On Thursday, September 17, 2020, Governor Gavin Newsom signed three bills relating to Workers’ Compensation, expanded family leave, and COVID-19 exposure notification that will have implications for the state’s local educational agencies (LEAs).
SB 1159—Workers’ Compensation for COVID-19 Injury
Perhaps the bill with the most significant cost implications is Senate Bill (SB) 1159 (Chapter 85/2020), which establishes a disputable presumption that an employee who becomes ill from COVID-19 contracted the virus at their workplace and is thus eligible for Worker’s Compensation. For LEAs, the presumption is only applied if all of the following circumstances are met:
- The employee tests positive for COVID-19 within 14 days of working at the employee’s place of employment (excluding the employee’s home) at the employer’s direction
- The day in which the employee performed labor or services was on or after July 6, 2020 (Executive Order N-62-20, which expired on July 5, 2020, covered any positive test occurring between March 19 and July 5, 2020)
- The employee’s positive test occurred during a period of an “outbreak” at the employee’s specific place of employment, as defined by the bill
Employers may dispute the presumption with such evidence as workplace measures to reduce potential transmission of COVID-19 and an employee’s exposure to COVID-19 outside of the workplace. The bill requires an employee to exhaust their paid sick leave benefits before they can receive any temporary disability benefits. For employees of LEAs, paid sick leave benefits includes leave taken under the Families First Coronavirus Response Act (FFCRA), and industrial accident and illness leave provided by the statute (Education Code Sections [EC §] 44984 and 45192). This new law will likely lead to an increase in premium rates that LEAs pay for Workers' Compensation insurance since it reduces an employee’s burden to prove that they contracted COVID-19 in the workplace.
SB 1159 also underscores the importance for LEAs to be afforded some protection against liability and damages for injury relating to COVID-19, especially if they have established health and safety procedures consistent with COVID-19 health directives and guidance. Unfortunately, the Legislature balked at hearing a bill that would have provided these protections for LEAs (see “COVID-19 Liability Bill Does Not Receive a Hearing” in the August 2020 Fiscal Report) and there has been no indication that the Newsom Administration plans to address this issue. This means that the best bet for LEAs to receive any liability protections is at the federal level through an additional COVID-19 relief package. However, with negotiations at an impasse and the Republican-controlled Senate shifting their priorities to fill the Supreme Court vacancy left by Justice Ruth Bader Ginsburg’s recent passing, we likely will not see another relief package before the November election.
As an urgency bill, SB 1159 took effect immediately upon the Governor’s signature and is in place until January 1, 2023.
SB 1383—Expansion of California Family Rights Act
The Governor also signed SB 1383 (Chapter 86/2020) into law, which expands the California Family Rights Act (CFRA) to allow employees to use unpaid job protected leave to care for a domestic partner, grandparent, grandchild, sibling, or parent-in-law who has a serious health condition. It also reduces the employer threshold for this leave from 50 to 5 employees, making it unlawful for any employer with 5 or more employees to refuse an employee request to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. This change will significantly impact LEAs with 5-49 employees in that they now must provide the CFRA to qualified employees. Employees must have at least 12 months of service and must have worked at least 1,250 hours in order to be eligible for this leave.
While the bill does not change the unpaid requirement, it does significantly expand the eligible family members that an employee can care for. The changes to the CFRA create potential for employees who are covered under the Family and Medical Leave Act (FMLA) and CFRA to be entitled to a greater amount of protected leave.
LEAs have a few months to prepare for implementation of this new law as its provisions do not go into effect until January 1, 2021; however, it is important for employers to review existing leave policies now in order to implement the necessary changes in procedures.
AB 685—COVID-19 Exposure Notification
Another bill signed by the Governor last Thursday, September 17, 2020, was Assembly Bill (AB) 685 (Chapter 84/2020), which requires employers to provide written notice and instructions to employees who may have been exposed to COVID-19 at their worksite and enhances the Division of Occupational Health and Safety's (Cal/OSHA) ability to enforce health and safety standards to prevent workplace exposure to and spread of COVID-19.
Specifically, the bill requires an employer to take all of the following actions within one business day of receiving a notice of potential COVID-19 exposure:
- Provide written notice to all employees and the employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period
- Provide written notice to the exclusive representative of the employees who were on the premises at the same worksite as the qualifying individual which shall contain the same information as would be required in a Cal/OSHA Form 300 injury and illness log
- Provide all employees who may have been exposed and their exclusive representative with information regarding COVID-19-related benefits to which the employee may be entitled, including, but not limited to, Workers' Compensation, COVID-19-related leave, company sick leave, state-mandated leave, or supplemental sick leave
- Notify all employees, the employers of subcontracted employees, and the exclusive representative on the disinfection and safety plan the employer intends to implement
AB 685 will not go into effect until January 1, 2021, and several provisions of the bill will become inoperative on January 1, 2023.
Bill Signing Deadline
Despite the historically low number of bills sent to Governor Newsom this year, there are still a handful of significant education measures that are awaiting his action—including AB 1835 (Weber, D-San Diego), which would clarify that unspent supplemental and concentration grant dollars be used on services for unduplicated pupils in subsequent years, and AB 331 (Medina, D-Riverside), which would add the completion of a semester-long course in ethnic studies to the list of state high school graduation requirements. The Governor has until next Wednesday, September 30, 2020, to sign, veto, or allow bills to become law without his action.