By Vicky Boyd
Gov. Gavin Newsom recently signed two bills expanding worker benefits that could hit producers with as few as five employees in the pocketbook.
“It’s just more and more burden on the family farmer and more and more costs on the family farmer,” said San Joaquin Farm Bureau First President Ken Vogel, who farms cherries and walnuts near Linden.
His two sons work with him as well as a full-time and a part-time employee, putting him near the five-employee threshold. Vogel also hires a consultant to prepare his food safety plans.
“Are they going to start counting those hours as a quarter-time employee?” he said, referring to the food safety expert. “It’s just not good.”
Senate Bill 1159 by Sen. Jerry Hill, D-San Mateo, adds COVID-19 to the list of illnesses covered by workers’ compensation and makes a disputable presumption that employees caught the virus at work. It essentially codifies an executive order enacted March 19 and adds a few more provisions. The bill remains in effect until Jan. 1, 2023.
SB 1383 by Sen. Hannah-Beth Jackson, D-Santa Barbara, expands the California Family Rights Act by adding several “family members” for whom employees may take up to 12 weeks of unpaid protected leave to care.
To help the ag industry better understand the new laws, the Farm Employers Labor Service recently hosted two virtual seminars.
Workers’ comp COVID presumption
As an emergency statute, SB 1159 became effective immediately after the governor signed it Sept. 17. It codifies an executive order Newsom made March 19 when he issued a state of emergency due to COVID-19, said Taylor Arnold, an associate attorney with Hanna Brophy’s Oakland office.
The firm, which specializes in employer workers’ comp defense, has set up a COVID-19 response unit in each of its 19 offices statewide. Arnold was joined on the webinar by Keith Teague, an associate attorney in Hanna Brophy’s Fresno office. Because of the complexity of SB 1159, they suggested employers consult with their own attorneys and workers’ comp carriers.
Under the bill, workers are presumed to have been injured by the coronavirus on the job and can receive workers’ comp if a number of provisions are met. Employees must test positive, using a PCR or other Food and Drug Administrative-approved test, within 14 days of when they last worked.
Employees are only eligible for workers’ comp if the outbreak definition is met. For employers with fewer than 100 employees at one worksite, an outbreak is considered to be at least four COVID-positive workers within a 14-day period. For employers with more than 100 workers at one site, the threshold is 4% infection.
“An outbreak only occurs at a specific place of employment,” Teague said. “If you have five sites, it’s only the site where the employees who tested positive worked. If you have multiple sites, it’s a good idea to strictly lock employees down to one specific site” rather than having them move among the locations.
Where it gets more complicated is if you deal with contractors.
“Are they your employees or someone else’s?” Teague said. “Do you need to keep track of all workers or just your employees? In general, employers need to be aware of who’s coming onto their premises and cooperative with the contractor to monitor their exposure.”
SJFB President David Strecker likened managing COVID-19 to state heat-illness prevention rules developed more than a decade ago. Farmers and their workers have learned ways to prevent heat issues as well as identify workers suffering from the early stages of heat illness so they can receive treatment.
“Heat illness was something that may have been a problem, but everyone’s aware of it now and they know how to prepare,” he said. “And COVID-19, I feel, should be treated the same way.
“Most important is educating your workers – where are they off hours, what are they doing to prevent COVID and what steps are they taking to educate themselves about COVID? I think if you compared March and April to now, what was fear then has now trended to fatigue. That’s where education is important – that people are still aware of it and they’re not just pushing it aside.”
SB 1159 also establishes new reporting requirements. When an employer with five or more employees “knows or reasonably should know” that an employee tests positive for COVID-19, the employer must inform their workers’ compensation carrier within three business days of the test result.
In addition, employers can challenge the employees’ claims that they contracted COVID-19 at the workplace, but it can be a difficult argument, Arnold said.
“Anything you can do to keep those numbers down to prevent that outbreak will significantly help you out and prevent that presumption from occurring,” Teague said.
Expanded California Family Rights Act
SB 1383 amended the California Family Rights Act to apply to much smaller private employers with five or more workers compared to the previous threshold of 50 employees. It also removed the requirement that those 50 employees work within 75 miles of the worksite to qualify.
While Strecker said he holds the health of workers and their families in the highest esteem, SB 1383 reinforces a concerning trend.
“Obviously, families and health is first on all of our lists,” he said. “But it seems we’re going down a trend of creating excuses for people not to work. The economics of supplying the world with food isn’t going to work if people aren’t working.”
Unlike some industries that are year-round, Strecker said farming is typically seasonal. If a worker takes off several weeks to care for family, they may miss much of the production season, creating a hardship for the small-scale employer.
SB 1383’s requirements become effective Jan. 1, 2021, “so there’s not a heck of a lot of time to begin and develop policies to comply with this stuff,” said Seth Mehrten, an attorney with Fresno-based Barsamian & Moody who spoke during one of the webinars. A law firm that exclusively represents employers, B&M focuses on growers, packers, shippers and farm labor contractors.
Historically, CFRA only allowed employee leave for the birth of a child; the adoption or fostering of a child; and to care for themselves, a spouse, registered domestic partner, minor son or daughter, or parent with a serious health condition.
SB 1383 expands the list of family members for whom a worker can take time off to care to include siblings, grandparents and grandchildren. In addition, it expands the existing definition of child to cover adult children, whether or not they’re still dependents, and children of domestic partners.
Because the state has separate California Pregnancy Disability Leave, pregnant employees didn’t qualify under CFRA, and SB 1383 didn’t change that.
But the new legislation did expand baby bonding leave to care for a newborn. Previously, if two parents worked for the same employer, they only received 12 weeks of combined leave. Now each parent is eligible for up to 12 weeks of baby bonding leave.
Previously, only the federal Family Medical Leave Act allowed leave to employees who were on active military duty or called to active duty related to foreign deployment. SB 1383 adds that to the list of eligible state-covered leave.
Under the legislation, employees may take up to 12 weeks of unpaid leave during a 12-month period in which they worked at least 1,250 hours. It doesn’t have to be taken in one block and can be taken intermittently, Mehrten said.
During the leave, the employer must continue to pay health insurance premiums at the same level and typically must reinstate the employee in the same or virtually identical position had the employee not taken leave, he said.
Historically, California family leave rules mirrored those of FMLA, and benefits ran concurrently. But with CFRA’s expanded reach, there could be more scenarios of an employee taking protected unpaid leave for up to 24 weeks in a 12-month period, Mehrten said.
An employee, for example, could take CFRA leave to care for a grandchild with a serious health issue. But the employee would still have 12 weeks of FMLA available during the same 12-month period to care for a spouse, parent or minor child.