California Enacts New COVID-19 Requirements For Employers

Vinson & Elkins LLP

Vinson & Elkins LLP

California Governor Gavin Newsom recently signed two new laws related to COVID-19, including a workers’ compensation law governing workplace “outbreaks” of COVID-19, and an exposure notice law that is triggered whenever employers discover that a potentially infectious individual has entered the workplace.

The new workers’ compensation law creates a presumption that an employee’s COVID-19 illness or death arises out of, and in the course of, employment if the employee tests positive within 14-days of a workplace “outbreak.” “Outbreak” is defined as (i) four or more employees testing positive in a 14-day period for employers with no more than 100 employees, and (ii) at least four percent of all employees testing positive in a 14-day period for employers with more than 100 employees. If the presumption is met, the employer must report all positive tests included in the outbreak within three business days. The requirement goes into effect immediately, although employers have until October 19, 2020, to report any positive tests occurring between July 6, 2020 and September 16, 2020.

The exposure notice law, which will go into effect on January 1, 2021, imposes certain notice requirements any time that an employer learns that someone who has tested positive, was diagnosed with COVID-19, or is subjected to an isolation order was in the workplace while still potentially infectious. After making this discovery, the employer has one day to notify all individuals who were at the worksite with the qualifying individual—including employees, contractors, or customers—that they may have been exposed.

This notice must provide all employees with information regarding COVID-19-related benefits to which the employees may be entitled under applicable federal, state, or local laws, including, for example, workers’ compensation benefits, leave entitlements, and antiretaliation and antidiscrimination protections for the employees. This notice must also provide information on the employer’s intended disinfection and safety plan.

Finally, this new law authorizes the California Division of Occupational Safety and Health (“Cal/OSHA”) to award civil penalties of up to $124,709 per violation where a violation is found to be willful or repeated. Cal/OSHA will also have the authority to close any business if it finds that the employment location exposes workers to the risk of infection of COVID-19, so as to constitute an “imminent hazard” to employees.

These new laws are a reminder that, in addition to keeping an eye on federal guidance, employers will need to consider any state-specific notice and other requirements that may be enacted in response to the COVID-19 outbreak by the state and/or local jurisdictions in which they operate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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