California Extends Presumption of COVID-19 as Workers’ Compensation Injury and Modifies Notice Requirements for Potential Exposure

In addition to AB 152 extending COVID-19 leave through December 31, 2022, Governor Gavin Newsom has also signed into law two other COVID-related bills—AB 1751 and AB 2693—affecting employers’ policies regarding employees who contract COVID-19.

AB 1751 has extended current law governing employees who contract COVID-19.   Under this provision, employees who test positive during a COVID-19 “outbreak” at the workplace are presumed to have suffered an occupational injury and therefore are eligible for specified workers’ compensation benefits. An “outbreak” is defined as:

• for employers with 100 employees or fewer, four employees testing positive for COVID-19 within 14 calendar days;
• for employers with more than 100 employees, four percent of the employees reporting to the place of employment testing positive for COVID-19 within 14 calendar days; and
• any specific place of employment that is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a community college district chancellor, school president, or school superintendent due to a risk of infection with COVID-19.

Employers have 30 days to accept or deny claims from employees falling under the “critical worker” presumption, and 45 days to accept or deny claims from employees falling under the “outbreak” presumption. The presumption may be controverted by evidence including, but not limited to, “evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.”  The presumption in favor of the employee will continue until January 1, 2025. 

AB 2693, on the other hand, amends Cal. Lab. Code § 6409.6 to modify current employers’ duties to notify employees of potential exposure to COVID-19. Before AB 2693, employers were required to provide written notices to all employees within one business day of a confirmed case of COVID-19 on the worksite premises. With this new law, employers will also be allowed to post in the worksite a prominently displayed notice regarding the potential exposure, in lieu of written notices. This worksite notice must include:

• the dates on which an employee with a confirmed case of COVID-19 was on the worksite premises within the infectious period;
• the location of the exposures, including the department, floor, building, or other area, but the location need not be so specific as to allow individual workers to be identified;
• contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws; and
• contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per the guidelines of the federal Centers for Disease Control and Prevention and the COVID-19 prevention program per the Cal-OSHA COVID-19 Emergency Temporary Standards.

AB 2693 will be in effect until January 1, 2024.