Legal Update Memo No. 31-2020(CC) – Senate Bill 1383 Expands the Application of the California Family Rights Act (“CFRA”) (CCD)

Download pdf: 31-2020(CC) – Senate Bill 1383 Expands the Application of the California Family Rights Act (CFRA) (NLK)

Under current law, the California Family Rights Act (“CFRA”) provides that all public agencies are covered employers without regard to the number of employees, but to qualify for CFRA, an employee must work at a site where at least 50 employees are employed within 75 surface miles.  Effective January 1, 2020, school districts, community college districts, county offices of education, and other public agencies with at least five (5) employees must provide CFRA leave to any employee who meets the following eligibility criteria:  employed at least 12 months, provided at least 1,250 hours of service during the applicable 12-month period, and has available CFRA leave.

Currently employees of public agencies with 25 to 49 employees are eligible for parental leave rights under the New Parent Leave Act (“NPLA”).  Effective January 1, 2021, employees of public agencies with at least five (5) employees will be eligible for parental leave under the CFRA.  In addition, if both “parents” of a newborn or newly adopted or newly placed foster child work for the same employer, they will each be entitled to take up to 12 workweeks of parental leave.  The current 12-week CFRA cap for parents with the same employer will no longer apply after December 31, 2021.  The 12-week Family and Medical Leave Act (“FMLA”) cap for “spouses” will continue to apply.

Under current law, CFRA leave is available to care for a parent, spouse or child, with a serious health condition.  The child must be under 18 years of age or incapable of self-care.  Effective January 1, 2021, leave rights under the CFRA expands covered family members to include a child of any age, a grandparent, grandchild, sibling, and registered domestic partner.

Effective January 1, 2021, the qualifying reasons to take leave pursuant to the CFRA expands to include a “qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the Armed Forces of the United States, as specified in [Unemployment Insurance Code section 3302.2].”  (Govt. Code sec. 12945.2(b)(4)(D))  Under the FMLA, leave is available to an employee whose spouse, child, parent, or next of kin has a qualifying exigency, but not to domestic partners.

Please contact our office if you have any questions regarding the upcoming changes to the CFRA, this Legal Update, or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 59-2020 – Senate Bill 1383 Expands the Application of the California Family Rights Act (“CFRA”) (K-12)

Download pdf: 59-2020 – Senate Bill 1383 Expands the Application of the California Family Rights Act (CFRA) (NLK)

Under current law, the California Family Rights Act (“CFRA”) provides that all public agencies are covered employers without regard to the number of employees, but to qualify for CFRA, an employee must work at a site where at least 50 employees are employed within 75 surface miles.  Effective January 1, 2020, school districts, community college districts, county offices of education, and other public agencies with at least five (5) employees must provide CFRA leave to any employee who meets the following eligibility criteria:  employed at least 12 months, provided at least 1,250 hours of service during the applicable 12-month period, and has available CFRA leave.

Currently employees of public agencies with 25 to 49 employees are eligible for parental leave rights under the New Parent Leave Act (“NPLA”).  Effective January 1, 2021, employees of public agencies with at least five (5) employees will be eligible for parental leave under the CFRA.  In addition, if both “parents” of a newborn or newly adopted or newly placed foster child work for the same employer, they will each be entitled to take up to 12 workweeks of parental leave.  The current 12-week CFRA cap for parents with the same employer will no longer apply after December 31, 2021.  The 12-week Family and Medical Leave Act (“FMLA”) cap for “spouses” will continue to apply.

Under current law, CFRA leave is available to care for a parent, spouse or child, with a serious health condition.  The child must be under 18 years of age or incapable of self-care.  Effective January 1, 2021, leave rights under the CFRA expands covered family members to include a child of any age, a grandparent, grandchild, sibling, and registered domestic partner.

Effective January 1, 2021, the qualifying reasons to take leave pursuant to the CFRA expands to include a “qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the Armed Forces of the United States, as specified in [Unemployment Insurance Code section 3302.2].”  (Govt. Code sec. 12945.2(b)(4)(D))  Under the FMLA, leave is available to an employee whose spouse, child, parent, or next of kin has a qualifying exigency, but not to domestic partners.

Please contact our office if you have any questions regarding the upcoming changes to the CFRA, this Legal Update, or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 30-2020(CC) – AB 2257 Revises AB 5 Regarding Independent Contractors (CCD)

Download pdf: 30-2020(CC) – AB 2257 Revises AB 5 Re Independent Contractors (JH)

AB 2257, which went into immediate effect on September 4, 2020, clarified and amended AB 5, a problematic law which went into effect January 2020 regarding independent contractors.

AB 5, which implemented the California Supreme Court’s 2018 decision in Dynamex,[1] provided that all workers are now employees, unless the employer can demonstrate that:

A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

B) The person performs work that is outside the usual course of the hiring entity’s business; and

C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the   work performed.

These three factors are also known as the “ABC Test.

AB 2257 has added exemptions and changed some of AB 5’s exemptions. It is important to note that if an exemption applies, this does not mean that the worker is an independent contractor. It just means that the worker now has to meet the more flexible “Borello test[2] in order to be considered an independent contractor: A) separate business location (which can be a residence); B) business license; C) can negotiate own pay rate; D) can set own hours (within reasonable business hours and deadlines); E) customarily engaged, or available, in the same type of work with other hiring entities; and F) customarily exercises discretion and independent judgment.

AB 5 established a “Business to Business” exemption, which applies where an independent contractor is acting as a sole proprietor. With the “Business to Business” exemption, a hiring entity has to meet the A-F Borello test and also meet 12 additional criteria (some of which overlaps with the Borello criteria), including a worker having a written contract, advertising, and providing his or her own tools. Under AB 5, one of the 12 criteria was that the worker could not provide services directly to the hiring entity’s customers, only to the hiring entity. AB 2257 changed this to apply only if the worker does not regularly contract with other businesses (and where the worker has employees, the workers must perform services only in the name of the worker’s business). AB 2257 also clarified that the worker’s separate business location can be his/her residence; the written contract has to specify the rate of pay and payment due date; the worker can contract with other businesses but is not required to; and the hiring entity can provide proprietary tools, materials, etc. Lastly, AB 2257 clarified that a contracting business under this exemption includes public agencies and quasi-public corporations. For example, a district could contract with a part-time psychologist who has his/her own LLC under this exemption.

AB 2257 also expanded the “Professional Services” exemption, which applied to freelance writers and other consultants, to include (1) digital content aggregators; (2) content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work; and (3) a specialized performer hired by a performing arts company or organization to teach a master class for no more than one week. Workers under this exemption must meet the A-F Borello test and additional criteria including not directly replacing an employee.

AB 2257 expanded the “Referral Agency” exemption to include graphic and web design, photography, tutoring, consulting youth sports coaching, minor home repair, interpreting services, and animal services like dog walking. It also added some music industry and artist exemptions, and added an exemption for individuals engaged by international exchange visitor programs.

Although the initial intent behind AB 2257 was to give more flexibility to performing artists and others, it also creates new questions and still leaves several issues unresolved. On the ballot this November is Proposition 22, which would exempt app-based rideshare and delivery drivers from AB 5.

The full text of AB 2257 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB2257 .

We understand many of our clients may seek the services of independent special education service providers. We encourage you to contact legal counsel to discuss specific facts of your situation and the legality of such arrangements in light of AB 5 and AB 2257.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Dynamex Operations West, Inc. v. Lee (2018) 4 Cal.5th 903.

[2] The Borello six-factor test was set forth in a prior California Supreme Court decision S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations (1989) 48 Cal. 3d 341 (1989).

Legal Update Memo No. 58-2020 – AB 2257 Revises AB 5 Regarding Independent Contractors (K-12)

Download pdf: 58-2020 – AB 2257 Revises AB 5 Re Independent Contractors (JH)

AB 2257, which went into immediate effect on September 4, 2020, clarified and amended AB 5, a problematic law which went into effect January 2020 regarding independent contractors.

AB 5, which implemented the California Supreme Court’s 2018 decision in Dynamex,[1] provided that all workers are now employees, unless the employer can demonstrate that:

A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

B) The person performs work that is outside the usual course of the hiring entity’s business; and

C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the   work performed.

These three factors are also known as the “ABC Test.

AB 2257 has added exemptions and changed some of AB 5’s exemptions. It is important to note that if an exemption applies, this does not mean that the worker is an independent contractor. It just means that the worker now has to meet the more flexible “Borello test[2] in order to be considered an independent contractor: A) separate business location (which can be a residence); B) business license; C) can negotiate own pay rate; D) can set own hours (within reasonable business hours and deadlines); E) customarily engaged, or available, in the same type of work with other hiring entities; and F) customarily exercises discretion and independent judgment.

AB 5 established a “Business to Business” exemption, which applies where an independent contractor is acting as a sole proprietor. With the “Business to Business” exemption, a hiring entity has to meet the A-F Borello test and also meet 12 additional criteria (some of which overlaps with the Borello criteria), including a worker having a written contract, advertising, and providing his or her own tools. Under AB 5, one of the 12 criteria was that the worker could not provide services directly to the hiring entity’s customers, only to the hiring entity. AB 2257 changed this to apply only if the worker does not regularly contract with other businesses (and where the worker has employees, the workers must perform services only in the name of the worker’s business). AB 2257 also clarified that the worker’s separate business location can be his/her residence; the written contract has to specify the rate of pay and payment due date; the worker can contract with other businesses but is not required to; and the hiring entity can provide proprietary tools, materials, etc. Lastly, AB 2257 clarified that a contracting business under this exemption includes public agencies and quasi-public corporations. For example, a district could contract with a part-time psychologist who has his/her own LLC under this exemption.

AB 2257 also expanded the “Professional Services” exemption, which applied to freelance writers and other consultants, to include (1) digital content aggregators; (2) content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work; and (3) a specialized performer hired by a performing arts company or organization to teach a master class for no more than one week. Workers under this exemption must meet the A-F Borello test and additional criteria including not directly replacing an employee.

AB 2257 expanded the “Referral Agency” exemption to include graphic and web design, photography, tutoring, consulting youth sports coaching, minor home repair, interpreting services, and animal services like dog walking. It also added some music industry and artist exemptions, and added an exemption for individuals engaged by international exchange visitor programs.

Although the initial intent behind AB 2257 was to give more flexibility to performing artists and others, it also creates new questions and still leaves several issues unresolved. On the ballot this November is Proposition 22, which would exempt app-based rideshare and delivery drivers from AB 5.

The full text of AB 2257 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB2257 .

We understand many of our clients may seek the services of independent special education service providers. We encourage you to contact legal counsel to discuss specific facts of your situation and the legality of such arrangements in light of AB 5 and AB 2257.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Dynamex Operations West, Inc. v. Lee (2018) 4 Cal.5th 903.

[2] The Borello six-factor test was set forth in a prior California Supreme Court decision S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations (1989) 48 Cal. 3d 341 (1989).

Legal Update Memo No. 29-2020(CC) – Employer Notice Obligations Related to COVID-19 Exposure and Outbreaks (AB 685) (CCD)

Download pdf: 29-2020(CC) – Employer Notice Obligations Related to COVID-19 Exposure and Outbreaks (AB 685) (NLK)

Effective January 1, 2021, Labor Code section 6409.6 requires employers to notify certain employees, their exclusive representatives, and employers of contracted employees, within one business day, after the employer receives a “notice of potential exposure” to COVID-19, and to notify the local public health agency, within 48 hours, after learning of a “COVID-19 outbreak” at a worksite.

A “notice of potential exposure” means notice (1) from a public health officer or licensed medical provider that an employee was exposed to a “qualifying individual” at the “worksite”, (2) from an employee or the employee’s emergency contact that the employee is a “qualifying individual”, (3) pursuant to the employer’s testing protocol that an employee is a “qualifying individual”, or (4) from a subcontracted employer that a qualifying individual was on the worksite of the employer. (Labor Code section 6409.6 (a)(1))

A “qualifying individual” means a person (1) who has a laboratory-confirmed case of COVID -19, a positive COVID-19 diagnosis from a licensed health care provider, or a COVID -19-related order to isolate provided by a public health official or (2) who died due to COVID-19, as determined by the county public health department or per inclusion in the county COVID-19 statistics. (Labor Code section 6409.6 (d)(4))

I.  Written Notice to Employees and Employers of Subcontracted Employees within One Business Day

A.  Notify all employees and employers of subcontracted employees who were on the premises of the same “worksite” as the “qualifying individual” within the “infectious period” of potential exposure to COVID-19. (Labor Code section 6409.6 (a)(1)

  1. “Infectious period” means the time a COVID-19-positive individual is infectious, as defined by the California Department of Public Health (CDPH).[1] (Labor Code section 6409.6 (d)(3))
  2. “Worksite” means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. (Labor Code section 6409.6 (d)(5))

B. Content of the Written Notice

The notice must include the information below.

1. The employee may have been exposed to COVID 19. (Labor Code section 6409.6 (a)(1))

2. Information regarding COVID-19-related benefits to which the employee may be entitled, such as:

a. Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA),

b. Leave pursuant to the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA),

c. Worker’s Compensation,

d. Sick Leave,

e. Extended Illness Leave (Differential / 50% Leave), and

f. Rights specified in the employee’s collective bargaining agreement or an applicable MOU.

3. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines.” (Labor Code section 6409.6 (a)(3) and (a)(4))

C. Form and Transmittal of Written Notice

  1. The notice must be provided in English and in the language understood by the majority of employees.
  2. The written notice may be provided by personal service, email, text, or other method “if it can reasonably be anticipated to be received by the employee within one business day of sending. (Labor Code section 6409.6 (a)(1))

II. Written Notice to the Exclusive Representative, if any, within One Business Day

Notify the exclusive representative of employees entitled to receive written notice, as specified in Section I, of the following:

A. Information regarding COVID-19-related benefits, to which the employees may be entitled (See Section I.B., above);

B. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines;” and

C. The information required in an incident report in a Cal/OSHA Form 300 injury and illness log,[2] unless the information is inapplicable or unknown to the employer. (NOTE: This requirement applies regardless of whether the employer is required to maintain a Cal/OSHA Form 300 log.)  (Labor Code section 6409.6 (a)(2), (a)(3), and (c))

III. Notice to the Local Public Health Agency within 48 Hours

If the employer is notified of a sufficient number of cases at a worksite to constitute a “COVID-19 outbreak,” as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of:

A. The names, number, occupation, and worksite of employees who are “qualifying individuals,” and

B. The business address and North American Industry Classification (NAIC) code of the employees’ worksites. (Labor Code section 6409.6 (b))

A “COVID-19 outbreak” means “three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.”[3]

IV. Maintenance of Records and Prohibition of Retaliation / Enforcement

A. Three Years

Employers are required to maintain records of the written notifications to employees and their exclusive representatives, if any, for a period of at least three years.  (Labor Code sec. 6409.6(k))

B. Retaliation is Prohibited

Retaliation against any worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate is prohibited.  (Labor Code section 6409.6(f))

Complaints regarding retaliation or failure to provide notices will be investigated by the Division of Labor Standards Enforcement.  Notice violations may result in the issuance of citations and civil penalties.  (Labor Code sec. 6409.6(l))

Please contact our office with questions regarding this Legal Update or any other legal matter. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2020 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] As of 9/02/20, CDPH defines the “infectious period” for symptomatic persons as two days before symptom onset and 10 days after onset, and for asymptomatic persons, 10 days from the initial positive test date.

[2] Employee’s name, job title, date of injury or onset of illness (date of potential exposure), where the event occurred, description of injury or illness (potential exposure to COVID-19), most serious result for each employee, number of days employee was away from work or on the job transfer or restriction, type of “injury” – injury, skin disorder, respiratory condition, poisoning, hearing loss, other.

[3] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Guidance.aspx. This is the reporting threshold as of September 18, 2020, and is subject to CDPH update at any time.

Legal Update Memo No. 57-2020 – Employer Notice Obligations Related to COVID-19 Exposure and Outbreaks (AB 685) (K-12)

Download pdf: 57-2020 – Employer Notice Obligations Related to COVID-19 Exposure and Outbreaks (AB 685) (NLK)

Effective January 1, 2021, Labor Code section 6409.6 requires employers to notify certain employees, their exclusive representatives, and employers of contracted employees, within one business day, after the employer receives a “notice of potential exposure” to COVID-19, and to notify the local public health agency, within 48 hours, after learning of a “COVID-19 outbreak” at a worksite.

A “notice of potential exposure” means notice (1) from a public health officer or licensed medical provider that an employee was exposed to a “qualifying individual” at the “worksite”, (2) from an employee or the employee’s emergency contact that the employee is a “qualifying individual”, (3) pursuant to the employer’s testing protocol that an employee is a “qualifying individual”, or (4) from a subcontracted employer that a qualifying individual was on the worksite of the employer. (Labor Code section 6409.6 (a)(1))

A “qualifying individual” means a person (1) who has a laboratory-confirmed case of COVID -19, a positive COVID-19 diagnosis from a licensed health care provider, or a COVID -19-related order to isolate provided by a public health official or (2) who died due to COVID-19, as determined by the county public health department or per inclusion in the county COVID-19 statistics. (Labor Code section 6409.6 (d)(4))

I.  Written Notice to Employees and Employers of Subcontracted Employees within One Business Day

A.  Notify all employees and employers of subcontracted employees who were on the premises of the same “worksite” as the “qualifying individual” within the “infectious period” of potential exposure to COVID-19. (Labor Code section 6409.6 (a)(1)

  1. “Infectious period” means the time a COVID-19-positive individual is infectious, as defined by the California Department of Public Health (CDPH).[1] (Labor Code section 6409.6 (d)(3))
  2. “Worksite” means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. (Labor Code section 6409.6 (d)(5))

B. Content of the Written Notice

The notice must include the information below.

1. The employee may have been exposed to COVID 19. (Labor Code section 6409.6 (a)(1))

2. Information regarding COVID-19-related benefits to which the employee may be entitled, such as:

a. Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA),

b. Leave pursuant to the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA),

c. Worker’s Compensation,

d. Sick Leave,

e. Extended Illness Leave (Differential / 50% Leave), and

f. Rights specified in the employee’s collective bargaining agreement or an applicable MOU.

3. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines.” (Labor Code section 6409.6 (a)(3) and (a)(4))

C. Form and Transmittal of Written Notice

  1. The notice must be provided in English and in the language understood by the majority of employees.
  2. The written notice may be provided by personal service, email, text, or other method “if it can reasonably be anticipated to be received by the employee within one business day of sending. (Labor Code section 6409.6 (a)(1))

II. Written Notice to the Exclusive Representative, if any, within One Business Day

Notify the exclusive representative of employees entitled to receive written notice, as specified in Section I, of the following:

A. Information regarding COVID-19-related benefits, to which the employees may be entitled (See Section I.B., above);

B. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines;” and

C. The information required in an incident report in a Cal/OSHA Form 300 injury and illness log,[2] unless the information is inapplicable or unknown to the employer. (NOTE: This requirement applies regardless of whether the employer is required to maintain a Cal/OSHA Form 300 log.)  (Labor Code section 6409.6 (a)(2), (a)(3), and (c))

III. Notice to the Local Public Health Agency within 48 Hours

If the employer is notified of a sufficient number of cases at a worksite to constitute a “COVID-19 outbreak,” as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of:

A. The names, number, occupation, and worksite of employees who are “qualifying individuals,” and

B. The business address and North American Industry Classification (NAIC) code of the employees’ worksites. (Labor Code section 6409.6 (b))

A “COVID-19 outbreak” means “three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.”[3]

IV. Maintenance of Records and Prohibition of Retaliation / Enforcement

A. Three Years

Employers are required to maintain records of the written notifications to employees and their exclusive representatives, if any, for a period of at least three years.  (Labor Code sec. 6409.6(k))

B. Retaliation is Prohibited

Retaliation against any worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate is prohibited.  (Labor Code section 6409.6(f))

Complaints regarding retaliation or failure to provide notices will be investigated by the Division of Labor Standards Enforcement.  Notice violations may result in the issuance of citations and civil penalties.  (Labor Code sec. 6409.6(l))

Please contact our office with questions regarding this Legal Update or any other legal matter. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

© 2020 School and College Legal Services of California 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] As of 9/02/20, CDPH defines the “infectious period” for symptomatic persons as two days before symptom onset and 10 days after onset, and for asymptomatic persons, 10 days from the initial positive test date.

[2] Employee’s name, job title, date of injury or onset of illness (date of potential exposure), where the event occurred, description of injury or illness (potential exposure to COVID-19), most serious result for each employee, number of days employee was away from work or on the job transfer or restriction, type of “injury” – injury, skin disorder, respiratory condition, poisoning, hearing loss, other.

[3] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Guidance.aspx. This is the reporting threshold as of September 18, 2020, and is subject to CDPH update at any time.

Legal Update Memo No. 56-2020 – U.S. Department of Education Rolls Back Interim Final Rule Re Allocation of CARES Act ESSER Funds (K-12)

Download pdf: 56-2020 – U.S. Department of Education Rolls Back Interim Final Rule Re Allocation of CARES Act ESSER Funds (JH)

The U.S. Department of Education (DOE) announced on September 9, 2020, that a controversial Interim Final Rule that purported to mandate how local educational agencies (LEAs) calculated equitable services for private school students as to the Coronavirus Aid, Relief, and Economic Security (CARES) Act funds is no longer in effect.

In March, Congress passed the CARES Act, part of which allocated $13.2 billion to the states as emergency relief funds to address the impact of COVID-19 (Elementary and Secondary School Emergency Relief Fund (ESSER Fund)).[1] The CARES Act required LEAs to use ESSER funds to “provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 (Title I) to students and teachers in [private] schools.”[2] Title I generally requires LEAs to provide equitable services to low-income students attending private schools based on the number of low-income children who attend those private schools. On July 1, 2020, the DOE issued an Interim Final Rule interpreting the CARES Act to require LEAs to allocate their ESSER funds to equitable services for private schools based on the total number of enrolled students, rather than the number of low-income students. Multiple states filed lawsuits challenging the Interim Final Rule.

On September 4, 2020, the U.S. District Court for the District of Columbia issued an opinion and an order vacating the Interim Final Rule.[3]  Similar orders enjoining enforcement of the Interim Final Rule had issued in other jurisdictions, including the Northern District of California.[4] Following the Opinion of the U.S. District Court for the District of Columbia, the DOE stated that the Interim final Rule was no longer in effect.[5]

In summary, the ESSER funds should be allocated to private schools as Title I funds are, based upon the number of Title I students. The California Department of Education (CDE) has directed LEAs to seek legal counsel before making any decisions related to allocation of funds for the provision of equitable services for CARES Act funds.[6] Please contact our office if any questions still remain regarding required uses of ESSER funds.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Pub. L. No. 116-136, 134 Stat. 281, §§ 18001-18003 (2020) (“CARES Act”).

[2] CARES Act § 18003.

[3] National Association for the Advancement of Colored People, et al., v. Elisabeth D. Devos, et al., No. 20-cv-1996 (DLF), at *7-10, 13 (D. D.C. Sept. 4, 2020). The Memorandum Opinion can be found here: https://oese.ed.gov/files/2020/09/NAACP-v-DeVos-DDC_Opinion-Granting-Partial-Summary-Judgment.pdf; and the corresponding Order can be found here: https://oese.ed.gov/files/2020/09/NAACP-v-DeVos-DDC_Order-granting-Partial-SJ-09-04-2020.pdf.

[4] See State of Michigan, et. al, v. Betsy Devos, et al., No. 3:20-cv-04478-JD, Order re Preliminary Injunction (N.D. Cal. Aug. 26, 2020).

[5] U.S. Department of Education, Office of Elementary and Secondary Education, Elementary and Secondary School Emergency Relief Fund https://oese.ed.gov/offices/education-stabilization-fund/elementary-secondary-school-emergency-relief-fund/?source=email (last modified Sept. 24, 2020).

[6] California Department of Education, ESSER Fund Frequently Asked Questions, FAQs 10-11 https://www.cde.ca.gov/fg/cr/esserfaqs.asp (last reviewed Sept. 3, 2020).

Legal Update Memo No. 55-2020 – Reminder of Obligation to Provide FAPE During Distance Learning (K-12)

Download pdf: 55-2020 – Reminder of Obligation to Provide FAPE During Distance Learning (JEN)

As most schools conclude their first month of school, it bears reminding that there has been no abrogation of the requirement to provide Free Appropriate Public Education (“FAPE”) despite many schools being required to provide education via distance learning. Both the U.S. Department of Education and the California Department of Education have stated unequivocally that no waiver of any of the core tenets of the Individuals with Disabilities Education Act (“IDEA”) has been provided, and that schools must provide education and related services to all students with disabilities, regardless of whether that is achieved via in-person services or via online services.[1] If a child’s FAPE cannot be provided, the child’s Individualized Education Program (“IEP”) team should review whether compensatory education is needed.[2]

As discussed below, several recent administrative findings and decisions have found that Local Educational Agencies (“LEAs”) should have provided the special education and related services in student’s IEPs during the COVID-19-related school closures.

Law Regarding Material Implementation of IEPs

There appears to be a common misconception that, because of distance learning, schools are permitted to offer fewer services than those agreed upon in students’ IEPs. This is not the case. Failing to implement a student’s IEP as written typically is considered a material implementation failure that can lead to a denial of FAPE.

In order to provide a student with a FAPE, a school district must deliver special education and related services “in conformity with” the student’s IEP. (20 U.S.C. § 1401(9)(D).) The Ninth Circuit has stated that: “IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute – not to decide on its own no longer to implement part or all of the IEP.” (Van Duyn v. Baker School Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (Van Duyn) (citing 20 U.S.C. §§ 1414(d)(3)(F), 1415(b)(3)).) A school district that fails to implement an IEP exactly does not violate IDEA “unless it is shown to have materially failed to implement the child’s IEP. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Van Duyn, 502 F.3d at 815.)

In Van Duyn, the seminal case on material implementation of IEPs in the Ninth Circuit, the court found the district’s failure to provide five hours of math tutoring per week out of the 10 hours specified in the student’s IEP was a material failure to implement the IEP. (502 F.3d at 823.) The court rejected the district’s argument that the student was required to prove the district’s failure to implement his IEP caused him to lose educational benefits, stating that: “Because the parties debate whether Van Duyn’s skills and behavior improved or deteriorated during the 2001–02 school year, we clarify that the materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (502 F.3d at 822.) However, the court also noted that a child’s educational progress, or lack of it, might be one indicator of whether a discrepancy in services was material. (Ibid.) Presenting the example of a child not provided the reading instruction called for in their IEP, the court noted, “a shortfall in the child’s reading achievement . . . would certainly tend to show that the failure to implement the IEP was material. On the other hand, if the child performed at or above the anticipated level, that would tend to show that the shortfall in instruction was not material.” (Ibid.)

The Ninth Circuit previously has addressed a similar situation to the current COVID-19-related school closures. In N.D. v. Hawaii Dept. of Education, 600 F.3d 1104 (9th Cir. 2010), the court held that a one day per week shutdown of public schools statewide to address a fiscal crisis did not constitute a change of placement for special education students. The court suggested in dicta that the student’s claim was “more properly characterized as a ‘material failure to implement the IEP.’” (Id. at 1117, citing Van Duyn, 502 F.3d. at 822.) The court explained, “A school district’s failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP.” (Ibid.)

Recent Cases Regarding Implementation of IEPs During Distance Learning

Several recent administrative findings, orders, and decisions against LEAs with regard to the provision of FAPE, including stay put, are worth reviewing. The decisions below relied on Van Duyn to analyze whether LEAs materially implemented students’ IEPs.

Decisions Implicating Compensatory Education

  1. In July 2020, the California Department of Education (“CDE”) issued noncompliance findings against a district in San Diego County ordering the district to provide compensatory remedies for missed Resource Specialist Program (“RSP”) and speech and language services. The CDE found that: “Although the District provided resources to the student’s parents and some assignments related to two of the student’s RSP goals that focused on the student’s ability to answer questions or write narratives, the District did not implement the Specialized Academic Instruction (“SAI”)/RSP services in the student’s IEP to the greatest extent possible.” The CDE noted that “The District did not persuasively set forth why ‘logistics’, or union agreements, or service providers’ personal commitments, prevented the RSP teacher from directly and simultaneously interacting with the student in relation to RSP activities to address all of the student’s RSP goals, as the provider had done prior to COVID-19.”
  1. On August 24, 2020, in Parent v. Los Angeles Unified School District, Office of Administrative Hearings (“OAH”) Case No. 2020050465, an Administrative Law Judge (“ALJ”) found that LAUSD denied the student a FAPE from March 16, 2020, through the filing of the complaint, by changing Student’s educational program to a distance learning program that did not adequately implement Student’s operative IEP. In that case, the ALJ found that the student’s nonpublic school provided various types of asynchronous instruction from March 12 to 26, 2020, and that beginning on March 27, 2020, the nonpublic school began using synchronous instruction. Speech and language services did not begin until April 25, 2020. Under distance learning, the student received at most 450 minutes per week of interactive instruction and completed individual learning in 150 minutes per week, for a total of 600 minutes of instruction per week. This was approximately 45 percent of the total instruction called for in the student’s IEP. The ALJ found that this “fell materially short of adequately implementing Student’s IEP.” The ALJ pointed out that this instruction did not allow the student to make meaningful progress on her goals as none of the instruction was designed to work on any of her goals. The ALJ ordered the district to fund 40 hours of postsecondary transition counseling and 1 hour of group speech and language services.
  1. On September 2, 2020, in Parent v. Norris School District, OAH Case Nos. 2020010423/2020060184, the ALJ found that Norris School District denied Student a FAPE during the 2020 COVID-19 school closure, through May 7, 2020, by failing to provide Student with academic instruction and speech therapy services. Specifically, the ALJ stated that “Although it was not possible to implement Student’s IEP as written, Norris was obligated to offer a temporary placement that ‘closely approximated’ Student’s last educational placement.” The ALJ noted that, during the period of school closures, “Norris provided Student with no direct instruction.” The ALJ found that the district should have sent prior written notice (“PWN”) “explaining how Norris proposed to change or modify Student’s IEP as an alternate mode of delivery of instruction during the school closure.” The ALJ noted that the general PWNs the district sent did not comply with this requirement. The ALJ found that the district should have held an IEP to consider how to serve the student, as the parents were unable to deliver the instructional materials provided by the district. This failure, and the failure to provide a specific PWN, denied Parents the opportunity to participate in the development of an IEP during school closures. The ALJ awarded approximately 2 hours of speech and language services and 25 hours of academic tutoring for these violations.

Orders Implicating Stay-Put Rights

  1. On August 24, 2020, in Parent v. Pleasanton USD and Contra Costa COE, OAH Case No. 2020070970, an ALJ issued an Order Granting Motion for Stay Put. The ALJ ordered the LEAs to provide in-person services in the duration and intensity provided in the IEP, to include a 1:1 Licensed Vocational Nurse, speech therapy, physical therapy, and vision services. The ALJ noted that the services can be provided by a nonpublic agency and in student’s home, and that: “Nothing in this Order requires Pleasanton and Contra Costa to provide services on school sites, or with school staff.” The ALJ also noted that the LEAs were under an order from the CDE compliance division to provide in-person physical therapy to student since July 2020, “which has been successful.”[3]
  1. On September 11, 2020, in Parent v. Campbell Union High School District and Santa Clara COE, OAH Case No. 2020080779, an ALJ issued an Order Granting Requests for Reconsideration and Granting in Part and Denying in Part Motion for Stay Put. The ALJ rescinded a prior order directing the LEAs to provide related services in the home based on the LEAs’ statements that they were providing the student’s educational program “in a manner that approximates the IEP as closely as possible in light of the school closures and the restrictions for in-person instruction and services imposed by COVID-19 health orders.”
  1. On September 22, 2020, in Parents v. Ventura Unified School District, OAH Case No. 2020090317, an ALJ issued an Order Denying Motion for Stay Put. The student requested that an order issue requiring the school district to provide one-on-one behavior therapy services in the home during distance learning. The ALJ found that stay put was implementation of the last consented-to IEP via distance learning, which the school district was doing. However, the ALJ noted that the school district must provide 1,775 minutes weekly of intensive individualized services, as provided for in the last consented-to IEP, not 1,175 minutes of intensive individualized services, as specified in the student’s distance learning plan.

Steps to Mitigate Risk

LEAs should be taking steps to mitigate the risk associated with adverse CDE compliance findings and due process decisions. Some of those steps include:

  • Offering services as detailed in students’ IEPs as close to 100% as possible.
  • Holding IEP meetings to discuss distance learning programs, especially if IEPs cannot be implemented as written or students are not accessing the distance learning program.
  • Writing into IEPs accommodations and services to support students in the current environment (distance learning environment).
  • Being upfront with parents about the potential need for compensatory services for students who are not accessing distance learning well or whose IEPs cannot be implemented as written.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] OSERS, Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak (March 12, 2020); OSERS, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (March 21, 2020); Report to Congress of U.S. Secretary of Education Betsy DeVos, Recommended Waiver Authority (April 27, 2020); CDE, Special Education Guidance for COVID-19, COVID-19 School Closures and Services to Students with Disabilities (March 20, 2020).

[2] OSERS, Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak (March 12, 2020); OSERS, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (March 21, 2020); CDE, Special Education Guidance for COVID-19, COVID-19 School Closures and Services to Students with Disabilities (March 20, 2020).

[3] The California Department of Public Health has given flexibility needed to provide in-person services to students with disabilities in its August 25, 2020, “Guidance for Small Cohorts/Groups of Children and Youth,” updated September 4, 2020. The accompanying FAQ specifies that “[s]tudents with disabilities should be prioritized by the LEA and school for receiving targeted supports and services.” (FAQ available at https://files.covid19.ca.gov/pdf/guidance-schools-cohort-FAQ.pdf)

Legal Update Memo No. 28-2020(CC) – SB 1159 – Workers’ Compensation Disputable Presumption – COVID Update (CCD)

Download pdf: 28-2020(CC) – SB 1159 – Workers’ Compensation Disputable Presumption – COVID Update (SPR)

On September 17, 2020, Governor Newsom signed into law SB 1159, which creates a “disputable presumption” that employees who contract COVID-19 did so in the course of employment for the purpose of obtaining workers’ compensation benefits under certain conditions.

The legislation follows the Governor’s Executive Order N-62-20[1] signed on May 6, 2020, which created a disputable presumption that employees contracted COVID-19 at work and would be eligible for workers’ compensation benefits under specific circumstances.  The Executive Order expired on July 5, 2020.  The new law incorporates the Executive Order into the statute for the period between March 19, 2020 through July 5, 2020,[2] and adds additional framework for COVID-19-related illness that occur between July 6, 2020 and January 1, 2023, at which point the presumption will no longer apply.  The law goes into effect immediately as emergency legislation.

Requirements for Coverage
The disputable presumption applies to all employees who test positive during an “outbreak” at the employee’s “specific place of employment,” as long as the employer has 5 or more employees[3] and the following circumstances apply:

  1. The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  2. The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
  3. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

“Specific Place of Employment”[4]
The law defines a “specific place of employment” as a building, store, facility, or agricultural field where an employee performs work at the employee’s direction.  This does not include the employee’s home or residence, unless providing home health care services to someone else in the employee’s home.

For an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.”

“Outbreak”[5]
An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

  1. For employers with 100 employees or fewer, 4 employees test positive for COVID-19.
  2. For employers with 100 employees or more, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
  3. A specific place of employment is ordered closed by a local/state public health department, CAL-OSHSA, or a school superintendent.

There must be an “outbreak” for the presumption to apply, during which an employee tests positive.  If there is no “outbreak,” then the presumption does not apply.

Employer’s Duty to Report COVID-19 Claims[6]
From September 17, 2020 forward, when an employer knows or has reason to know that an employee has tested positive for COVID-19, the employer shall report to their workers’ compensation claims administrator in writing via electronic mail or facsimile within three business days all of the following:

  1. An employee has tested positive. The employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a workplace injury claim form.
  2. The date the employee tests positive, which is the date the specimen was collected for testing.
  3. The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
  4. The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

When an employer is aware of an employee who tests positive on or after July 6, 2020 and prior to September 17, 2020, the employer must report the required information in numbers 1-4 to the claims administrator within 30 business days from September 17, 2020 (as opposed to the 3 business day requirement for reporting after September 17, 2020).  For the information contained in number 4, above, the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020 and September 17, 2020.[7]

Penalties for intentionally submitting false or misleading information or failing to submit information may lead to a civil penalty of up to $10,000.[8]

Benefits Payable
Compensation payable under the law where the presumption is not overcome includes full hospital, surgical, medical treatment, disability indemnity, and death benefits.[9]

The law requires an employee exhaust paid sick leave benefits specifically available in response to COVID-19, such as those under the Families First Coronavirus Response Act,[10] and sick leave benefits under Education Code sections 87780, 87787, 88192, or 88196 are due and payable, prior to receiving any temporary disability benefits.  If an employee does not have sick leave benefits, the employee shall be provided temporary disability benefits without a waiting period.[11]

Disputing the Presumption
An employer can dispute the presumption if it can provide evidence there were measures in place to reduce the transmission of COVID-19 and evidence of an employee’s non-occupational risks of COVID-19 infection.[12]

The workers’ compensation claim carrier has 45 days to reject the claim after the date it is filed, or the illness shall be presumed compensable (non-COVID-19 related claims provide 90 days to reject a claim).[13]  The Governor’s Executive Order that was incorporated into the statute for the period covering March 19, 2020 to July 5, 2020 maintains the 30 day period for a claim to be rejected after the date it is filed.[14]

Conclusion
It is critically important that districts work with their workers’ compensation claims carriers and follow the reporting requirements as outlined in this Legal Update in the unfortunate event that an employee tests positive for COVID-19.  The law provides further incentives for districts to follow health and safety guidelines of public health officials and take preventative measures to restrict the spread of COVID-19 at each specific place of employment.  If a district has reason to believe an employee has tested positive for COVID-19, the district must work quickly to provide the required information to its workers’ compensation claims carrier in a timely manner.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf

[2] Labor Code section 3212.86

[3] Labor Code section 3212.88(a)

[4] Labor Code section 3212.88(m)(3)

[5] Labor Code section 3212.88(m)(4)

[6] Labor Code section 3212.88(i)

[7] Labor Code section 3212.88(k)(2)

[8] Labor Code section 3212.88(j)

[9] Labor Code section 3212.88(c)

[10] See Legal Update No. 14-2020(CC) – REVISED, Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act

[11] Labor Code section 3212.88(d)

[12] Labor Code section 3212.88(e)

[13] Labor Code section 3212.88(f)

[14] Labor Code section 3212.86(f)

Legal Update Memo No. 54-2020 – SB 1159 – Workers’ Compensation Disputable Presumption – COVID Update (K-12)

Download pdf: 54-2020 – SB 1159 – Workers’ Compensation Disputable Presumption – COVID Update (SPR)

On September 17, 2020, Governor Newsom signed into law SB 1159, which creates a “disputable presumption” that employees who contract COVID-19 did so in the course of employment for the purpose of obtaining workers’ compensation benefits under certain conditions.

The legislation follows the Governor’s Executive Order N-62-20[1] signed on May 6, 2020, which created a disputable presumption that employees contracted COVID-19 at work and would be eligible for workers’ compensation benefits under specific circumstances.  The Executive Order expired on July 5, 2020.  The new law incorporates the Executive Order into the statute for the period between March 19, 2020 through July 5, 2020,[2] and adds additional framework for COVID-19-related illness that occur between July 6, 2020 and January 1, 2023, at which point the presumption will no longer apply.  The law goes into effect immediately as emergency legislation.

Requirements for Coverage

The disputable presumption applies to all employees who test positive during an “outbreak” at the employee’s “specific place of employment,” as long as the employer has 5 or more employees[3] and the following circumstances apply:

  1. The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  2. The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
  3. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

“Specific Place of Employment”[4]
The law defines a “specific place of employment” as a building, store, facility, or agricultural field where an employee performs work at the employee’s direction.  This does not include the employee’s home or residence, unless providing home health care services to someone else in the employee’s home.

For an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.”

“Outbreak”[5]
An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

  1. For employers with 100 employees or fewer, 4 employees test positive for COVID-19.
  2. For employers with 100 employees or more, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
  3. A specific place of employment is ordered closed by a local/state public health department, CAL-OSHSA, or a school superintendent.

There must be an “outbreak” for the presumption to apply, during which an employee tests positive.  If there is no “outbreak,” then the presumption does not apply.

Employer’s Duty to Report COVID-19 Claims[6]
From September 17, 2020 forward, when an employer knows or has reason to know that an employee has tested positive for COVID-19, the employer shall report to their workers’ compensation claims administrator in writing via electronic mail or facsimile within three business days all of the following:

  1. An employee has tested positive. The employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a workplace injury claim form.
  2. The date the employee tests positive, which is the date the specimen was collected for testing.
  3. The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
  4. The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

When an employer is aware of an employee who tests positive on or after July 6, 2020 and prior to September 17, 2020, the employer must report the required information in numbers 1-4 to the claims administrator within 30 business days from September 17, 2020 (as opposed to the 3 business day requirement for reporting after September 17, 2020).  For the information contained in number 4, above, the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020 and September 17, 2020.[7]

Penalties for intentionally submitting false or misleading information or failing to submit information may lead to a civil penalty of up to $10,000.[8]

Benefits Payable
Compensation payable under the law where the presumption is not overcome includes full hospital, surgical, medical treatment, disability indemnity, and death benefits.[9]

The law requires an employee exhaust paid sick leave benefits specifically available in response to COVID-19, such as those under the Families First Coronavirus Response Act,[10] and sick leave benefits under Education Code sections 44977, 44984, 45192, or 45196 are due and payable, prior to receiving any temporary disability benefits.  If an employee does not have sick leave benefits, the employee shall be provided temporary disability benefits without a waiting period.[11]

Disputing the Presumption
An employer can dispute the presumption if it can provide evidence there were measures in place to reduce the transmission of COVID-19 and evidence of an employee’s non-occupational risks of COVID-19 infection.[12]

The workers’ compensation claim carrier has 45 days to reject the claim after the date it is filed, or the illness shall be presumed compensable (non-COVID-19 related claims provide 90 days to reject a claim).[13] The Governor’s Executive Order that was incorporated into the statute for the period covering March 19, 2020 to July 5, 2020 maintains the 30 day period for a claim to be rejected after the date it is filed.[14]

Conclusion
It is critically important that districts work with their workers’ compensation claims carriers and follow the reporting requirements as outlined in this Legal Update in the unfortunate event that an employee tests positive for COVID-19.  The law provides further incentives for districts to follow health and safety guidelines of public health officials and take preventative measures to restrict the spread of COVID-19 at each specific place of employment.  If a district has reason to believe an employee has tested positive for COVID-19, the district must work quickly to provide the required information to its workers’ compensation claims carrier in a timely manner.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf

[2] Labor Code section 3212.86

[3] Labor Code section 3212.88(a)

[4] Labor Code section 3212.88(m)(3)

[5] Labor Code section 3212.88(m)(4)

[6] Labor Code section 3212.88(i)

[7] Labor Code section 3212.88(k)(2)

[8] Labor Code section 3212.88(j)

[9] Labor Code section 3212.88(c)

[10] See Legal Update No. 23-2020 – REVISED, Emergency Family and Medical Expansion Act and Emergency Paid Sick Leave Act

[11] Labor Code section 3212.88(d)

[12] Labor Code section 3212.88(e)

[13] Labor Code section 3212.88(f)

[14] Labor Code section 3212.86(f)