COVID-19 cases are on the rise, and employers are faced with increasing claims of employee exposure along with positive cases. Here are several highlights to assist you in responding to COVID-19 employment issues this month:
Recommendations from the federal CDC (see here) may differ from state mandates or recommendations (see here), and both may differ from city and county ordinances. For example, Los Angeles County (see here) has more rigid requirements than the State of California. The most restrictive requirement will apply to your business. Review all relevant sources of authority for your city, county and state for application to your particular situation.
The Governor's December 3, 2020, regional stay-at-home orders (see here) are based on a regional assessment of hospital ICU bed capacity. The Southern California region immediately dipped below the 15% availability standard when the orders were issued, triggering a minimum three-week stay-at-home order. Some counties have complained that they should not be tied to Los Angeles County, but the state has not budged on the scope of the Southern California region. Watch state and local orders for updates on your area's stay-at-home status.
The November 30, 2020, 21-page Cal/OSHA Emergency Temporary Standards for COVID-19 Prevention (“ETS”) (see here) cover all worksites with one employee or more, except for remote/home worksites. Legal challenges have been mounted to these burdensome regulations, particularly with regard to the compensation requirement which may be unconstitutional and beyond the scope of Cal/OSHA's jurisdiction. Be on the alert for any reports of an injunction prohibiting some or all of the Cal/OSHA ETS.
The 2020 FFCRA benefits are set to expire as of December 31, 2020; it remains to be seen whether the stimulus package now awaiting Congressional vote will provide for new or different benefits in 2021. It appears that the pending stimulus package will provide for extended PPP benefits under the CARES Act, among other relief for businesses and individuals alike. Stay tuned for future legal updates on this pending COVID-19 relief.
Under SB 1159, creating Labor Code sections 77.8, 3212.87, and 3212.88, employers are required to report all confirmed positive serum tests to their workers’ compensation carrier within three days. The carrier will have a form for this. The worker must have been in the non-home worksite within 14 days prior to the positive test. A "worksite" is the particular building or other site-specific location were the employee was present, not an entire facility with multiple separate "worksites" that the worker never entered. There is no need to provide the DWC-1 First Report of Injury unless the employee claims or it is clear that the exposure occurred in the workplace.
An “outbreak” occurs for the purposes of SB 1159 if the employer with less than 100 employees has four such positive tests reported to its carrier within two weeks, or the company has more than 100 employees and at least four percent (4%) of the worksite tests positive. In the event of an outbreak, the company will be required to alert state and local public health officials, typically by phone.
Under the new Cal/OSHA ETS referenced above, the employer has one business day to alert any employees who were exposed to a COVID-19-positive worker. "Exposure" means a cumulative (not consecutive!) 15 minutes of contact within six feet, masked or unmasked, during a 24-hour period. This is the same standard generally recommended by federal and state agencies. Speak with the positive employee and use security cameras or other means to determine possible exposures.
AB 685, creating Labor Code sections 6325 and 6432 and effective January 1, 2021, requires the employer to provide notice of a positive COVID-19 case to all employees and the employers of any subcontracted employees who were “on the premises” of the same worksite as the COVID-19 individual. This is a more expansive standard than the “direct exposure” standards under other laws. There must be a confirmed positive test. Workers who "think" they may have COVID-19 or have been exposed do not create an obligation to report.
The AB 685 notice to workers, which must be issued within 24 hours of the exposure, must contain four items:
LightGabler has prepared a sample AB 685 notice form for our firm's clients; contact us to receive a copy of this notice.
There are conflicting recommendations regarding exposure-related quarantine periods among the state, federal and local regulations. Although the overlapping laws can create confusion, remember that employers must follow the most restrictive standards to ensure compliance with all applicable laws.
Under the Cal/OSHA ETS, an employee positive for COVID-19 may not return to work until (a) symptoms have improved; (b) the employee has been fever-free for 24 hours, without the use of fever-reducing medications, and (c) 10 days have passed since the onset of symptoms (or positive test if there have been no symptoms). An employee who has been exposed to COVID-19 must quarantine away from work for a period of 14 days. These timelines apply regardless of the employee’s testing status. Note that under Section 11 of the Cal/OSHA ETS, and contrary to federal regulations, the employer cannot force the employee to obtain a negative test as a condition of returning to work.
The federal CDC now has opined that 7-10 days of quarantine may be sufficient (depending on the type of business), but comments from the CDC indicate that reduction in the 14-day quarantine may have been the result of political pressure. The Governor’s most recent Executive Order (EO-N-84-20) on December 14, 2020, similarly reduced the quarantine period as it relates to anyone with a close contact: “All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing….” (See here.) However, despite the Governor’s indication that the Cal/OSHA standards would be modified to reflect this change, the 14-day exposure quarantine period remains in place in the ETS and continues to be the applicable quarantine standard at this time.
Employers should carefully review the Cal/OSHA ETS and all state and local regulations on documentation, training and worksite safety. There are specific requirements for posting of notices, employee training, creation of COVID-19 safety plans (including the Cal/OSHA-mandated Coronavirus Prevention Plan, a sample of which can be found on the department's FAQs page here) and required worksite personal protective equipment (PPE). See LightGabler's legal update on the Cal/OSHA ETS here. Public health officials will inspect both the physical site and the employer’s documentation, and employers risk a shutdown if they don't have both well under control.
As indicated above, these are only some of the most significant highlights of the multiple laws and regulations in effect to deal with the COVID-19 pandemic. Consult with your employment law counsel to address specific workplace situations and to ensure compliance with all applicable standards.
For questions regarding COVID-19 regulations or other employment law issues, contact the employment attorneys at LightGabler.