The 2020 California legislative session led to a number of new laws that already have had significant impact on employers in the state. Employers were barraged with a combination of state and federal pandemic-related legislation, numerous Executive Orders from Governor Gavin Newsom, and COVID-related health orders and ordinances from many counties and cities. However, the Legislature also adopted several important employment-related statutes that do not concern the pandemic, including annual pay data reporting requirements, modification of independent contractor requirements, and expansion of California Family Rights Act leave obligations. The challenges for employers with California workforces are greater than in any recent year.
Aside from the pandemic, the second year of Governor Newsom's term resembled his first in some respects: Governor Newsom exercised his veto power less often than did his predecessor, Governor Jerry Brown, and—for the second time—Governor Newsom signed a piece of legislation (SB 973: Annual Pay Data Reporting) that Governor Brown previously vetoed.
More than ever, employers with California workforces must be careful to pay attention to new developments and to understand and comply with both statewide requirements and local rules that apply in specific locations. Unfortunately, none of the COVID-related Executive Orders issued by Governor Newsom has any preemptive effect on local orders or ordinances
The following are summaries of the most important new enactments. Employers should consult with knowledgeable employment counsel about these new statutes.
COVID-19 WORKPLACE NOTICE AND REPORTING OBLIGATIONS: AB 685
The California Occupational Safety and Health Act of 1973 ("OSHA") requires the Division of Occupational Safety and Health ("Cal/OSHA") to prohibit entry to a place of employment when, in its opinion, the place of employment constitutes an imminent hazard to employees. This prohibition is limited to the immediate area in which the imminent hazard exists. OSHA also requires that a conspicuous notice of that condition be displayed at the place of employment. Violating this OSHA requirement is a crime.
Effective January 1, 2021, Assembly Bill 685 expressly authorizes Cal/OSHA to prohibit entry into a place of employment or the performance of an operation or process when, in its opinion, the place of employment or the operation or process exposes workers to the risk of infection of COVID-19 so as to constitute an imminent hazard to employees.
A "notice of potential exposure," which triggers the written notice requirement outlined below, occurs when the employer receives notice from:
- A public health official or licensed medical provider that an employee was exposed to a "qualifying individual" at the employer's worksite;
- An employee that the employee is a "qualifying individual";
- An employer's testing protocol that shows an employee is a "qualifying individual"; or
- A subcontractor that one of the subcontractor's employees is a "qualifying individual" and was at the employer's worksite.
A "qualifying individual" is a person who:
Has a laboratory-confirmed case of COVID-19;
- Has a positive COVID-19 diagnosis from a licensed health care provider;
- Has been ordered to isolate by a public health official due to COVID-19; or
- Has died due to COVID-19.
If an employer receives a "notice of potential exposure to COVID-19," AB 685 requires the employer to provide a written notice within one business day to:
- All employees and the employer of subcontracted employees who: (i) were at the same worksite as the "qualifying individual" within the infectious period (currently defined as 10 days by the California Health Department); and (ii) may have been exposed to COVID-19; and
- Any unions that represent the employees.
Note, the statute does not define "worksite."
The notice must include the employer's disinfection and safety plan, which must comply with CDC guidelines, and provide information regarding the applicable COVID-related benefits to which the employees may be entitled.
Recommendations for Employers. Employers should create a template notice of potential exposure that will allow them to comply with the stringent one-business-day notice requirement. Additionally, employers should review, or develop, their disinfection and safety plan to make sure it is compliant with CDC guidelines. Employers should also prepare for the possibility that one, or multiple, of their worksites could be temporarily shut down.
Cal/OSHA recently issued a regulation related to COVID-19. The regulation is described below.
CAL/OSHA COVID-19 EMERGENCY TEMPORARY STANDARDS
Cal/OSHA's COVID-19 emergency regulations went into effect on November 30, 2020. They apply generally to all California employees and places of employment, except health care employees, employees who work from home, and places of employment with only one employee who does not have contact with any other persons. The regulations require employers to implement a variety of strict workplace protections and impose new testing and notification requirements for COVID-19 outbreaks. Although emergency regulations generally remain in effect for 180 days, due to Executive Orders issued by Governor Newsom, these regulations will remain effective until Saturday, October 2, 2021, unless they are amended or extended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.