Updated: Apr 26, 2021
A guide for California employers and employees.
Whether you are an employer or an employee in California, you need to know the basics of COVID-19 employment laws. If you know them already, then as an employer, you should do more to take care of your employees. If you're an employee, it's best that you know which benefits you're supposed to receive, which laws protects you from the pandemic, and that you have every right to take it up to labor attorney if need be.
California Governor Gavin Newsom signed new COVID-19-related labor laws:
Businesses or employers with 500 or more employees and health care employers with less than 500 employees are required to provide up to 80 hours of COVID-19-related supplemental paid sick leave to their California employees.
Create a presumption that COVID-19-related illnesses or deaths are covered injuries for workers' compensation purposes under some circumstances.
Mandate that employers with 500 or more employees provide up to 80 hours of COVID-19-related supplemental paid sick leave to their California employees.
The following sections go into each of the new rules.
Supplemental Paid Sick Leave (AB 1867)
AB 1867 (California Labor Code 248, 248.1) mandates that employers give up to 80 hours of COVID-19-related supplementary paid sick leave to their California workers (CSPSL).
Employees that are not protected by the federal Families First Coronavirus Response Act (FFCRA)1 or California Executive Order N-51-20 will take advantage of this leave (EO N-51-20). 2
AB 1867's criteria for employers in the nonfood sector took effect on September 19, 2020.
This law expires on December 31, 2020, or when any federal extension of the FFCRA expires, whichever comes first.
Who Does the New CSPSL Law Protect?
The updated CSPSL standards apply to all California employers with 500 or more employees in the United States. AB 1867 also applies to public and private agencies with less than 500 employees that hire health care providers or first services and opt-out of the FFCRA's emergency paid sick leave provisions.
Who is eligible for the CSPSL?
If a California employee working for a covered employer is unable to work for any of the following reasons, they are liable for CSPSL:
A COVID-19-related quarantine or exclusion order has been issued by the federal, state, or local government.
A health care professional advises the employee to self-quarantine or self-isolate due to COVID-19 concerns.
The employer has barred the employee from working due to health concerns regarding the possible transmission of COVID-19.
CSPSL must be made available to an eligible employee as soon as the employee requests it in writing or orally.
What is the minimum amount of leave that must be provided?
The amount of CSPSL an employee, can take is determined by how much work they do. Full-time employees are entitled to 80 hours of CSPSL, which is the law's maximum duration of time off. Some workers are paid fewer CSPSL depending on the number of hours they work. The table below illustrates how to find out how much CSPSL workers can handle.
What is the minimum wage for CSPSL employees?
For a qualifying cause, the employee decides how many hours of CSPSL he or she has to use, up to the maximum required. The employer cannot make the employee use any other paid or unpaid leave, paid time off, or holiday time before or in place of the CSPSL. Employees are entitled to CSPSL in addition to "regular" paid sick leave under Labor Code Section 246.
However, if an employer has already provided an employee with supplemental paid leave for any of the reasons mentioned above4 (other than paid sick leave available under Section 246), the other paid leave hours can be counted against CSPSL.
Additionally, if this other paid leave was given between March 4, 2020, and the effective date of this law (described above) but did not reimburse the employee in a sum equal to or greater than the amount needed for CSPSL, the employer may retroactively pay the difference and allocate the leave against its CSPSL obligations.
The CSPSL applies to the following:
The employee's daily pay rate for the most recent pay period.
The minimum wage in your state.
The minimum wage in the city.
Wage Statements. On employees' itemized wage statements or in separate writing on each defined payday, employers covered by this must provide written notice of the amount of available CSPSL.
Record keeping. A protected employer must maintain records of hours worked, leave accrued, and leave used by workers for at least three years.
SB 1159 (also known as California Labor Code sections 3212.86 and 3212.88) provides a new structure for COVID-19-related workers' compensation claims. As an emergency act, this law took effect on September 17, 2020, and will remain in effect until January 1, 2023.
For employers of five or more employees, SB 1159 establishes a rule that an accident or death caused by COVID-19 occurs out of and in the course of jobs and thus is protected by workers' compensation, if:
The employee/worker tested positive for COVID-19 or was diagnosed with COVID-19 within 14 days of working at their place of current employment (or at their employer's direction) since July 6, 2020.
The employee's positive test or diagnosis occurred during an "outbreak" at his or her workplace.
If one of the following happens at a particular place of employment within 14 calendar days, an "outbreak" exists:
Four workers test positive for COVID-19 if the employer has 100 or fewer employees at a given site.
If an employer has more than 100 workers at a single location, four percent of those who report to that location test positive for COVID-19; or
Due to a risk of infection/outbreak of COVID-19, the State Department of Public Health, a local public health agency, the Division of Occupational Safety and Health, or a school superintendent directs a particular place of employment to close.
This assumption can be disproved. Evidence relevant to rebutting the presumption which includes, but is not limited to, evidence of COVID-19 transmission prevention measures in effect at the employee's workplace and evidence of an employee's nonoccupational COVID-19 infection risks.
Gov. Newsom's Executive Order (EO N-62-20) created a similar rebuttable assumption, which was in force from March 19, 2020, to July 5, 2020. EO N-62-20 was codified in AB 685, and its terms were extended beyond July 5, 2020.
SB 1159 also mandates the submission of reports. When an employer knows or should know that an employee has tested positive for COVID-19, the employer must notify its claims administrator in writing, via electronic mail or facsimile, within three business days, of the following:
A positive test result for an employee.
The date on which the employee is found to be positive.
During the 14-day cycle preceding the employee's positive test, the address of the employee's particular place of employment.
The highest number of workers who came into work at the employee's specific place of employment in the 45 days before the employee's last day at that specific location.
Infection Prevention Requirements for COVID-19 (AB 685)
AB 685 (California Labor Code 6325, 6409.6, 64320) establishes new workplace notification and recordkeeping standards for COVID-19 cases. Cal/OSHA is also modified as a result of this. These rules will take effect on January 1, 2021, and will last until January 1, 2023.
An employer must:
Provide a "written notice" to all workers, their exclusive representative (if any), and the employers of subcontracted employees who were on the premises at the same worksite as a "qualifying person" (i.e., an individual with COVID-19)8 that they may have been exposed to COVID-19 within one business day of receiving a "notice of possible exposure to COVID-19" 6 in the workplace.
Provide information about COVID-19-related benefits to previously-exposed employees and their exclusive representative (if any) may be entitled (under applicable federal, state, or local laws) including, but not limited to:
Prerogatives for employees who were exposed:
Supplemental COVID-19-related leave
Company sick leave
Notify all workers, their exclusive representatives (if any), and the employers of subcontracted employees regarding the disinfection and safety plan that the employer intends to enforce and complete in compliance with the Federal Centers for Disease Control guidelines.
Staff who "conduct COVID-19 testing or screening or provide direct medical care or treatment to individuals who are suspected of having tested positive for COVID-19, are persons under investigation or are in quarantine or isolation due to COVID-19 unless the qualifying individual is an employee at the same worksite" are not considered "employees" for the purposes of the notice.
Additionally, if an employer is informed of the number of cases that meet the criteria of a COVID-19 "outbreak," the employer must inform the local public health agency (within the jurisdiction of the workplace/worksite) of the names, number, occupation, and worksite of employees who meet the definition of a qualified person within 48 hours. The business address and NAICS code of the worksite where the eligible individuals operate must also be recorded.
Any laboratory-confirmed cases of COVID-19 at the worksite must be reported to the local health department by an employer who has experienced such an outbreak.
Requirements for Record keeping
For at least three years, an employer must keep records of the above-written notices to workers, their exclusive members, and the employers of subcontracted employees. The notices to local public health departments are exempt from this record keeping provision.
Cal/OSHA AB 685 also modifies California OSHA law to :
Include potential COVID-19 exposure as an "imminent hazard" that allows Cal/OSHA to issue an Order Prohibiting Use (OPU) prohibiting entry to or use of a place of business
Streamlines the process for Cal/OSHA to issue "serious violations" by eliminating the pre-citation notice and the rebuttal-at-hearing process for employers. The nature of this warning does not allow for a thorough discussion of these changes.
COVID-19 Prevention Program Requirements
Employers must plan, adopt, and sustain a written COVID-19 prevention policy, a stand-alone program, or an integrated Accident and Illness Prevention Program.
The COVID-19 preventive program should provide mechanisms for the employer to:
COVID-19 information to employees, identifying and evaluating and correcting COVID-19 risks, investigating and responding to COVID-19 cases in the workplace, providing COVID-19 preparation and guidance to employees, ensuring physical distancing, and providing and ensuring proper use of face coverings.
Cal-OSHA has released a model plan framework to help employers create their own programs and procedures in accordance with the emergency standards and other employment laws.