California Governor Gavin Newsom signed Senate Bill 1159 (“SB 1159”) into law, codifying his previous Executive Order which established a legal presumption that certain workers with a COVID-19 related illness developed that illness in the course of their employment. The new law extends the timeline of the presumption until 2023 and imposes additional requirements.
What Changed. As explained in our previous issue of Compliance Matters, the Executive Order from May 6, 2020 established a legal presumption that a worker with a COVID-19 related illness contracted that illness in the course of their employment. As such, the illness would be covered under the employer's workers' compensation insurance.
Before the Executive Order, workers had the burden of proving that their injury arose both out of and in the course of their employment. That changed with the passage of the Executive Order and now this new law.
In addition, the Executive Order shortened the length of time insurance companies had to reject a workers’ comp claim from 90 days to just 30 days. If an insurance company does not timely reject the COVID-19 related claim (within the 30 days), then the illness is presumed compensable and may only be rebutted with evidence that was discovered after the 30-day period.
SB 1159 keeps the obligations imposed by the previous Executive Order in place for COVID-19 related injuries occurring between March 19, 2020 and July 5, 2020. However, the new law makes significant changes for COVID-19 injuries occurring after July 5, 2020, including a requirement that the COVID-19 injury occur during an “outbreak” and the imposition of new reporting obligations, as discussed below.
Application. SB 1159 contains one section applicable to frontline workers (e.g., firefighters, peace officers, and healthcare workers) and another section applicable to everyone else. For the frontline workers, the requirements remain unchanged from the previous Executive Order.
Eligible Workers. The presumption that a worker’s COVID-19 related illness arose out of and in the course of employment shall apply where all of the following are satisfied:
Employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employer’s place of employment at the employer’s direction;
The alleged injury occurred at the place of employment on or after July 6, 2020;
The employee’s place of employment was not his or her home or residence;
- The COVID-19 test in question was one of those approved for use (or approved for emergency use) by the FDA (note: antibody tests do not qualify); and
Employee’s positive test occurred during a period of an outbreak (as defined) at the employee’s specific place of employment.
“Outbreak” at Employee’s Specific Place of Employment. Unlike the previous Executive Order, the presumption only applies if the positive test occurs as part of an “outbreak” at one of the employer’s locations. The determination depends upon the number of employees working at the facility where the alleged injury occurred. Under the new law, an “outbreak” exists if just one of the following occurs at a specific place of employment within a period of 14 days:
- Four (4) employees test positive for COVID-19 (this applies for locations with 100 or fewer employees);
- Four percent (4%) of the employees who report to the location test positive for COVID-19 (this applies in locations with over 100 employees); or
- The location is ordered to close by a public health department due to risk of COVID-19 (regardless of size).
Reporting Requirements. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report all of the following to their claims administrator in writing via electronic mail or facsimile within three (3) business days:
- That an employee has tested positive. Note: the report should contain no personally identifiable information about the employee who has fallen ill unless the employee asserts that the infection is work related or has filed a workers’ compensation claim form;
- The date the specimen was collected for testing;
- Specific address of the employee’s place of employment during the 14-day period preceding the date of the positive test; and
- The highest number of employees who reported to work at the employee’s place of employment in the 45-day period preceding the last day the employee worked at each place of employment.
The law also requires reporting on positive COVID-19 testing that may have occurred before the new law was signed. If an employer is aware of any employee(s) previously testing positive on or after July 6, 2020, then the employer must make that report (with all of the above information) by October 17, 2020. Instead of reporting the highest number of employees who reported to work at the employee’s place of employment in the 45-day period preceding the last day the employee worked at each location, the employer must report the highest number of employees who reported to work at each location on any given work day between July 6, 2020 and October 17, 2020.
Rebutting the Presumption. SB 1159 provides specific methods to enable employers to rebut the presumption that the COVID-19 infection occurred in the course of employment. The law states that employers may offer evidence concerning the measures it took to reduce the potential transmission of COVID-19 and any evidence of the employee’s non-occupational COVID-19 exposure risks (such as the employee resided with an individual that tested positive for COVID-19).
What Employers Can Do. Employers must continue to keep track of employees who test positive for COVID-19 and follow the reporting requirements described above. If an employee tested positive for COVID-19 on or after July 6, 2020, then the employer must comply with the reporting requirements outlined above by the October 17, 2020 deadline. Moreover, employers should continue to closely adhere to applicable health guidelines regarding the establishment of a safe work environment. Such measures will help employers rebut the presumption that employees contracted COVID-19 at the workplace.
We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP