One of the goals of SB 1159 was to identify workplace exposure early and there are requirements the employer must meet in reporting COVID-19 cases. Labor Code section 3212.88(i) mandates reporting to the employer’s claims administrator certain information for injury dates after 7/6/20. Within three business days of when an employer knows or reasonably should know that an employee has tested positive for COVID-19 an employer shall report the following:
- An employee has tested positive. The employer shall provide any personally identifiable information regarding the employee who tested positive unless that employee is asserting the condition is work related or has filed a claim form for COVID-19 injury/exposure.
- The date the employee tests positive. This date is further defined as the date the specimen for testing was collected rather than when the employee learns of the test results.
- The specific address or addresses of the employee’s specific place of employment during the 14 days preceding the positive test date.
- The highest number of employees who reported to work at the employee’s specific place(s) of employment. The employer must look back 45 days from the last date the employee worked at each specific place of employment for purposes of counting the highest number of employees who reported to work.
This information will aid in identifying workplace exposure early as well as addressing contact tracing concerns. At the same time, item 4 could prove to be a challenge for employers operating at multiple locations with employees who travel between those premises. Employers would do well to consider whether their current administrative functions such as human resources and payroll have the capability to look back 45 days in order to accurately provide the required information.
These reporting requirements focus on communications between an employer and its claims administrator, but what about reporting requirements to others? Additional reporting requirements will kick in starting January 1, 2021 and will require employers to notify employees and the employers of subcontracted employees who were on the same premises as the “qualifying individual” that they may have been exposed to COVID-19.
Labor Code section 6409.6, effective January 1, 2021, requires an employer to take certain actions within one business day from receipt of a notice of potential exposure to COVID-19. These actions include, but are not limited to, the following:
- 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 that they may have been exposed to COVID-19. The employer should provide this notification in the same manner as it normally uses to communicate employment-related information.
- Provide a written notice to the exclusive representative, if any, of the employees, above.
- Provide notice of potential COVID-19-related benefits including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee.
- Provide information to all notified individuals, including the employer of subcontracted employees of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
According to the statute, a notice of potential exposure can come from a public health official, a licensed medical provider, the qualifying individual, the employer’s testing protocols, or from a subcontracted employer.
It is also important to understand exactly what a qualifying individual is. A qualifying individual has been defined as any person who has any of the following:
- A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health.
- A positive COVID-19 diagnosis from a licensed health care provider.
- A COVID-19-related order to isolate provided by a public health official.
- Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
Please note the information above is not exhaustive and only intended to provide employers with a general overview of some of the mandates that have or will be implemented to address COVID-19 in the workplace. Employers should consult with appropriate professionals for questions specific to their organization.