[Podcast] COVID-19 and California SB 1159: What It Means to Your Business
Essential – absolutely necessary; extremely important (dictionary.com).
When I think of essential workers during the COVID-19 pandemic I immediately think of our health care workers and first responders, working tirelessly to provide comfort to, and save the lives of, our loved ones. I often have to remind myself that the unsung heroes battling against COVID-19 in the trenches of commerce also include the Amazon warehouse employee making sure our orders are accurate and delivered on time, the bagger at Vons making sure our fruits aren’t smashed by the bottle of bleach we were lucky to find, and the fast food cashier taking our orders at the drive through, never forgetting to smile (with their eyes) and wishing us a good day. Each has a story to tell, a family to go home to, and as such deserve the highest level of protection to ensure their health and safety while at work. Health and safety are not just about face coverings, hand sanitizer, gloves and PPE, it’s also the policies and procedures created to combat COVID-19 and Workers’ Compensation coverage when all else fails.
The signing of California’s SB 1159 into law, codifying Executive Order N-62-20, on September 17, 2020, assumes that an injury resulting from a positive test or diagnosis of COVID-19 has arisen out of and in the course of the employment. This is a rebuttable presumption giving an employer the opportunity to dispute such claims. Furthermore, in order for the presumption to apply to non-patient care workers and first responders the following must be present:
The employee tests positive for COVID-19 within 14 days after a day that they employee performed labor or services at the employee’s place of employment at the employer’s direction.
The day referenced in number 1 above was on or after July 6, 2020.
The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
The employer has 5 or more employees.
An outbreak is defined in section 3212.88 (4) as follows:
If within 14 calendar days one of the following occurs at a specific place of employment -
If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19.
A specific place of employment is ordered to close by local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.
This legislation is not the only one that provides legal protections for essential workers. At present there are 17 States with workers’ compensation related legislation in relation to COVID-19, 11 States with pending legislation, 2 States with failed legislation, which may or may not be revisited, and 2 states with advisement. In total there are currently 32 States with some level of legislation or direction as it pertains to COVID-19 and workers’ compensation, that’s 64% of the United States. The takeaway, review your State’s specific legislation regarding worker rights in relation to COVID-19, and for those without State laws on the books, stay on top of breaking news in your area as it can change.
By now we are all familiar with social distancing, washing our hands, using hand sanitizer and covering up with a face covering, as these measures are our best defense against the spread of COVID-19. These guidelines vary in some fashion State by State and City by City, but all in all they have become a part of our daily lives. We adhere to them because it’s the right thing to do to show our respect for our fellow Americans. While these measures have become routine for many, as employers we need to ensure they are documented and embedded in our new company culture, just like any important safety initiative designed to neutralize preventable injuries in the workplace. Why? Seven months into this pandemic, employers are already being sued for wrongful death by loved ones of deceased employees and many attorneys have opined that the volume of cases will increase. While each case is unique the commonalities in many of these cases allege the following:
Failure to follow CDC, State, and/or Local guidelines
Failure to enforce the use of face coverings or other PPE
Failure to enforce social distancing
Failure to implement written policies and procedures to protect employees
Failure to provide safety equipment
Failure to provide proper training
Failure to conduct testing and/or contact tracing
Employers cannot assume employees understand and are following guidelines to prevent the spread of COVID-19. Designate a detail-oriented employee within your organization to handle your COVID-19 strategy. Ensure your policies and procedures are written, placed in your respective IIPPs and make sure all employees are trained. Place proof of training sessions as well as any other evidence, such as time date stamped photographs of posted signage reminding employees of guidelines, in your Safety Manual. Encourage and empower your team to be accountable to one another by reminding coworkers to cover up or social distance when they forget. In time, the company culture will change, but someone must drive that change. Making employee COVID-19 safety a focal point for all leaders in your organization will not prevent a lawsuit, but it can provide a strong defense. It could mean the difference between saving thousands of dollars in defense costs or spending thousands, it’s your bottom line, the choice is yours.