Prior to the end of the 2020 legislative year, Governor Newsom signed a flurry of new bills in an effort to provide additional COVID-19 safeguards. These new laws dictate the way in which businesses navigate COVID-19 protections for their employees. Two bills in particular, SB 1159 and AB 685, will have the biggest impact on California agricultural employers. These statutes have a number of elements which will require an investment of time and resources to develop policies and practices in an effort to be compliant.
Senate Bill 1159, Workers’ Compensation Presumption, is essentially an extension of Governor Newsom’s Executive Order N-62-20, which provided Coronavirus related workers’ compensation benefits to first responders, farmworkers, grocery store workers, warehouse workers and others. The executive order was effective between March 19 through July 5, 2020. This new legislation, which is now a part of the labor code and will be enforced by the California Department of Industrial Relations, retroactively took effect on July 6, 2020 and will expire on January 1, 2023. In addition to providing coverage to firefighters, peace officers and health care workers, this bill also applies to California businesses with five or more employees. Employees would qualify for coverage if the following criteria are meet:
- Employee worked outside of their home and are under the direction of their employer.
- Within 30 days, the employee has a positive COVID-19 test or diagnosis.
- The test is within a 14-day window of when the employee last worked.
A compensability decision must be made within 30 days. As such, timely reporting of a worker’s compensation claim is crucial, and if not done within three business days, employers could face substantial civil penalties. Please note, employers must report the claim even if it may not be work related. However, employers are not required to report negative COVID-19 tests. SB 1159 is fairly complex, and we highly recommend discussing this with your insurance provider or workers’ compensation carrier to get additional information and resources to be prepared when the time arrives to report a claim.
The other bill worthy of notation is AB 685. The intent of this legislation was to increase transparency in regards to COVID-19 reporting. This new law will go into effect Jan. 1, 2021 through Jan. 1, 2023. AB 685 has expanded the scope of Cal/OSHA’s ability to enforce COVID-related safety requirements. As a result of this new law, Cal/OSHA inspectors are in full force issuing a number of citations throughout the state under the banner of COVID-19 compliance. Numerous citations have already been issued, and fines in the food and farming industry are ranging from $5,000 to $51,000. The details of company-specific COVID-related citations and fines are also now being featured in Department of Industrial Relations news releases. This law also gives Cal/OSHA the ability to issue Orders Prohibiting Use, effectively shutting down operations where exposure is prevalent. Additionally, they have been given the authority to issue serious violations without providing the standard 15-day notice.
The second section of this law creates new requirements for employers to notify their employees and any relevant union about exposure risk to COVID-19 in the workplace as well as to report a COVID-19 outbreak to their local health departments. Failure to comply with the new reporting requirements might result in being issued administrative citations and civil liabilities. In order to meet these new requirements, employers will need to implement additional policies and procedures as well as provide additional training to their employees. Here are a few key elements to consider when developing your plan.
It will be critical to identify an individual within your company to take the lead on receiving exposure information from employees and also reporting to appropriate local agencies. Frequent and consistent employee training will be the key to a successful reporting program. Educating your employees on the essential elements of COVID-19 signs and symptoms, paid sick leave resources and knowing who to report to if they begin to experience any of those symptoms is critical. Make this the part of your daily meetings and be sure to emphasize your COVID-19 IIPP safety practices and procedures.
Notice Reporting Requirement
Notice to employees is required under AB 685 when qualifying individuals being exposed include the following: a) A laboratory-confirmed case of COVID-19; b) A positive COVID-19 diagnosis; c) A COVID-19 related order to isolate provided by a public health official; or d) Somebody who has died due to COVID-19 (as determined by a county public health department.)
If an individual has met the criteria listed above, the employer must provide a written notice within one day to all employees who were within the same worksite as the qualifying individual during the infectious period. Please keep in mind to protect the qualifying individuals’ identity and rights to medical privacy under HIPPA laws.
This written notification shall be provided in English and the language understood by a majority of the employees. This notification should be made in the manner normally used to communicate with your employees, such as hand-delivered letter, email or text message, and this documentation should be kept for at least three years. Notification also needs to be made to those who you have contracted with (growers and farm labor contractors) and union representatives if applicable.
Finally, if your company has an outbreak, which is defined as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period, you must notify the local department of public health in the jurisdiction of the worksite. Keep in mind this legislation speaks to reporting cases to your local department of public health, however you also have reporting responsibility for Cal/OSHA as well. To determine when to report COVID-19 cases to Cal/OSHA and/or when to record them on your Log 300, please visit dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19 for detailed information.
These new regulations will require you and your team to think through your processes and procedures. As always, your success will stem from consistent and regular communication with your employees on the changes to the laws and how you are working to create a work environment that ensures they are safe, healthy and whole. For more information about worker safety, human resources, labor relations, pesticide safety or food safety issues, please visit www.agsafe.org, call (209) 526-4400 or email email@example.com.
AgSafe is a 501c3 nonprofit providing training, education, outreach and tools in the areas of safety, labor relations, food safety and human resources for the food and farming industries. AB 685 legislation guidance was provided by Patrick Moody, Barsamian and Moody.