On September 17, 2020, California enacted SB 1159, which imposes certain reporting requirements on California employers. SB 1159 also creates a “disputable presumption” that employees who contract COVID-19 did so in the course of employment for the purpose of obtaining workers’ compensation benefits, under certain conditions.
This legislation follows the Governor’s Executive Order N-62-20 signed on May 6, 2020, which created a disputable presumption that employees contracted COVID-19 at work and would be eligible for workers’ compensation benefits under specific circumstances. The Executive Order expired on July 5, 2020. The new law incorporates the Executive Order into the statute for the period between March 19, 2020 through July 5, 2020, and adds additional framework for COVID-19-related illnesses that occur between July 6, 2020 and January 1, 2023, at which point the presumption will no longer apply. The law went into effect immediately as emergency legislation. (See Labor Code section 3212.86.)
Requirements for Coverage
The disputable presumption applies to all employees who test positive during an “outbreak” at the employee’s “specific place of employment,” as long as the employer has 5 or more employees and the following circumstances apply (See Labor Code section 3212.88(a).):
- The employee tests positive for COVID-19 within 14 days after the employee performed labor or services at the employee’s place of employment at the employer’s direction.
- The day on which the employee performed labor or services at the employee’s place of employment was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
- The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
“Specific Place of Employment”
The law defines a “specific place of employment” as a building, store, facility, or agricultural field where an employee performs work at the employer’s direction. This does not include the employee’s home or residence, unless the employee is providing home health care services to someone else in the employee’s home. (See Labor Code section 3212.88(m)(3).)
For an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s test shall be counted for the purpose of determining the existence of an outbreak at each of those places of employment. If an outbreak exists at any one of those places of employment, that shall be the employee’s “specific place of employment.” (See Labor Code section 3212.88(m)(3)(B).)
An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment (See Labor Code section 3212.88(m)(4)):
- For employers with 100 employees or fewer, 4 employees test positive for COVID-19.
- For employers with 100 employees or more, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
- A specific place of employment is ordered closed by a local/state public health department, CAL-OSHA, or a school superintendent.
There must be an “outbreak” during which an employee tests positive for the presumption to apply. If there is no “outbreak”, then the presumption does not apply.
Employer’s Duty to Report COVID-19 Claims
From September 17, 2020 forward, when an employer knows or has reason to believe that an employee has tested positive for COVID-19, the employer shall report to its workers’ compensation claims administrator, in writing via electronic mail or facsimile within three business days, all of the following (Labor Code section 3212.88(i)):
- An employee has tested positive. The employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work-related or has filed a workplace injury claim form.
- The date the employee tests positive, which is the date the specimen was collected for testing.
- The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
- The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
This reporting obligation applies even if the employee is not making an allegation of workplace exposure.
If an employer is aware of an employee who tested positive on or after July 6, 2020 and prior to September 17, 2020, then the employer must report the required information in numbers 1-4 above to its workers’ compensation claims administrator within 30 business days from September 17, 2020 (as opposed to the 3 business day requirement for reporting after September 17, 2020). For the information contained in number 4 above, the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020 and September 17, 2020. (See Labor Code Section 3212.88(k)(2).)
An employer who intentionally submits false or misleading information or fails to submit the required information may face a civil penalty of up to $10,000. (See Labor Code section 3212.88(j).)
Compensation payable under the law where the presumption applies and is not overcome includes full hospital, surgical, medical treatment, disability indemnity, and death benefits. (Labor Code section 3212.88(c).)
The law requires an employee to exhaust paid sick leave benefits specifically available in response to COVID-19, such as those under the Families First Coronavirus Response Act and sick leave benefits under Education Code sections 44977, 44984, 45192, or 45196, prior to receiving any temporary disability benefits. If an employee does not have sick leave benefits, the employee shall be provided temporary disability benefits without a waiting period. (See Labor Code section 3212.88(d).)
Disputing the Presumption
An employer can dispute the presumption if it can provide evidence that there were measures in place to reduce the transmission of COVID-19 and evidence of an employee’s non-occupational risks of COVID-19 infection. (See Labor Code section 3212.88(e).)
The workers’ compensation claim carrier has 45 days to reject the claim after the date it is filed, or the illness shall be presumed compensable (non-COVID-19 related claims provide 90 days to reject a claim). (See Labor Code section 3212.88(f).) The Governor’s Executive Order that was incorporated into the statute for the period covering March 19, 2020 to July 5, 2020 maintains the 30 day period for a claim to be rejected after the date it is filed. (See Labor Code section 3212.86(f).)
The laws surrounding COVID-19 infections have been changing rapidly. As stated above, employers that are aware of employees that tested positive for COVID-19 from July 6, 2020 through September 16, 2020 must notify their claim administrator by October 29, 2020. If you have any questions surrounding the extensive COVID-19 legislations, please do not hesitate to contact NavBat.