MICHAEL SULLIVAN & ASSOCIATES BLOG

PIHRA's 2023 California HR Conference was a resounding success! It was great to spend time with our valued clients, co-workers, and colleagues.

MS&A Managing Partner, Eric De Wames, and PIHRA President, Tara Fournier, presented the latest installment of their ongoing session "Building Airplanes in Flight (episode 9)" on Day 2 of the conference. Their session was a crowd favorite, offering insights into creating a healthy workplace environment while maintaining compliance with California's strict employment laws. MS&A's Happy Hour at Gladstone's was another highlight of the conference. Thank you to everyone who joined us and made it such a memorable evening! Thanks as well to those who stopped by our booth to say hello and learn more about the firm. We hope we’ll see you in the fall at PIHRA’s CELU23!

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

Generally, an employer must deny a claim within 90 days to avoid a presumption that it's compensable. Labor Code 5402(b)(1) states, "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." Once the presumption attaches, it can be rebutted only by evidence that could not have been obtained with the exercise of reasonable diligence within the 90-day period. (SCIF v. WCAB (Welcher) (1995) 60 CCC 717.)

On February 3, 2023, Cal/OSHA’s COVID-19 Non-Emergency Standards was approved and became effective. The Non-Emergency Standards will remain in effect until February 3, 2025, and can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-apprvdtxt-oal.pdf.

The Non-Emergency Standards relax several previously mandatory requirements and have modified some important definitions.

The following are changes employers need to be aware of and implement.

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

2023 marks the end of COVID-19 emergency regulations and the implementation of permanent COVID requirements. While several of the new 2023 laws relate in some way to COVID, businesses can expect a return to more non-COVID related requirements. Employers must implement wage transparency policies and implement an expansion of CFRA and sick leave policies by expanding the definition of family member to include a non-blood related individual. To avoid retaliation claims, employers must be aware of additional protected activities included those related to reproduction and fertility and employees’ right to leave the workplace during natural disasters and emergency conditions. Finally, bereavement leave has been expanded and, for larger employers, new privacy requirements must be implemented.

Cal/OSHA Guidance Applicable to Employers Subject to the ATD

As monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. This guidance applies only to workplaces covered by the aerosol transmissible diseases (ATD) standard so, for now, employers not subject to the ATD are not required to follow these recommendations. See the guidance here.

On September 29, 2022, California’s Governor signed Assembly Bill (AB) 2693, which amends and extends the COVID-19 workplace notice requirements stipulated in AB 685 until January 1, 2024. AB 2693 can be found here.

The existing law, AB 685, was enacted in 2020 and requires employers to provide written notice to employees who may have been exposed to COVID-19 in the workplace. The notice must be provided to all employees at the worksite within one business day and must include information regarding benefits available to employees, the company’s disinfection and safety plan, and a statement of anti-discrimination and anti-retaliation. For a full description of AB 685 see the CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure update on Michael Sullivan & Associates' free eBook, Navigating COVID-19: a Legal Guide for Employers. Originally, this notification requirement was set to expire on January 1, 2023. AB 2693 extends this reporting requirement to January 1, 2024, and gives employers another option for complying with the notification requirements.