Legal Alerts Sep 23, 2020

Workers’ Compensation Presumption for COVID-19 Contracted in the Workplace

Senate Bill 1159 Takes Effect Immediately

Workers’ Compensation Presumption for COVID-19 Contracted in the Workplace

A new California law extends a workers’ compensation presumption for employees who test positive for COVID-19 contracted in the workplace. Senate Bill 1159, signed by Gov. Gavin Newsom last week, extends the COVID-19 presumptions that were contained in a now-expired executive order Newsom signed in May.
 
SB 1159 extends a COVID-19 presumption to:

  1. employees who worked between March 19 and July 5, and tested positive within 14 days of reporting to work,
  2. first responders and health care workers who are diagnosed with COVID-19 after working on or after July 6 and
  3. certain employees who work with employers who have five or more employees and who are diagnosed with COVID-19 after working on or after July 6.
 

Because SB 1159 goes into effect immediately, employers should begin documenting incidents of potential COVID-19 exposure in the workplace and maintaining records of employee schedules at each worksite immediately.
 
Employees Diagnosed Between March 19 and July 5:
California Labor Code section 3212.86 essentially codifies the previous executive order. Any employee who reported to work between March 19 and July 5, and tested positive or was diagnosed with COVID-19 within 14 days of being in the workplace, has a rebuttable presumption that the illness is “industrial.” The employer has 30 days to provide controverted evidence to dispute this presumption. If there is no evidence within 30 days, the claim administrator must find industrial causation (resulting in the employee receiving workers’ compensation benefits.)
 
First Responders and Health Care Workers:
Firefighters, peace officers, certain health care workers, emergency medical personnel and home health care employees who reported to work on or after July 6, and who test positive for COVID-19 within 14 days of reporting to work, have a rebuttable presumption of industrial causation for a workers’ compensation claim. Again, the employer has 30 days to provide controverted evidence to dispute this presumption. If there is no evidence within 30 days, the claim administrator must accept the presumption and find industrial causation.
 
However, if an employer can establish that an employee of a health care facility did not have contact with a health facility patient in the previous 14 days who tested positive for COVID-19, this presumption will not apply.
 
All Other Employees:
For employers with five or more employees, if an employee who reported to work on or after July 6 and there is or was a COVID-19 “outbreak” at their specific place of employment, and that employee tests positive within 14 days of reporting to work during an outbreak, the employee obtains a rebuttable presumption for a workers’ compensation claim. However, the employer has 45 days to provide controverted evidence to dispute this presumption. If there is no evidence within 45 days, the claim administrator must accept the presumption. An “outbreak” for these purposes is present if, within 14 calendar days:

  1. Four employees test positive for COVID-19 at a location with 100 or fewer employees,
  2. 4 percent of employees test positive for COVID-19 at a location with more than 100 employees or
  3. The location is ordered closed by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health or a school superintendent due to a risk of COVID-19 infection.

 
Benefits:
If the claims administrator finds that the presumption applies, then the employee is entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” However, the Department of Industrial Relations has waived its right to collect any death benefit payment under Labor Code section 4706.5 if the employee did not have any dependents.
 
An employee who has COVID-19-related paid sick leave benefits available must use and exhaust those benefits before any other benefits are payable. If the employee does not have COVID-19-related paid sick leave benefits available, then the employee will not have a waiting period, and instead will be provided temporary disability benefits from the date of disability.
 
New Reporting Requirements:
SB 1159 also places an affirmative duty on the employer to report positive COVID-19 results to their claims administrator. When the employer knows, or reasonably should know, of a positive COVID-19 result by its employee, the employer must report the following to their claims administrator in writing within three business days:

  1. An employee tested positive (without any personally identifiable information unless the employee claims the infection is work related or has filed a claim form),
  2. The date the employee’s specimen was collected,
  3. The address(es) of the place of employment during the 14 preceding days and
  4. The highest number of employees who reported to work at that location in the previous 45 days.
 

Related: Watch for a Legal Alert tomorrow on Assembly Bill 685, which addresses employer’s obligations when an employee tests positive for COVID-19.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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