive knowledge of known COVID-19 cases, employers are required to provide written notice to (1) all employees (and employers of subcontracted employees) who were at the worksite within the infectious period who may have been exposed to COVID-19 and (2) any employee representatives, including unions and/or attorneys who may represent employees, of the following:

  • The potential exposure to COVID-19 ;
    • The benefits available to its employees in connection with the potential exposure
    • The company’s anti-discrimination, anti-harassment, and anti-retaliation policies concerning those impacted by the potential exposure; and
    • The company’s CDC-guided disinfection and safety plans to eliminate any further exposure to the virus.

Reporting to Local Health Department.  Within 48 hours of learning of a COVID-19 outbreak, employers are required to report the following to the local health department within the employer’s jurisdiction:

  • That there was a COVID-19 outbreak;
  • The names, numbers, occupation, and worksite of employees who have confirmed cases of the virus, who have been ordered to isolate due concerns about exposure to the virus, or who died from a COVID-19-related illness;  
  • The business address and North American Industry Classification System (NAICS) code of the worksite where the COVID-19-positive employee(s) worked; and  
  • On a continuing bases, provide notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

Records of notifications to employees and to health department must be maintained for three years.

SB 1159 became effective on September 17, 2020.  AB 685 will become effective on January 1, 2021.  Both laws will expire on January 1, 2023. 

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