The federal government, State of California and local jurisdictions have all adopted and modified laws relating to COVID-19 in the last several months to respond to the spike in COVID-19 cases in late 2020 and the availability of effective vaccinations. Now that the infection rate is dropping across the state and country and vaccines are available to a wider segment of the public, businesses and consumers are asking whether this is the beginning of the end of the pandemic. From a legal perspective, the answer is clear: not quite. There is a light at the end of the tunnel, though, and to push through to the hoped-for future, dealers in San Diego should be aware of current and pending laws that will continue to impose COVID-related duties on them.

COVID-Related Leave

Congress passed, and President Trump eventually signed a new spending bill, the Consolidated Appropriations Act of 2021 (“Spending Bill”), at the beginning of January 2021. The most important provision for California businesses is the modification of the Families First Coronavirus Relief Act (FFCRA). To give some background, this past spring, Congress passed the FFCRA, which applies to employers with fewer than 500 employees. The law includes two main provisions: Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave (EFML). The EPSL provision mandates that qualified employers provide up to two weeks of paid sick leave (in addition to any state/local/other sick leave you provide) to qualified employees. The EFML provision expands FMLA job-protected leave to employees who have been employed for at least 30 days if they are unable to work (or telework) due to a need for leave to care for a child of such employee if the school or place of care has been closed, or the child care provider of the employee’s child is unavailable, due to a public health emergency.

The Spending Bill modifies certain provisions of the FFCRA but did not extend EPSL mandated leave. Therefore, mandated leave under the FFCRA ended on Dec. 31, 2020. Instead, starting on Jan. 1, 2021, qualifying employers could voluntarily provide paid sick leave, relying on the same criteria established in the EPSLA. In return for providing emergency paid sick leave or emergency paid FMLA leave, employers will receive a tax credit. However, that tax credit is currently only applicable for leave through March 31, 2021.

This deadline may change, though, and employers may see a reinstatement and expansion of the mandate. As of Feb. 22, 2021, the nearly $2 trillion “American Rescue Plan” working its way through Congress would reinstate the EFML and EPSL leave for employers who qualified under the FFCRA. The law would also impose this same leave mandate on employers with more than 500 employees. Under this plan, only employers with fewer than 500 employees could be reimbursed for this leave’s full cost.

While the FFCRA leave mandate did not apply to employers with over 500 employees, California enacted Assembly Bill 1867 (“AB 1867”) in September, which effectively extended the paid leave provisions of the FFCRA to large employers in California. The California legislature included a caveat in AB 1867 that also extended the bill beyond 2020 if the FFCRA was amended. Therefore, because Congress extended the FFCRA in the Spending Bill, qualifying employers with 500 or more employees must continue to offer up to 80 hours of paid leave if an employee qualifies.

In September of 2020, San Diego County adopted an ordinance also requiring that employers with 500 or more employees offer up to 80 hours of paid sick leave to employees. This temporary ordinance expired on Jan. 1, 2021, and has not been extended.

Cal/OSHA Emergency Regulations

Cal/OSHA finalized new temporary emergency standards for employers to prevent the spread of COVID-19 on Nov. 30, 2020. These regulations largely reinforce the requirements of the Governor’s Blueprint for a Safer Economy guidance. This guidance remains crucial for San Diego dealers because the current San Diego County health order last issued Feb. 6, 2021, requires compliance with these rules for any essential business to remain open. That means that dealerships that are not compliant with the guidance could face enforcement from the state or county and liability under the

Cal/OSHA regulations. The basic requirements are as follows:

• Establish, implement, and maintain an effective written COVID-19 Prevention Program that includes:
  • Identifying and evaluating employee exposures to COVID-19 health hazards.
  • Implementing effective policies and procedures to correct unsafe and unhealthy conditions (such as safe physical distancing, modifying the workplace and staggering work schedules).
  • Providing and ensuring workers wear face coverings to prevent exposure in the workplace.
  • Provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state or local laws.
• If there are three or more cases of COVID-19 within 14 days at a workplace, offer COVID-19 testing to potentially exposed employees at no cost to the employees during their working hours and provide them with information on COVID-19 related benefits.
• Contact the local health department no later than 48 hours after learning of three or more COVID-19 cases within 14-days to obtain guidance on preventing the further spread of COVID-19 within their workplace.
• Maintain a record of and track all COVID-19 cases among employees while ensuring medical information remains confidential. These records must be made available to employees, authorized employee representatives or otherwise required by law, with personal identifying information removed.

The regulation also sets out specific standards for determining if an “exposure” to COVID-19 has occurred at a workplace. The regulation defines exposure to COVID-19 as any time an employee was within six feet of a positive COVID-19 case for a cumulative total of 15 minutes within any 24-hour period during the COVID-19 case’s “high-risk exposure period.” The high-risk exposure period is:

• If COVID-19 symptoms present: from two days before symptoms first developed symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever without the use of fever-reducing medications, and symptoms have improved.
• If COVID-19 symptoms not present: from two days before until 10 days after the specimen for the first positive test for COVID-19 was collected.

These specific rules should provide businesses with greater certainty in determining which employees should quarantine due to exposure to COVID-19. They also highlight the importance of instructing employees not to come to work when they have symptoms of COVID-19 or suspect they have been exposed to COVID-19. The less time a potentially ill person spends at the dealership, the less likely the employee will cause additional exposures.

SB 1159: COVID-19 and Workers’ Compensation

California passed SB 1159 in the fall, and it went into immediate effect. The law formalizes the State’s approach to COVID-19 and workers’ compensation. First, it creates a rebuttable presumption that an employee contracted COVID-19 at work if all of the following apply:

• The employee works for the employer with five or more employees;
• The employee tests positive for COVID-19 within 14 days after reporting to his or her place of employment; and
• This occurs during a COVID-19 “outbreak” at the employee’s specific workplace.

For most dealers, an outbreak occurs when, over a 14 day period, four or more employees test positive for COVID-19 at a single dealership facility. Specifically, if a workplace has 100 or fewer employees, the threshold for an outbreak is four employees; if the workplace has more than 100 employees, the threshold is 4%.

A workplace is defined as a “building, store, facility or agricultural field” and does not include an employee’s home. For dealerships with a single facility, we recommend treating that as a single workplace. If it has two or more facilities on the same lot, we recommend treating them as two separate facilities unless employees regularly use space in both facilities. Facilities that are on different lots should be treated as separate workplaces. Individual employees who work at multiple workplaces should be counted as a positive case at each facility they work at.

If the local or state health department shuts the workplace down due to the risk of COVID-19 infection, the workplace is deemed to be experiencing an outbreak. San Diego County has not shutdown a dealership in at least the last 60 days, but it retains the authority to do so.

The second major change due to the law is clarification regarding requirements to report COVID-19 cases to workers’ compensation claims administrators. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report this to their workers’ compensation claims administrator. This report must be made within three business days and in writing by email or fax. Your claims administrator may have created a form for this purpose.
Employers may be subject to civil penalties of up to $10,000 for violating these reporting requirements.

AB 685: Notices Regarding Positive COVID-19 Cases or Exposure

Starting Jan. 1, 2021, if an employer learns that an employee has tested positive for COVID-19, the employer must provide employees, their union representatives, and the employer of any subcontracted employees with notice of the positive case and provide special notice to those who have been exposed to COVID-19. This notice must go out to employees within one business day. Please note that the privacy of the positive employee must be protected during this process. Also, if three or more people within 14 days test positive, the employer must do the following:

For all employees at the workplace:

• Provide a written notice that they may have been exposed to COVID-19.
• Provide information regarding the disinfection and safety plan that the employer plans to implement and complete per the federal Centers for Disease Control guidelines.
• Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits. The employee may be entitled to applicable federal, state or local laws. These may include, but are not limited to, workers’ compensation and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections for the employee.
• Notify all employees and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the federal Centers for Disease Control guidelines.
• If an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State department of public health, within 48 hours, the employer shall notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who tested positive.

Notably, though, San Diego County requires that essential open businesses report all positive, lab-confirmed cases of COVID-19 to the County department of public health in a prompt fashion. The report must include the name, date of birth, and contact information of the employee. The business must also cooperate with the Department to notify any exposed employees at the workplace.

San Diego Health Order

Local governments may still issue rules that are more restrictive than state or local guidelines and laws. For example, San Diego County’s Feb. 6, 2021 health order still requires that non-essential businesses remain closed for in-person services. It prohibits travel by residents except attending work at our shop at essential businesses or other authorized sectors. However, for dealers classified as essential businesses, the local health order largely tracks state guidance, except where noted in this article (note the discussion regarding reporting positive cases of COVID above).

With luck, San Diego dealers will see a loosening of COVID restrictions as positive cases continue to decline and the number of vaccinated residents increases. In the meantime, it remains important to comply with federal, state and local rules.