Expanded Presumption of Workers Compensation Coverage for Employees with COVID-19 in California: Most Employers with Five or More Employees Must Report Positive Cases To their Workers Compensation Carriers

As many California employers are aware, Governor Newsom issued an Executive Order in May of 2020 creating a disputable presumption that employees, who test positive for COVID-19 within 14 days of performing work at the employer’s place of business, contracted the virus while at work.  That Order expired on July 5, 2020.

On September 17, 2020, Governor Newsom signed SB 1159 into law effective immediately.  SB 1159 establishes a disputable presumption that a COVID-19 infection arose out of, and, in the course of employment, if:

• The employer has five or more employees; and
• The infected employee tested positive for COVID-19 during an “outbreak” at the employee’s “specific place of employment”; and
• The infected employee tests positive for COVID-19 within 14 days of performing work (on or after July 6, 2020) at the employee’s place of employment at the employer’s direction.

Certain emergency responders and healthcare workers who test positive for COVID-19, are covered in a separate section of SB 1159.  There is also a presumption of work-relatedness when one of these employees tests positive for COVID-19 in certain circumstances, but the requirements relating to an “outbreak” at the place of employment do not apply.[1]

What is the “specific place of employment”?

SB 1159 defines a “specific place of employment” as “the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.”  It 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.

What is an “outbreak”?

An “outbreak” can occur at a “specific place of employment” if: (1)  the place of employment has been ordered to close by a local public health department or the State public health department, OSHA, or a school superintendent due to a risk of COVID-19 infection; or (2)  there are a certain number of COVID-19 infections within a 14-calendar-day period.  Specifically, an “outbreak” exists if, within a 14-day period, four or more employees at a place with 100 employees or fewer test positive for COVID-19 or 4% of employees at a place with more than 100 employees.

Do I Have to Notify My Worker’s Compensation Carrier if an Employee Tests Positive?

Yes.  Employers have a duty to notify their workers compensation carrier (by email or fax) within three business days of when the employer knows or has reason to know that an employee tested positive for COVID-19.  If an employee tested positive on or after July 6, 2020 but before the effective date of SB 1159 (September 17, 2020), the employer must provide notice within 30 business days of September 17, 2020.

The notice must include:

• The date the specimen was collected for testing;
• The address(es) of employee’s specific places of employment for the 14-day period prior to the collection of the specimen; and
• 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.
• In the case of positive tests occurring before the effective date, the employer should report the highest number of employees at the worksite(s) between July 6 and September 17, 2020.

However, the notice must not include any personally identifiable information about the employee unless the employee has asserted the infection is work-related or already filed a workers’ compensation claim.

An employer who intentionally submits false or misleading information or fails to submit information may be subject to a civil penalty of up to $10,000.

Does this Mean All Positive Tests Create Valid Workers Comp Claims?

No. SB 1159 creates a presumption that illness or death due to COVID-19 is work-related in the circumstances described above.  The presumption, if it applies, may be rebutted with evidence such as the measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.

By following SB 1159’s reporting requirements and all applicable guidelines for safe workplaces, employers can minimize risk of work-related exposure and help establish evidence to dispute the presumption of work-related infection.

SB 1159 will remain in effect until January 1, 2023.

If you have questions or concerns about how COVID-19 impacts your obligations as an employer, please contact the Rogers Joseph O’Donnell attorney with whom you regularly work or a member of our employment law team at employmentlaw@rjo.com.  We are here to help.

[1] According to the Department of Industrial Relations, “[t]his bill limits the risk of employers being liable for claims where the infection did not occur at work by tailoring the presumptions to those first responders and frontline health care workers whose work puts them at the greatest risk of exposure and other employees where there is a demonstrated and verifiable COVID-19 outbreak at their worksite.”  https://www.dir.ca.gov/dwc/Covid-19/FAQ-SB-1159.html  The remainder of this alert relates to employees other than those emergency responders and healthcare workers.