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State COVID-19 rules pose risks to employers

A recent eye-popping headline in The Bakersfield Californian that reported a Kern County agricultural company and its three labor contractors have been fined $77,500 by a state agency for failing to protect workers from contracting COVID-19 should give all employers cause to worry.

As reported by the newspaper, citations issued by the state Department of Industrial Relations accused the companies of not having a plan to protect workers, or failing to properly train them. The citations, which stemmed from COVID-19 outbreaks in May and June 2020, alleged that workers were placed too close together at Primex Farms’ Wasco pistachio and almond processing and packing plant, often without face masks and without adequate sanitation facilities.

Issued in December, the citations reportedly levied $27,500 in penalties against the plant’s Los Angeles-based owner Primex Farms LLC; $27,500 against San Luis Obispo-based United Staffing Associates LLC; $11,250 against Bakersfield-based H&R Labor Contracting LLC; and $11,250 against Selma-based Jacobo Farm Labor Services Inc.

Regarding the COVID-19 outbreak, which was spotlighted in the media by the United Farm Workers, Primex said in late June that 31 plant workers had tested positive for the virus. However, the union contends the number had risen to 80 by early July. And that number did not include 36 positive tests among the families of plant workers.

In July and later in December, representatives of the companies denied the allegations, contending the Wasco operation was complying with state COVID-19 rules.

The Wasco case likely is a sign of more employer liability to come as Republicans and Democrats are on a collision course in Congress over attempts to indemnify private companies, nonprofit organizations and government agencies from COVID-19 “injuries” as the pandemic continues to spread in workplaces in California and throughout the nation.

With Congress soon to be asked to pass another round of COVID-19 relief legislation, Republicans are pushing to at least limit employer liability, while Democrats are aiming to hold companies accountable.

Among the safety laws the California Legislature passed last year are Senate Bill 1159 and Assembly Bill 685, which place increased responsibilities on employers to protect workers, and to notify state and local agencies and employees of workplace outbreaks.

SB 1150 designates a wide range of circumstances in which it will be presumed under the law that an employee contracted COVID-19 at the workplace. This would result in the employee being entitled to workers’ compensation coverage.

In a nutshell, California employers must follow all COVID-19 safety precautions, keep records, report positive COVID-19 tests to their workers’ compensation claims administrator, and coordinate responses with affected employees.

AB 685 requires employers to provide written notices of potential exposure to COVID-19 to employees, subcontractors and union representatives who were on site during an infection period.

Essentially, the law, which will be in effect until Jan. 1, 2023, requires employers to immediately update their policies and procedures to comply with COVID-19 rules, and create a process for notifying employees and public health departments.

As the challenges of the COVID-19 pandemic continue to change and expand, so do employer responsibilities. To keep up with these changes, keep workers safe and limit risks, employers should:

  • Regularly check the state Department of Industrial Relations website for updates. Go to https://www.dir.ca.gov/
  • Unless a company has transitioned to an exclusively “remote” workplace, where employees no longer report on site, a manager, or team of managers should be designated to coordinate COVID-19 compliance, including providing workers with protective devices, safety training, worker separation and access to sanitation facilities. Notification procedures must be developed and implemented to comply with state law.

To allow Kern’s economy to open, businesses to operate and workers to be safe, the pandemic must be controlled. That means state and federal laws must be followed.

Karen Bonanno is president of the Bakersfield-based human resources consulting firm P.A.S. Associates and P.A.S. Investigations. She can be contacted through her website www.PASassociates.com and through the P.A.S. Facebook page.

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