The last six months have brought significant legislative changes to the California workers’ compensation law with the passage SB 1159, AB 685, and the issuance of the Cal-OSHA regulations regarding COVID-19 in the workplace.
After providing our clients with a number of online presentations and question/answer sessions, we have seen a plethora of questions which have very similar concerns. Here are some of the most frequently-asked questions and answers that have arisen during these sessions.
It’s worth noting that every situation is different, and the specific facts of each case will dictate the responses to some answers. That being said, this is a good starting point to gain information specifically related to how to handle COVID-19 issues in the workplace.
Tracking the Virus
Question: Do we have to show that the exposure to the virus was work-related for the new COVID Cal-OSHA rules to apply?
Answer: No. The Cal-OSHA regulations are addressing a COVID infection in the workplace regardless of the source of the infection. The section of the regulations dealing with the investigation into COVID cases at work does require the employer to try to determine the source solely for the purpose of reducing the potential future exposure due to that source.
Slowing the Spread
Question: Employees continue to do activities together, including driving to and from work, taking lunches together, and taking breaks together. Is there a way to discourage these activities?
Answer: I would recommend staggering lunch or break times to try to reduce the potential for exposure during these times. I would also document instances where employees are carpooling together or attending gatherings together outside of work as these instances are not work-related. If the exposure is not work-related, then it will not be compensable as the presumption of compensability can be rebutted. Unfortunately, even these cases are still COVID cases and would count toward any outbreak calculation and trigger the remedial measures of the OSHA regulations.
Who to Tell About a Workplace Exposure
Question: When there is an exposure to a person with COVID-19 in the workplace, who must be notified?
Answer: While LC 3205(c)(3)(B)(2) does require the employer to determine who had exposure (6 feet away for 15 minutes in a 24 hour period) to a COVID case, notice of potential exposure under (c)(3)(B)(3) should go to all employees and any subcontractors’ employees at that place of employment since the regulations says “potential exposure” to COVID. This would include any employees at the location where the COVID case was working who may have had contact. As the regulations and frequently asked questions section from Cal-OSHA explains, an exposed workplace need not include other floors of a multi-story building when the COVID case only worked on one floor. Also, don’t forget that SB 1159 requires employers to notify their administrators about any and all positive tests.
Which Employees Count Toward an Outbreak
Question: Is an outbreak differentiated between employees exposed at work and those exposed away from work?
Answer: No, the outbreak just looks at the number of employees at a workplace that have COVID, and not where those individuals contracted COVID. How an employee contracted COVID is important since employers must investigate how a positive case occurred, and if it is determined that the exposure was outside of work, then the cleaning and protective policies would not have to be changed. When determining whether an outbreak has occurred, under the Cal-OSHA regulations or under Labor Code 3212.88, we simply count the number of positive cases that are in the workplace regardless of the source of infection.
Providing Testing
Question: Is it the employer’s responsibility to pay for testing for employees? Does this change if the employee was not exposed at work?
Answer: Cal-OSHA regulation 3205(c)(3)(B)(4) does require the employer to provide testing to employees at no cost when there has been a COVID case in the workplace. The testing is only required if there has been COVID exposure at work and the testing is for the employees at that place of employment.
If an employee is exposed to COVID while they are not at work (at a family gathering for example) the employer would not have to provide testing in that case. The complication arises when the employee who was exposed away from work brings COVID into the workplace and exposes other employees. At that point, COVID testing must be provided by the employer since the exposure to the other employees occurred in the workplace.
Source of Infection
Question: Do questions for tracking include determining where the positive employee has been on their personal time?
Answer: Asking questions about sources of exposure is important as the employer needs to determine how an employee became infected with COVID. If the exposure was due to a nonindustrial cause or source, then the employer would know that the work-related policies and procedures are effective since the exposure came from a non-work source. These questions are also helpful to determine the source of exposure to rebut the presumption of industrial causation in case the employee files a workers’ compensation claim.
These are common questions, but of course there are many more, and many questions that we have only received one time! And each day we receive new and interesting factual situations where these new legal requirements must be interpreted and applied. If you do have any such questions, please email us at covid@bradfordbarthel.com.
The questions and answers in this article was written by Zane P. Uribarri, a partner at The Law Offices of Bradford & Barthel’s Ontario office. Mr. Uribarri is also a member of Bradford & Barthel’s COVID-19 Response Team. If you have questions about coronavirus cases or any other workers’ compensation defense issues, please feel free to contact us at the Law Offices of Bradford & Barthel or at covid@bradfordbarthel.com.
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