New Employment Laws Related to COVID-19 Affect California Medical Practices
Workers’ Compensation and COVID-19 Presumption
Employees of California businesses that have at least five employees and are experiencing an outbreak of COVID-19 are entitled to workers’ compensation benefits under legislation signed by Gov. Newsom.
Taking effect immediately as an urgency bill, Senate Bill 1159 by Sen. Jerry Hill (D-San Mateo) creates a COVID-19 presumption for the purpose of access to workers’ compensation, meaning that an employee’s “injury” that includes illness or death resulting from COVID-19 is presumed to have occurred in the course of employment and is compensable for the dates of injury.
The presumption of injury applies to all employees at a workplace where a specified number of employees test positive for COVID-19 within a specified time frame.
For medical practices, the presumption applies if the workplace is experiencing an outbreak, which occurs when one of the following thresholds is met within 14 calendar days:
- Employers with five to 100 employees: Four or more employees test positive for COVID-19
- More than 100 employees: 4% of the employer’s workforce tests positive for COVID-19
Employees must first exhaust their paid sick leave benefits specifically available in response to COVID-19 and meet specified certification requirements before receiving any temporary disability benefits.
Employers who learn that an employee has tested positive for COVID-19 must report specific information in writing to their claims administrator within three days.
(CDA 9/24/2020)
Department of Labor Redefines Health Care Provider Exception to FFCRA
In August a New York federal court vacated the Department of Labor’s (DOL) definition (which the Court found to broad) of who could be exempted as a health care provider from the
Families First Coronavirus Response Act: Employer Paid Leave (FFCRA) leave obligations. The DOL has stepped back in to provide further clarity on this issue, providing revisions and clarifications to its FFCRA Temporary Rule.
The FFCRA which requires certain employers to provide paid sick leave and expanded FMLA (Family Medical Leave Act) to its employees provides an exception for health care providers. Under the revised rule, the DOL explains that the health care providers that an employer can elect not to cover under the FFCRA include:
1. Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and performing within the scope of their practice as defined under State law;
3. Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
4. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
5. Any other employee who is capable of providing health care services, meaning he or she is employed to provide:
● diagnostic services (taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results);
● preventive services (screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems);
● treatment services (performing surgery or other invasive or physical interventions, prescribing medication, providing or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments);
● or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care (bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples).
The revised rule further explains that the types of employees falling under this last category include only:
A. Nurses, nurse assistants, medical technicians, and any other persons who directly provide services described in 5 above;
B. Employees providing services described in 5 above under the supervision, order, or direction of, or providing direct assistance to, a person described in numbers 1-4 above or A above; and
C. Employees who are otherwise integrated into and necessary to the provision of health care services, such as laboratory technicians who process test results necessary to diagnoses and treatment.
The DOL further clarified that employees who do not provide health care services as described above are not health care providers even if their services could affect the provision of health care services, such as IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.
The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor’s office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. But, the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider.
Although it is not immune to further legal challenge, the DOL appears to have addressed the issues raised by the New York court. Employers are nonetheless wise to seek legal counsel with respect to how the various FFCRA requirements might apply in an individual circumstance.
(Patricia Anderson Pryor │National Law Review [9/13/2020])
Employers Must Provide Notice of Potential Exposure to COVID-19
Assembly Bill 685 by Eloise Reyes (D-San Bernardino) takes effect Jan. 1, 2021, and requires most private and public employers in California that receive notice of potential exposure to COVID-19 to “provide specified notifications to its employees within one business day of the notice of potential exposure.”
Employers must provide the notification in writing, which can be through email or text message, to all employees who were at the same worksite as the qualifying individual during the COVID-19 infectious period. A qualifying individual is one who either (1) received a laboratory-confirmed positive test for COVID-19, (2) received a diagnosis of COVID-19 from a licensed health care provider or (3) received an official order to self-isolate with potential COVID-19 symptoms.
The bill relies on the California Department of Public Health’s current definition of “infectious period,” which begins 48 hours before the positive COVID-19 test was administered and ends when the COVID-19-positive individual is released from quarantine or within 10 days.
Reporting outbreaks to local public health agencies
Also, under the new law, if an employer is aware of a COVID-19 outbreak ― defined as three confirmed cases within 14 days ― occurring at the worksite, the employer is required to report within 48 hours the confirmed cases to their local public health agency. The employer must continue to provide notice of subsequent cases to the agency.
CPMA is developing resources to assist practice owners with compliance with the bill’s requirements before they take effect.
Practice owners should be aware that also pursuant to AB 685, the California Department of Public Health and Cal/OSHA are developing regulations that would require employers to report positive cases of COVID-19 when they reach the outbreak threshold. Those regulations are expected to be in place before AB 685’s January implementation date.
CPMA will update members on the status and timeline of those regulations.