October.05.2020
On September 17, 2020, California Governor Newsom signed SB-1159. Effective immediately, the bill adds three new sections to the California Labor Code (§§ 3212.86-3212.88) which create a rebuttable presumption that certain employees who test positive for COVID-19 contracted it in the workplace. For these employees, the legislation modifies the definition of “injury” for the purposes of workers’ compensation, to include illness or death resulting from COVID-19. The legislation also creates a COVID-19 reporting requirement for employers who employ at least five employees, and makes several other nuanced changes to the way employers must treat workers’ compensation claims based on COVID-19 infections.
The text of the newly enacted legislation can be found here. The California Department of Industrial Relations also posted FAQs for the legislation, which can be found here. Below are the key takeaways from this new law for employers. The new law will sunset on January 1, 2023.
For employers who employ at least five employees, the statute provides that an employee who tests positive for COVID-19 on or after July 6, 2020, is entitled to a presumption that illness or death resulting from COVID-19 arose in the course of his or her employment, if:
“A specific place of employment” means the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. “A specific place of employment” does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence.[2]
The positive test must be the result of a PCR test approved for use or approved for emergency use by the FDA to detect the presence of viral RNA. It may also be the result of any other viral culture test approved for use or emergency use by the FDA to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test. However, the positive test cannot be the result of serologic testing, also known as antibody testing.[3]
An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:
For the purposes of the employee’s workers’ compensation claim, the employee’s date of injury is the last date he or she worked at his or her place of employment prior to the positive test.[5] The employer may seek to rebut the presumption with relevant evidence. This includes, but is not limited to, evidence of its measures to reduce transmission of COVID-19 at work and evidence of the employee’s nonoccupational risks of infection.[6] However, if the employer does not rebut the claim within 45 days of the employee filing a workers’ compensation claim, then the presumption can only be rebutted by new information that was not discovered during the 45-day period.[7] If an employee has paid sick leave benefits available in response to COVID-19, they must be exhausted before collecting temporary disability benefits. However, if an employee does not have those benefits, then he or she shall be provided temporary disability benefits from the date of disability without a waiting period.[8]
The statute also requires that employers who employ at least five employees report the following to their workers’ compensation claims administrators within three business days if they know or reasonably should know that an employee has tested positive for COVID-19:
These employers must also report the above information for any COVID-19 infections that occurred between July 6 and the effective date of the statute (September 17, 2020) by no later than October 17, 2020.[10] However, for these infections, instead of the information identified in (4) above, employers must report the highest number of employees who reported to work at each of the places of employment between July 6, 2020, and September 17, 2020.[11] Employers who fail to make the above reports are subject to a fine of up to $10,000.[12] Workers’ compensation claims administrators will use the reports to determine whether an outbreak has occurred.[13]
For employers who employ first responders, medical personnel, and certain personnel who work at health care facilities, the statute provides that any one of these employees who tests positive for COVID-19 on or after July 6, 2020, is entitled to a presumption that illness or death resulting from COVID-19 arose in the course of his or her employment, as long as the employee tests positive for COVID-19 within 14 days of working at his or her place of employment.[14]
For the purposes of the employee’s workers’ compensation claim, the employee’s date of injury is the last date he or she worked at his or her place of employment prior to the positive test.[15] The employer may seek to rebut the presumption, but if the employer does not rebut the claim within 30 days of the employee filing a workers’ compensation claim, then the presumption can only be rebutted by new information that was not discovered during the 30-day period.[16] If an employee has paid sick leave benefits available in response to COVID-19, they must be exhausted before collecting temporary disability benefits. However, if an employee does not have those benefits, then he or she shall be provided temporary disability benefits from the date of disability without a waiting period.[17]
Employers are likely already familiar with Governor Newsom’s Executive Order N-62-20, which expired on July 5, 2020. Executive Order N-62-20 created a rebuttable presumption that employees who tested positive for COVID-19 between March 19 and July 5, 2020, while working outside the home, contracted the virus at work. SB1159 codifies many parts of that emergency order, as detailed below. There is a one-year statute of limitations on workers’ compensation claims.[18]
For employers who employed any employees between March 19–July 5, 2020, the statute provides that an employee who tests positive for or was diagnosed with COVID-19 between March 19–July 5, 2020, is entitled to a presumption that illness or death resulting from COVID-19 arose in the course of his or her employment, if he or she tested positive for or was diagnosed with COVID-19 within 14 days of working at his or her place of employment.[19] If the employee was diagnosed with COVID-19 instead of testing positive, the diagnosis must have been performed by a licensed physician and surgeon holding an M.D. or D.O. degree or a state-licensed physician assistant or nurse practitioner acting under the review or supervision of a physician, and the diagnosis must have been confirmed by testing or by a COVID-19 serologic test within 30 days of the diagnosis.[20]
For the purposes of the employee’s workers’ compensation claim, the employee’s date of injury is the last date he or she worked at his or her place of employment prior to the positive test.[21] The employer may seek to rebut the presumption, but if the employer does not rebut the claim within 30 days of the employee filing a workers’ compensation claim, then the presumption can only be rebutted by new information that was not discovered during the 30-day period.[22] If an employee has paid sick leave benefits available in response to COVID-19, they must be exhausted before collecting temporary disability benefits. However, if an employee does not have those benefits, then he or she shall be provided temporary disability benefits from the date of disability without a waiting period.[23]
For the purposes of receiving disability benefits, if the employee tested positive or was diagnosed with COVID-19 between March 19 and May 5, 2020, the employee must have obtained a physician’s certification documenting the period of temporary disability and inability to work by May 21, 2020, and must have been recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.[24] If the employee tested positive or was diagnosed with COVID-19 between May 6 and July 5, 2020, the employee must have been certified for temporary disability within the first 15 days after the initial diagnosis, and must have been recertified for temporary disability every 15 days thereafter for the first 45 days following diagnosis.[25]
If your company has employees who contracted COVID-19 since March 2020 while working at their place of employment (outside of the home), consult with counsel and comply with the reporting requirements for this new law.
[1] Cal. Lab. Code § 3212.88(b)(1)-(3).
[2] Cal. Lab. Code § 3212.88(m)(3).
[3] Cal. Lab. Code § 3212.88(m)(2).
[4] Cal. Lab. Code § 3212.88(m)(4).
[5] Cal. Lab. Code § 3212.88(b)(2).
[6] Cal. Lab. Code § 3212.88(e)(2).
[7] Cal. Lab. Code § 3212.88(f).
[8] Cal. Lab. Code § 3212.88(d).
[9] Cal. Lab. Code § 3212.88(i).
[10] Cal. Lab. Code § 3212.88(k)(2).
[11] Cal. Lab. Code § 3212.88(k)(2).
[12] Cal. Lab. Code § 3212.88(j).
[13] Cal. Lab. Code § 3212.88(k)(1).
[14] Cal. Lab. Code § 3212.87(b)(1).
[15] Cal. Lab. Code § 3212.87(b)(2).
[16] Cal. Lab. Code § 3212.87(f).
[17] Cal. Lab. Code § 3212.87(d).
[18] Chavez v. Workmen's Comp. Appeals Bd., 31 Cal. App. 3d 5, 14 (1973).
[19] Cal. Lab. Code § 3212.86(b)(1)-(2).
[20] Cal. Lab. Code § 3212.86(b)(3).
[21] Cal. Lab. Code § 3212.86(b)(2).
[22] Cal. Lab. Code § 3212.86(f).
[23] Cal. Lab. Code § 3212.86(d)(1).
[24] Cal. Lab. Code § 3212.86(d)(2)(B).
[25] Cal. Lab. Code § 3212.86(d)(2)(A).