Mind the Reporting Requirements Gap

By: By Mark Webb
Mark Webb
Mark Webb

January 1st brought with it a host of new laws from the California Legislature. One of these was Assembly Bill 685 (Reyes).  AB 685 requires certain notice and reporting requirements when there is an exposure to or outbreak of COVID-19 at a worksite. That is not the same as Cal/OSHA’s new regulation, the COVID-19 Prevention Emergency Temporary Standard (ETS), which became effective November 30th.  The ETS also has notice and reporting requirements when there is an exposure to, or outbreak of, COVID-19 at a workplace. An “exposed workplace” includes, but is not limited to, a “worksite” as defined in AB 685.

There is also Senate Bill 1159 (Hill), which addresses the question of when a COVID-19 case becomes a presumptive workers’ compensation claim. It, too, has reporting requirements. In the case of SB 1159, the reporting is to a claims administrator. Because SB 1159 was an urgency measure, it became effective on September 17th, 2020. The first reporting of claims, from July 6th, 2020 through September 16th, 2020, was to have occurred on or before October 29th, 2020. There is an ongoing reporting obligation of cases and claims enforced by the Labor Commissioner.

Confused yet?

The obligations under AB 685 are separate and distinct from the obligations under the ETS and SB 1159. Notification requirements in AB 685, for example, could be triggered by a diagnosis of COVID-19. The word “diagnosis” appears only once in the ETS in a somewhat oblique reference to the amount of information an employer needs to gather – as required in the COVID-19 Prevention Program – when there is a “COVID-19 case.” A person does not become a “COVID-19 case” solely based on a diagnosis.

The only references to a diagnosis in SB 1159 are related to the codification of Governor Newsom’s Executive Order N-62-20 and apply to claims on order before July 5th, 2020.

The notices required by AB 685 also do not go to the same universe of people who are required to receive notices under the ETS. That is partly due to the use of the term “subcontractor” in AB 685 and “independent contractors and other employers present” in the ETS. The reporting to local health departments in the event of an outbreak also differs. However, the ETS does note that effective January 1st, 2021, the reporting requirements of AB 685 are in addition to any reporting under the ETS.

There are currently two lawsuits seeking to have parts of the ETS declared invalid and unenforceable. Whether there will be an injunction sometime in January remains to be seen. Regardless, AB 685 is now law. It will not be affected by the outcome of the litigation over the ETS.

Failure to observe the requirements of AB 685 can subject an employer to civil penalties and with it a potential suit under the Labor Code Private Attorney Generals Act (PAGA).

Incorporating AB 685 requirements into an existing Injury and Illness Prevention Program (IIPP) – or a specific COVID-19 Prevention Program if one is being created – is an important first step when trying to comply with its requirements. Employers, producers, insurers, and loss control professionals should also continuously review the various guidances on AB 685 published by the Department of Industrial Relations and the California Department of Public Health.

Equally important is to assess the gaps between AB 685 and the ETS requirements. Complying with one set of rules to the exclusion of the other will only result in a big shock.

Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.