Law360 (September 21, 2020, 8:51 PM EDT) --
California Gov. Gavin Newsom recently signed off on a trio of laws that provide
workers with more benefits and protections amid the coronavirus pandemic while
creating new requirements for their employers. Here, Law360 looks at three
takeaways.
The bills — S.B. 1383, S.B. 1159 and A.B. 685 — got Newsom's blessing Thursday,
adding to other worker-focused legislation he signed recently, including one
providing paid sick leave. While S.B. 1383 and
A.B. 685 won't take effect until Jan. 1, S.B. 1159 took effect immediately.
S.B. 1159 and A.B. 685 both seem geared toward preventing outbreaks of COVID-19
in the workplace and allowing for more agency enforcement when they do occur,
said Littler Mendelson PC's Alka Ramchandani-Raj.
"Basically, they're putting the employer on notice that they have to act
quickly once they find out someone has COVID," Ramchandani-Raj said.
"One, to protect the employee and make sure they have coverage, and
secondly, to protect other employees from exposure issues."
A "Leg Up" for Employees on Workers' Comp
S.B. 1159, introduced by Sen. Jerry Hill, D-San Mateo, creates a presumption
that certain covered workers' illnesses or deaths from COVID-19 are
work-related and entitles them to workers' compensation, putting the onus on
their employers to rebut the presumption.
Newsom previously established a rebuttable presumption in a May executive order
that expired in July. S.B. 1159 is retroactive to July and will be in effect
until January 2023.
The law gives covered employees "a leg up" on their workers' comp
claims, according to Boxer & Gerson LLP's Julius Young. In
addition to first responders and health care workers, the law also applies to
those who test positive during a workplace outbreak, as defined by the bill.
However, Young pointed out that workers not covered by the law can still file
coronavirus-related workers' compensation claims, though they aren't entitled
to the presumptions under the law.
"I think that can kind of get lost in this discussion, and some people may
be thinking that if you don't come within an outbreak or you're not a specified
job title you can't pursue a claim," Young said. "That's not true.
Benjamin M. Ebbink, a member of Fisher
Phillips' COVID-19 task force, said the law is "yet another
reason and reminder for employers to do what they can to follow guidelines and
prevent transmission in the workplace."
According to the bill, employers can try to rebut a presumption by pointing to
measures taken to reduce the potential transmission or showing a worker's
nonoccupational risks of infection. But Ebbink said that the guidance was
"a little fuzzy" and not as prescriptive as that of an earlier
Illinois law that also created a rebuttable presumption for certain workers'
coronavirus-related workers' comp claims.
"Even in a state like Illinois that has a very clear, you do X, Y and Z,
and you can rebut the presumption, I think there's going to be a lot of
litigation over whether the employer actually satisfied those criteria,"
Ebbink said.
The number of workers' compensation claims is also likely to increase with S.B.
1159, as it has in the wake of COVID-19, according
to Ramchandani-Raj.
"Employers should be ready to be able to file the paperwork that they need
to provide that protection to the employee, and they should be really quick at
gathering evidence to dispute the presumption as needed," Ramchandani-Raj
said.
A "Sword" for Cal/OSHA Enforcement
Charles Rondeau, the head of Dordulian Law Group's workers' compensation
division, said that if S.B. 1159 is in some ways like a shield for workers,
A.B. 685 is like a sword, as employers can face "serious consequences if
they don't deal with the COVID-19 situation in a reasonable fashion."
A.B. 685, introduced by Assemblymember Eloise Gómez Reyes, D-San Bernardino,
requires employers to notify workers within one business day of receiving
notice of a potential exposure to COVID-19. Employers must also notify local
public health officials within 48 hours if the number of cases they have
qualifies as an outbreak.
Ramchandani-Raj said the law broadens employers' notification requirements
beyond what the Centers for Disease Control and Prevention and
California's Division of Occupational Safety and Health has indicated is
appropriate by including notice to third parties, such as subcontractors and
unions.
"I think the biggest mechanism that they're looking at with A.B. 685 is
tracking," she said. "They're trying to figure out a device to track
the different COVID cases that are happening in the workplace."
Josh Henderson, a partner at Norton
Rose Fulbright, said the different notice obligations to different
stakeholders could potentially raise privacy issues. For instance, the law
directs employers to give unions the information provided on a particular
Cal/OSHA form, he said. However, following those forms would require disclosing
the name of the employee with a positive COVID-19 test, according to Henderson.
"I think the privacy considerations are something that didn't get enough
attention and haven't really been resolved in a way that can give employers any
sense of comfort in terms of what steps they have to take to comply with the
statute," Henderson said.
The law also gives the California Division of Occupational Safety and Health
explicit authority to shut down businesses it believes are exposing their
workers to risk of infection to the point that they're an imminent hazard to
employees.
"Essentially, employers have to be careful to make sure that they have
their policy in place, that they are enforcing the policies that they have to
ensure employees are doing social distancing and they are wearing face
coverings," Ramchandani-Raj said. "Because if Cal/OSHA comes in, they
do run that risk of having their operations shut down."
More Family Members Qualify for Leave
Newsom also signed S.B. 1383, a law introduced by Sen. Hannah-Beth Jackson,
D-Santa Barbara, which requires companies with as few as five employees to hold
people's jobs for 12 weeks while they take family or medical leave.
Young said that the law was a "big plus for workers," noting that as
an attorney who handles injured workers' claims, he often sees people who need
home care from their family.
Prior to S.B. 1383, Golden State workers at companies with 20 or more employees
saw their jobs protected by state law if they took parental leave, and workers
at companies with more than 50 employees saw their jobs protected by federal
law if they took leave to deal with a family illness or personal illness.
Ebbink pointed out that while a lot of the focus has been on the protections
expanded to workers at smaller businesses, the law introduced changes for large
businesses, too, since it broadens the definition of family member to include
siblings, grandparents, grandchildren and adult children.
"That's going to apply to employers of all sizes, so even employers that
were already complying with the law have some things they need to pay attention
to," Ebbink said. "It also sets up a weird stacking issue, because
now the California law and the federal law are out of sync in terms of the
family members."
Rondeau said the law seemed to him to go "hand-in-hand" with the
other legislation.
"It makes sense," Rondeau said. "The whole idea here is we want
to reduce community transmission, and obviously one way to reduce community
transmission is to create as much incentive for employers and employees
together to have people, if they test positive or even believe they might have
been exposed, to self-isolate and quarantine."
--Additional reporting by Emily Brill. Editing
by Breda Lund.
To be a Medicare Agent's source of information on topics affecting the agent and their business, and most importantly, their clientele, is the intention of this site. Sourced from various means rooted in the health insurance industry - insurance carriers, governmental agencies, and industry news agencies, this is aimed as a resource of varying viewpoints to spark critical thought and discussion. We welcome your contributions.
Tuesday, September 22, 2020
Calif.'s New Virus Laws Will Keep Employers On Their Toes
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